The High Court has ordered John Downey’s surrender to Northern Ireland for prosecution over two alleged murders and an alleged explosives offence connected to a car bomb in 1972. The court rejected all his objections to surrender, including his claim that doing so would be an abuse of process.
The European Arrest Warrant, issued on 31 October 2018, concerns an explosion on 25 August 1972 that killed two members of the Ulster Defence Regiment and injured army personnel. The judgment does not determine whether Mr Downey committed the offences. It addresses whether he should be surrendered to face prosecution.
Mr Downey argued that a letter sent to him by the Northern Ireland Office in 2007 assured him that he was not wanted in Northern Ireland. He said the letter, delay in bringing the case and the impact on his health and family life made surrender oppressive. He also argued that the letter amounted to an amnesty and that evidence, including fingerprints, raised fair-trial and constitutional concerns.
The court found no evidence that the letter created an amnesty under UK law. It also found no established breach of Mr Downey’s constitutional rights in the taking, retention or transfer of fingerprints. The judgment read the warrant as stating that fingerprints taken by An Garda Síochána in 1979 would not be used at trial; the prosecution intended to rely on fingerprints taken by London police in 2013. Questions about evidence admissibility and alleged entrapment were matters for proceedings in the issuing jurisdiction, the court said.
The judge accepted that there had been identifiable delay, and for the Article 8 assessment assumed that much of it, particularly since 1998 and 2013, was culpable. She also found that Mr Downey had been misled by the assurance that he would not be arrested for a pre-1998 offence while travelling through Britain unless new evidence emerged. The judgment described the UK authorities’ failures around the letter as “catastrophic”, but found no evidence that they deliberately misled him or acted in bad faith.
Weighing those matters against the gravity of the alleged offences and the public interest in prosecution, the court held that the cumulative circumstances did not make surrender an abuse of process. It said issues concerning the letter and any abuse-of-process claim could be raised in Northern Ireland. The court rejected all points of objection and ordered Mr Downey’s surrender to an authorised representative of the issuing state. The order was for surrender to face prosecution, not a finding of guilt.