John Downey to be extradited in relation to 1972 Enniskillen murder

A man whose trial over the 1982 Hyde Park bombing collapsed is to be extradited to Northern Ireland to face charges in relation to the murder of two UDR soldiers in Enniskillen in 1972, the High Court has ruled.

Northern Irish authorities had sought the surrender of 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.

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.

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, Ms Justice Aileen Donnelly said she rejected each of Mr Downey's objections.

She also said it’s “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.

Mr Downey’s barrister Tony McGillicuddy BL 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 in November last year 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.

Mr Downey’s trial in relation to the 1982 London Hyde Park bombing, in which four soldiers and seven horses were killed and 31 other people were injured, collapsed in February 2014 over a letter sent to him, and other alleged republican paramilitaries, in July 2007.

The "comfort letters", issued by the Tony Blair government, told the republicans they were not wanted for prosecution of crimes committed during the troubles.

At a previous hearing, the High Court heard Mr Downey’s fingerprints are alleged to have been 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 a number of years and it was unclear whether it actually still existed.

He said the northern Irish prosecution intended to rely on statements from two critical prosecution witnesses in relation to the tape and its analysis, who were now deceased, and that it would be unfair to extradite Mr Downey in all the circumstances.

Today, Ms Justice Donnelly, in a 43-page written judgement, said 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”.

Ms Justice Donnelly said: “Whether or not it is an amnesty is something that can only be established by reference to the laws of the United Kingdom.”

She also said it’s a “matter of fact evident from the judgement” in the trial which collapsed in February 2014, the presiding judge Mr Justice Sweeney “did not hold that the letter was an amnesty in respect of offences predating the letter”.

In her judgement, Ms Justice Donnelly also outlined that Mr Downey had submitted that the High Court should adjourn the extradition application until after Brexit but she said Mr Downey did not place any evidence before her to show any of his rights under the EU Charter of Fundamental Rights would be deprived in the event of Brexit.

Ms Justice Donnelly said Mr Downey also argued that to extradite him would be a “flagrant denial of justice”.

She said he objected on the basis of a statement in the European Arrest Warrant and that “despite witnesses being dead, fingerprint evidence would be admissible as hearsay and that ‘bad character evidence’ would be introduced against him”.

However, she said, Mr Downey didn’t refer to any case law from the ECHR or other international tribunal to the effect that relying on hearsay evidence or “bad character evidence” would amount to a breach of fair trial rights.

In response to a submission from Mr Downey that a proposal to 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 hasn’t been established that there is an “egregious breach” in a justice system to allow such evidence to be admitted.

Mr Downey also ruled that any issue as to whether fingerprints are unlawfully obtained and/or unlawfully retained in the issuing state “is a matter for proceedings in the issuing state”.

During the extradition hearing, 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 gardaí prior 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 said the “well known” retired garda “may well have had an involvement in the obtaining of the photo in the first place”.

Counsel had said the gardaí may well have questions to answer in relation to their historical involvement in the case.

'High public interest'

However, Ms Justice Donnelly said she rejected the claim that his rights were violated by the unlawful obtaining of photographic evidence.

She said he has not established that such evidence (whether taken lawfully or unlawfully) has any relevance to the trial for the 1972 offences.

Ms Justice Donnelly said: "In all the circumstances, the court rejects the point of objection relating to evidence procured in violation of his constitutional rights."

In relation to Mr Downey’s objection due to delay, Ms Justice Donnelly found: “Even accepting that there has been culpable delay since 1998 but especially since 2013, this court concludes that for such serious offences of violence, the high public interest in surrender is not significantly diminished”.

She also found that his medical ailments - he had a pacemaker inserted in September 2018, was diagnosed with sleep apnoea in 2016, and suffers from gastric conditions and a separate bowel condition - “are not of themselves of such severity that would make a trial or indeed imprisonment particularly onerous”.