Letters sent to ‘on-the-run’ paramilitaries raise questions of ‘exceptional public importance’ for Irish courts

Ms Justice
Aileen Donnelly

John Downey, 67, was arrested last November at his home address in Co Donegal on foot of a European Arrest Warrant issued by UK authorities in relation to the 1972 Enniskillen bombing.

He is wanted for the murder of two British Army infantrymen, Lance Corporal Alfred Johnston and Private James Eames, who were killed when a device exploded in a vehicle they were checking in Enniskillen on 25 August 1972.

Mr Downey’s trial in relation to the 1982 London Hyde Park bombing, in which four soldiers and seven horses were killed, collapsed in February 2014 over a letter sent to him and other alleged republican paramilitaries. 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 “on-the-run” scheme and letters, which only fully emerged following the collapse of Mr Downey’s 2014 Hyde Park trial, triggered a major political controversy and led to an inquiry.

The High Court ordered Mr Downey’s extradition in relation to the 1972 Enniskillen bombing last week. However, he was granted leave to appeal the decision yesterday.

In seeking an appeal, Mr Downey’s lawyers asked the High Court whether it would be an abuse of process to extradite their client in circumstances where the assurance may have been given to him so that UK authorities could gather evidence against him in the future.

Counsel for Mr Downey, Garnet Orange SC, said his client had had a “legitimate expectation” that no proceedings would be issued against him and he had travelled back and forth between the UK and Ireland “to his detriment” for a number of years.

Before Mr Downey’s trial for the Hyde Park bombing collapsed, the trial judge ruled that his arrest at Gatwick Airport, as he transited the UK on the way to a holiday, represented an abuse of process.

Ms Justice Aileen Donnelly, the High Court judge in charge of extradition, said the question gave rise to a point of law of exceptional public importance and it was desirable in the public interest that the question be determined by a higher court. She said the issue may arise in future cases.

She asked whether it would be an abuse of process to surrender a person in circumstances where an assurance given by authorities in the issuing state, “which lead a person to act to his detriment, thereby facilitating the gathering of evidence, when it has not been established that the giving of the assurance or the continued maintenance of the assurance was deliberately or intentionally given or maintained for the purpose of facilitating the requested person to act in his detriment”.

The case was put back to Friday for finalisation of the proposed question. Mr Downey is not required to attend on Friday. He was remanded on continuing bail and is required to appear before the Court of Appeal for the hearing.

Mr Downey is the first so-called “on-the-run” republican to be charged with offences since the scheme was found by a House of Commons committee to have “distorted the process of justice”.

Upon his arrest for the 1972 bombing last November, Mr Downey told detectives he believed “it was the DUP and not the DPP” who decided to prosecute him.

He had opposed his 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”.

Mr Downey’s barrister, Mr Orange, said his client had recently turned 67 and it was “safe to say” he was not in good health. He faced the prospect of a lengthy trial process and there was no guarantee he would be admitted to bail.

Mr Orange said there was doubt over whether the evidence mentioned in the European Arrest Warrant “actually exists any more”.

Mr Downey’s fingerprints are alleged to have been found on adhesive tape recovered from a battery pack used in the Enniskillen bombing, the High Court heard.

However, Mr Orange said the adhesive tape was subsequently lost for a number of years and it was unclear whether it actually still existed. He said Northern Ireland prosecutors intended to rely on statements from two prosecution witnesses in relation to the tape and its analysis, who were now deceased.

Mr Orange said Mr Downey was not a “classic on-the-run” as he had not “escaped from justice”.

He said a direction was given for no prosecution in 1985, after the adhesive tape went missing, unless further evidence came to light. Mr Downey subsequently received his letter of assurance.

Mr Orange said the High Court in London found the UK authorities had committed a “catastrophic system failure”, involving both the PSNI and the Attorney General’s Office. It now appeared as though the very people who contributed to this catastrophic failure were the very people now seeking Mr Downey’s extradition, he submitted.

Ruaidhrí Giblin, Ireland International News Agency Ltd.