An alleged IRA bomber given a so-called “comfort letter” by the Tony Blair Government, must wait to hear the outcome of an appeal against his proposed extradition north for the 1972 Enniskillen bombing.
Northern Irish authorities are seeking to extradite John Downey (67) to face prosecution for the murder of two British Army Infantrymen as well as aiding and abetting the causing of an explosion on August 25, 1972. Ulster Defence Regiment (UDR) 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.
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, despite objections on grounds of delay and a letter of assurance he believes amounts to a pardon or amnesty.
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 the letter, sent to him and other alleged republican paramilitaries.
The so-called “comfort letters", issued by the Tony Blair government, 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 2014 trial in relation to the 1982 Hyde Park bombing, triggered a major political controversy and lead to an inquiry.
Mr Downey’s lawyers told the Court of Appeal today that the letters were originally given to around 250 so-called “on-the-runs”. After that, consideration was given to other people, including Mr Downey, who asked for a letter.
Garnet Orange SC, for Mr Downey, said the authorities spent five years conducting research before the letter of assurance was given to Mr Downey. It was effectively a decision not to prosecute, he submitted, so Mr Downey could go about his lawful business. All of this came about as a result of political discussions “at the highest level”, he added.
Mr Orange said his client was “trying to live out the spirit of the Good Friday Agreement”, travelling to Northern Ireland for constructive purposes, building bridges and so forth.
He said his client 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.
The letter lead Mr Downey to act against his own interests by travelling through the UK, Mr Orange submitted. He was arrested in relation to the Hyde Park bombing while transiting through London’s Gatwick Airport, on the way to a holiday, the court heard, an arrest deemed an “abuse of process” by the Hyde Park trial judge.
Counsel for the Attorney General, Remy Farrell SC, said the purpose of the letter was to state there were no known proceedings, warrants or active investigations against Mr Downey at that time. It did not amount to a statement that Mr Downey will not be prosecuted, he added.
“We now know” the letter was factually “wrong”, Mr Farrell said, and it was unrealistic for Mr Downey to rely on a letter to say he wasn’t wanted for prosecution, when he was wanted for prosecution.
Mr Farrell said the contention that Mr Downey was “lulled into a false sense of security” was an argument on admissibility of evidence, to be made in the northern Irish trial court. He said Mr Downey’s arguments were for the Belfast courts not the Irish courts.
President of the Court of Appeal Mr Justice George Birmingham, who sat with Mr Justice Michael Peart and Mr Justice John Edwards, said the court would reserve its judgment.