Prosecutors in the case of convicted terrorist Damien Joseph McLaughlin and his alleged involvement in the murder of prison officer David Black have been given until Thursday morning to decide whether to challenge the decision of trial Judge Mr Justice Colton to throw out their case.
Today, Mr Justice Colton ruled that it would be both unsafe and unreliable to convict the 41-year-old Co Tyrone man who has always denied any involvement in the shooting of 54-year-old father-of-two on the M1 motorway on November 1, 2012.
The prosecution case against McLaughlin from Kilmascally Road near Ardboe rested “solely” on the evidence of a Co Leitrim man Stephen Brady, interviewed by specialist Garda Officers from Dublin in the wake of the “horrific shooting”.
During the interviews which the judge described as “oppressive, aggressive, hectoring and bullying”, Mr Brady allegedly identified McLaughlin, as the man who moved the Toyota Camry car later used by the gunmen to carry out their ambush.
However today Mr Justice Colton said that having read and viewed the video-taped interviews, including evidence of the three Gardai who conducted them, “he could not believe that it was contemplated that the interviews with Brady would be relied upon in any criminal prosecution” .
And earlier he commented that “the court was not impressed with the conduct and manner of these interviews”.
He repeatedly and continually complained of their aggressive nature, and extensively quoted from the interviews, using the same profanities as the Gardai.
Mr Justice Colton said the court was “not naive” about the nature of such interviews, which are “not meant to be friendly conversations over a cup of tea”, and said that the use of “profane and oppressive language, however unnecessary or unjustified, does not in itself preclude” them as evidence.
However, the Belfast Crown Court Judge said that even one of the Garda detectives involved “was correct when he accepted he did not ever envisage that the contents of the interviews would be scrutinised in a court of law and that he understood why a court would have concerns about the contents of the interviews”.
Mr Justice Colton added that he had formed the impression “the true purpose of the interviews was to seek information from Brady other than obtain evidence for the purposes of a criminal prosecution”.
In conclusion the learned judge outlined five main points as to why Brady’s interview statements could no be adduced as evidence and why the prosecution case, even taken at its height, should fail.
The judge said “he was not satisfied it would be in the interests of justice” to admit Brady’s hearsay evidence due to the “particular circumstances in which it was obtained”.
Mr Justice Colton even went further in declaring not only should it not be admitted but also “that a trial depending on it should not be allowed to proceed because any conviction based on that evidence would be unsafe”.
He added that given the “high and obvious risk of unreliability” of the statements, in his view it would be “unfair and unsafe for the defendant to be convicted on the basis of such evidence in circumstances where he is not in a position to challenge of test the accuser”.
In conclusion Mr Justice Colton said that the evidence provided in Brady’s statements was “so unconvincing that considering its importance to the case against the defendant I would acquit the defendant on the grounds that his conviction for the offences would be unsafe”.
Brady’s interviews could not have been used in a criminal prosecution against himself, said the judge, who added “it seems to me inconceivable that they would be admitted against the defendant McLaughlin”.
Earlier the judge said Brady’s was “the sole and decisive evidence in the case... and that there is no other evidence” purporting to link the defendant to the Toyota vehicle used in the murder of Mr Black.
The trial Judge said that the prosecution had also failed to take all possible steps to ensure Brady’s attendance in court.
They could have applied to the High Court in Dublin for him to give evidence there, or arranged for a live link to enable him to give evidence outside the Republic.
Mr Justice Colton said given the circumstances of the alleged offences, it would also have been open to the prosecution to have taken their case to the courts in the Republic “and this would not have caused any undue cost or delay”.
At the end of the ruling, which took almost three hours to deliver, prosecuting QC said given its complexity and length, he would ask for time to consider it, and deciding whether to apply to the court directly or to the Court of Appeal, to challenge its findings.
It was agreed that the parties would return to court on Thursday morning.