An alleged IRA bomber given a so-called "comfort letter" by the British government has lost his latest challenge aimed at preventing his extradition to Northern Ireland over the Enniskillen bombing.
Northern Irish authorities are seeking to extradite John Downey (67) to face prosecution for the murder of two British soldiers as well as aiding and abetting the causing of an explosion on August 25th, 1972.
Ulster Defence Regiment soldiers Lance Corporal Alfred Johnston and Private James Eames were killed when a device exploded in a vehicle they were checking on the Irvinestown Road, Cherrymount, in Enniskillen, Co Fermanagh.
Mr Downey was arrested last November at his home address in Ards, Creeslough, Co Donegal on foot of a European Arrest Warrant.
He told detectives he believed “it was the DUP and not the DPP” who decided to prosecute him.
The High Court in Dublin ordered Mr Downey's extradition in March, and the Court of Appeal upheld that decision on Wednesday. Mr Downey's lawyers indicated that an appeal to the Supreme Court will be made, while their client remains on bail.
Giving judgment in the Court of Appeal, Mr Justice Michael Peart said the evidence against Mr Downey includes a fingerprint alleged to have been found on black insulating tape used in the 1972 bombing.
The imprint has since degraded but photographs of the imprint are said to make a positive comparison with fingerprint samples taken from Mr Downey, following his arrest at Gatwick Airport, while en route to a family holiday, in 2013.
Mr Justice Peart said the subsequent prosecution of Mr Downey for the 1982 Hyde Park bombing, in which four soldiers and seven horses were killed, collapsed in February 2014 on the basis that it amounted to an abuse of process.
Crucial to the finding of an abuse of process in London, was a “letter of comfort” dated July 20th, 2007, which was provided not only to Mr Downey but other persons known as “on the runs” or “OTRs”, Mr Justice Peart said.
‘Comfort letter’
The so-called "comfort letters", issued by the government of Labour prime minister Tony Blair, told republican paramilitaries they were not wanted for prosecution of crimes committed during the Troubles.
The “on-the-run” scheme and letters, which fully emerged following the collapse of Mr Downey’s trial in 2014, triggered a major political controversy and lead to an inquiry.
Mr Justice Peart said the letter, and the finding of an abuse of process in London, was “at the heart” of Mr Downey’s contention that he shouldn’t be extradited in relation to the 1972 bombing.
However, for the High Court to refuse surrender on the basis of an abuse of process, Mr Justice Peart said the abuse must exist in the processes of the High Court in Ireland, rather than in the prosecution of offences of the requesting state.
He noted that Mr Downey was already successful in having his prosecution in respect of the Hyde Park bombing “stayed” on the grounds of abuse of process.
That itself was clear evidence that in so far as Mr Downey wishes to challenge his prosecution for the 1972 offence on the basis of the comfort letter and his subsequent arrest at Gatwick Airport, it was a matter to be determined in the requesting state, “and not as part of the application here for his surrender”.
Mr Justice Peart said the High Court was correct in its decision. President of the Court of Appeal Mr Justice George Birmingham and Mr Justice John Edwards said they agreed with their colleague's decision.
Counsel for Mr Downey, Garnet Orange SC, said an appeal would be lodged to the Supreme Court.
The Court of Appeal put a stay on the order for surrender, pending the lodgement of a Supreme Court appeal, until July 12th. Thereafter, the stay will continue until the Supreme Court decides to hear Mr Downey’s case or not.