About this case:

• Citation:
  [2022] NICA 42
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Lord Justice Treacy

The court noted that the delay had been caused by the appellant’s own actions in choosing to flee the jurisdiction following an explosion.

Background

Following a non-jury trial, the appellant was convicted of unlawfully and maliciously causing an explosion at a police station of a nature likely to endanger life or cause serious injury to property, contrary to section 2 of the Explosive Substances Act 1883. He appealed against that conviction.

In 1997, Soldier A was in Coalisland when he observed two men, each appearing to be carrying an object in their hands, running into an alleyway leading to the rear of the police station.

He then heard what he considered to be two explosions and observed the same two men running out of the alleyway and towards him. Believing his life to be in danger, he discharged rounds of ammunition from his service pistol.

One of the men was struck by the gunfire and was apprehended at the scene. The soldier described the other man as getting into a white coloured vehicle which was driven off.

Shots were also fired in the direction of this man and at the vehicle. The man who was apprehended at the scene was convicted. The prosecution’s case was that the other man was the appellant.

The appellant, instead, claimed that he was innocent. He admitted that he was there that night, heard a loud explosion and then gunshots. He felt a burning sensation between his legs, was fearful of sustaining further injury, and got into a white vehicle which then drove away.

An army technical officer stated that the explosion was caused by about 500–750 grams of military or commercial explosives and it damaged the cladding to the perimeter wall but did not penetrate through the inner brick of the structure.

Hearsay application

Father Rice, a priest serving in the Coalisland Parish, was present at the time of the incident. He made six statements during the police investigation, including that he was driving his car in the area, he had heard bangs and observed flashes, and he left the scene.

He heard his name being mentioned and stopped the car. The rear passenger door opened, and a young man entered. The man shouted “drive” and Father Rice drove in the direction of Annagher Hill.

The man then said “let me out” and then exited the vehicle. The priest could give no further detail about the man, as he did not recognise him. He said that he did not deliberately try to hide or conceal any evidence, but had just been in a state of shock and confusion after the incident.

Blood was recovered from the car but there was no match to the appellant’s DNA until 2015, when he was arrested.

Grounds of appeal

The central ground of appeal was that the decision of the court to refuse to stay the proceedings as an abuse of process was wrong in law.

The appellant argued that the prosecution was at fault for a delay of over 18 years between the appellant being identified and being charged. It was submitted that this case was truly exceptional, and the delay caused real and identifiable prejudice, such that the appellant could not have a fair trial.

It was argued that the proceedings would be unfair, and should have been stayed because it would offend the court’s sense of justice, undermine public confidence in the criminal justice system, and bring it into disrepute.

It was also argued that Father Rice’s evidence should not have been admitted as it was hearsay.

Consideration

The court noted that where delay has been deliberate, or used by the prosecution to manipulate the process, then it could well be evidence that there is an abuse of process.

However, if it has not, then the appellant would have to show that there had been inordinate or unconscionable delay which has prejudiced the appellant.

In this case, however, the court highlighted that the appellant made himself a fugitive and then fled the jurisdiction to Ireland. He left a false trail by giving the wrong name in hospital and a fake background.

It was not until 2007, when he was stopped for a driving penalty in Northern Ireland, that it was noted that he was wanted.

He claimed that he left Northern Ireland on advice from his family, as he was innocent but had been shot at by security forces.

However, the court found that he had “behaved in the way in which a guilty man trying to evade detection for a serious crime would have done. Had the appellant not absconded he could have been arrested and samples taken by the NI authorities to enable a match to be made to the blood found in the rear of the vehicle”.

He could also have been dealt with at the same time as his accomplice, who was convicted in 1998.

The court also accepted that the prosecution took much later than it should have. There had been some avoidable delays, and the court had no clear explanation to explain the delays.

However, there was no evidence that this delay was deliberate or the result of misconduct or improper behaviour. Meanwhile, the appellant intentionally caused or substantially contributed to the delay by absconding.

Finally, the court considered whether the appellant had been prejudiced. He argued that this included his inability to call prosecution witnesses who had since died, and the general non-availability of Coalisland CCTV images of the scene.

The court rejected this claim, as suitable warnings were given to jurors about the fact that some witnesses were unavailable, and the professional witnesses made working notes of their examinations and the notes were still available.

Conclusion

Ultimately, the court “wholeheartedly” agreed with the trial judge that the appellant had failed to show that he had been prejudiced. The judge considered all of the evidence carefully, and dismissed the appeal against conviction.