The Court of Appeal has dismissed John Anthony Downey’s appeal against an order surrendering him to Northern Ireland to face prosecution over two alleged murders and an alleged explosives offence linked to a 1972 car bombing.
The appeal concerned a European arrest warrant seeking his surrender for prosecution over the deaths of two members of the Ulster Defence Regiment in an explosion on 25 August 1972. The High Court ordered his surrender on 1 March 2019 under section 16(1) of the European Arrest Warrant Act 2003. It later certified a point of exceptional public importance for appeal.
Downey argued that surrender would itself amount to an abuse of process because he had relied on a 2007 “letter of comfort” stating that, on the information then available, there was no outstanding direction for prosecution or warrant in Northern Ireland, and that he was not wanted there. The High Court had rejected that argument.
The letter had also featured in a separate prosecution in England over the 1982 Hyde Park bombing. That prosecution was stayed as an abuse of process. The English court found that the assurance in the letter was “wholly wrong” and that Downey had been misled. The Court of Appeal noted that fingerprints taken from Downey after his 2013 arrest at Gatwick Airport were said to match photographs of a fingerprint found on tape associated with the battery pack used in the 1972 explosion. These matters form part of the warrant’s account of the proposed prosecution; they are not findings of guilt in the present appeal.
The appeal court distinguished an abuse of the Irish surrender process from a possible abuse of the criminal proceedings that might follow surrender. It said the requesting jurisdiction was the appropriate place to decide whether a trial should be stayed on abuse-of-process grounds. The court noted there had been no suggestion that Downey could not seek a fair hearing of such an application there.
The court answered the certified question in the negative and dismissed the appeal. The High Court surrender order therefore remained in place. The Court of Appeal did not decide whether a prosecution over the 1972 offences would itself constitute an abuse of process, or whether Downey was guilty of any offence.