Judge rejects legal bid to have core element of Crown case in long-running terrorist trial thrown out
A SENIOR judge has rejected a legal bid to have a core element of the Crown case in a long-running terrorist trial thrown out.
Lurgan man Colin Duffy (57), along with 55-year old Henry Fitzsimons and Alec McCrory (60), have been charged with offences including IRA membership and directing a terrorist organisation. The charges arise from covert recordings made in the wake of a gun attack on a police patrol in north Belfast in December 2013.
Duffy, whose address was given as Maghaberry, Fitzsimons from Dunmore Mews in Belfast and McCrory from Sliabh Dubh View in Belfast deny all the offences and a trial commenced at in the city's Crown Court in March 2019.
Due to reasons including the pandemic, adjournments and legal applications, the trial has not sat for over a year. In his ruling on the most recent legal application, Mr Justice O'Hara rejected a bid to have most of the evidence thrown out. He did, however, excluded a portion where police attributed words they claim were spoken by each of the three in an audio recording onto a transcript which was later considered by experts linked to the trial.
During the non-jury hearing, audio recordings and footage was played of three men walking in the Demesne Lane area of Lurgan the day after the gun attack. The covert recordings were captured on devices planted by the security services in the the park and it's the Crown's case that the trio are Duffy, Fitzsimons and McCrory who discuss the shooting in Belfast.
The recordings are critical to the prosecution and a defence application was made on the grounds that it had to be proven that the recordings were authentic - and if this was not proved, the Crown case could therefore not be proven.
Mr Justice O'Hara said: "I have considered all of the evidence given during the trial to date, along with the written and oral submissions."
He added that having heard a vast majority of the Crown case during trial "I am satisfied that I can form a judgement at this stage in the proceedings on what is admissible in terms of authenticity and fairness".
Mr Justice O'Hara said he had considered four issues including the authenticity of the audio recordings made in the Lurgan park.
Whilst he expressed "misgivings about the way in which the prosecution evidence was given" and branded some witnesses as "vague and unforthcoming", the judge said the authenticity of the audio recordings "cannot reasonably or sensibly be doubted."
He did, however, exclude an element of the evidence which he branded as inadmissible.
Mr Justice O'Hara said that when police were provided with the audio from Lurgan, they made a transcript of words which were spoken and attributed these to Duffy, McCrory and Fitzsimons.
It was this attribution of words undertaken by the police and included in the transcript considered by experts that the defence asked to be excluded on the grounds of unfairness.
Ruling in the defence's favour, Mr Justice O'Hara said the attribution of words was unfair, excluded this element from the evidence and said it was "inappropriate to provide experts with a transcript with attributions."
At the conclusion of the ruling, the judge said he wanted to arrange a review "of the future running of the case" and said this would take place on October 14.