The High Court has ordered the extradition to Northern Ireland of a man who is wanted in relation to the murder of two Ulster Defence Regiment (UDR) soldiers 47 years ago.
Northern Irish authorities had sought the surrender of John Downey (67) to face prosecution for the murders as well as aiding and abetting the causing of an explosion in Enniskillen on August 25th, 1972.
Lance Corporal Alfred Johnston and Private James Eames were killed when a device exploded in a vehicle they were checking on the Irvinestown Road in the Co Fermanagh town.
Ms Justice Aileen Donnelly said Mr Downey had objected to the extradition on a number of grounds including delay, a letter of assurance which he believed amounted to a pardon or amnesty and his belief that it would be “oppressive to surrender him”. However, the judge said she rejected each of the objections.
She also said it was “clear that the public interest in his surrender is extremely high in light of the offences” and that this remains the case despite the delay in time.
Tony McGillicuddy BL, for Mr Downey, told the court he will make an application for a certificate for leave to appeal to the Court of Appeal next Wednesday.
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.
He was previously tried in relation to the 1982 London Hyde Park bombing collapsed in February 2014 over a letter sent to him, and other alleged republican paramilitaries, in July 2007. Four soldiers and seven horses were killed and 31 people were injured in the incident.
‘Comfort letters’
The “comfort letters” issued by Tony Blair’s government told the republicans they were not wanted for prosecution of crimes committed during the Troubles.
The High Court previously heard that Mr Downey’s fingerprints were allegedly found on adhesive tape recovered from a battery pack used in the Enniskillen bombing. However, Garnet Orange SC, for Mr Downey, told the court the adhesive tape was subsequently lost for years and it was unclear whether it still existed.
Ms Justice Donnelly said that for an extradition to be refused on the basis of an amnesty or pardon, the person has to place “cogent evidence before the court that such an amnesty or pardon existed”.
She said Mr Downey “has not produced any evidence that the letter of assurance provides an amnesty or pardon in the issuing state”.
"Whether or not it is an amnesty is something that can only be established by reference to the laws of the United Kingdom, " she said.
The judge noted that Mr Downey had submitted that the High Court should adjourn the extradition application until after Brexit but she said he did not place any evidence before her to show any of his rights would be deprived should the UK leave the EU.
Denial
In response to a submission from Mr Downey that the use evidence of finger and palm prints from locations “related to two other terrorist incidents” would be a denial of his rights, Ms Justice Donnelly said it has not been established that there is an “egregious breach” in a justice system to allow such evidence to be admitted.
Mr Orange had submitted it was “uncontradicted” that there were “credible attempts” to “fabricate” an image of a suspect for the Hyde Park bombing. The image of the suspect was said to have been created using independent eye-witness identification.
However, he said notes disclosed during the trial for the Hyde Park bombing showed that the photo fit image was actually generated from a picture of Mr Downey taken from his house in the course of a raid by gardaíprior to 1982 and that the notes indicated an artist was “directed” to use the picture to create a photo fit image.
He said the background to Mr Downey’s identification in relation to the Hyde Park bombing was a “supposed courtesy call” by a now retired garda officer to New Scotland Yard.
The now retired garda officer would be “well known”, Mr Orange said, and had “recently came back into focus arising out of concerns over the Kerry Babies” case. He said the “well known” retired garda “may well have had an involvement in the obtaining of the photo in the first place”.
However, Ms Justice Donnelly said she rejected the claim that his rights were violated by the unlawful obtaining of photographic evidence.