Minister for Justice and Equality v Downey

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 01 March 2019
• Neutral Citation: [2019] IEHC 119
• Court: High Court
• Docket Number: [2018 338 EXT]
• Date: 01 March 2019

[2019] IEHC 119

THE HIGH COURT

Donnelly J.

[2018 338 EXT]

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

JOHN DOWNEY

RESPONDENT

Extradition – European Arrest Warrant Act 2003 – Abuse of Process – Applicant seeking an order surrendering the respondent pursuant to a European Arrest Warrant – Whether circumstances existed to prevent the court ordering the surrender of the defendant

Facts: The United Kingdom issued a European Arrest Warrant for the respondent for the purposes of a criminal prosecution in respect of two offences of murder and one offence of aiding and abetting the causing of an explosion likely to endanger life. The alleged offences took place in August 1972. In 2007 the respondent received a “letter of assurance” from the Northern Ireland Office which he argued provided him amnesty from prosecution. The respondent argued that the cumulative effect of a number of factors, including the letter, the delay in prosecution, and the denial of his rights under the Constitution and the ECHR, meant that to surrender him would be oppressive.

Held by Donnelly J that each of the respondent’s objections to his surrender should be rejected. With regard to the “letter of assurance,” Donnelly J stated that under s.39 of the 2003 Act, in order for surrender to be prohibited, the person must be immune from prosecution and punishment in accordance with the law of the issuing state by virtue of an amnesty or pardon. This must therefore have been established by the respondent by reference to U.K. law, and no such evidence was presented to the court. With regard to the respondent’s arguments relating to his right to a fair trial and abuse of process, Donnelly J held, inter alia, that the respondent could raise these arguments in the proceedings in the issuing state.

Donnelly J stated that having considered the delay in the proceedings, the letter of assurance, along with the other factors argued by the respondent, these must be weighed against the extremely high public interest in surrendering the respondent given the serious nature of the alleged offences. An order was made for the respondent’s surrender to the issuing state.

Relief granted.

JUDGMENT of Ms. Justice Donnelly delivered on the 1st day of March, 2019

1 The surrender of the respondent is sought on foot of a European Arrest Warrant (‘EAW’) issued on 31st October, 2018 by a judicial authority of the United Kingdom of Great Britain and Northern Ireland (‘the UK’) for the purpose of conducting a criminal prosecution in respect of three offences. The EAW is based on three national arrest warrants issued on the 31st October, 2018 in respect of two alleged offences of murder and an alleged offence of aiding and abetting the causing of an explosion likely to endanger life. The alleged offences relate to an incident which occurred on the 25th August, 1972 in Northern Ireland. Two members of the Ulster Defence Regiment were killed in a car bomb explosion and a number of army personnel sustained non-life threatening injuries in the explosion.

2 Interlinked with claims as to delay and disproportionate effect on his personal life, the respondent objected to surrender on the ground that it would be an abuse of process to surrender him arising from a letter addressed to him from the Northern Ireland Office (‘the letter of assurance’). The respondent also objected to surrender on the basis that the letter of assurance amounts to an amnesty/pardon. Overall, he submitted that arising from the cumulative factors that arose in this exceptional case, it would be oppressive to surrender him.

3 In order to understand the context of the letter of assurance, it is necessary to give some detail of what is stated in the EAW about the investigation into the offences leading to the prosecution. Further context is provided in the affidavit of the respondent. Having described the explosion and its consequences, the EAW states at part E:-

‘An ammunition technical officer attended the scene and determined that the explosion was caused by a car bomb containing between 100lb – 200lb of an unknown explosive. In a statement he confirmed the bomb was ‘command wire initiated by 100m of single – strand copper wire, blue and brown plastic covered. Attached to the end of the wire was a battery pack consisting of 6 × 4.5v Ever Ready 126 batteries, and one Ever Ready 1 R 376 battery, wiere (sic) in series.’ A scene of crime officer, Sgt. Hugh McCormack, attended the scene and observed that ‘The car bomb had been detonated on a footpath … causing a large crater in the footpath and road …. from the edge of the crater to a hillside nearby ran a length of wire attached to a battery power pack … the power pack consisted of seven Ever Ready batteries held together by black adhesive tape.’ Sgt. McCormack is deceased and a hearsay application will be made to adduce his evidence. The battery power pack found at the detonating point was delivered on the 31st August 1972 to Sgt. Gamble, fingerprint department, RUC. Fingerprints of John Anthony Downey (DOB 19/01/1952), Cabra, Cootehill, Co. Cavan were obtained by D/Sgt. Aidan Murray, AGS, on the 10th December 1979. The fingerprints were forwarded to the RUC in 1980 for intelligence purposes. Sgt. Gamble confirmed a positive comparison of a finger imprint found on the black insulating tape, which he marked as ‘ LA 45/72 L’ with the left forefinger impression recorded as taken from John Anthony Downey by D/Sgt. Murray. He confirmed they agreed in sequence of ridge detail. Sgt. Gamble is deceased and a hearsay application will be made to adduce his evidence and related documents. Imprint ‘ LA 45/72 L’ has since degraded however photographs taken of the imprint at the time have been confirmed by a fingerprint expert as authentic and of good quality. The expert confirmed a positive comparison of these photographs with a fingerprint imprint taken by the Metropolitan Police (Met) following Mr. Downey's arrest on 19th May 2013 at Gatwick Airport on suspicion of his involvement in the Hyde Park bombing in 1982. The subsequent prosecution of Mr. Downey in respect of the Hyde Park bombing was stayed as an abuse of process. The prosecution will seek to adduce the Met fingerprints and, if they are held to have been unlawfully obtained, will rely on the authority of R. v. McKee & Elliot [2013] UKSC 32. The prosecution will seek to adduce evidence of bad character, namely: - Evidence pertaining to the conviction of Mr. Downey in 1974 for membership of the IRA and evidence pertaining to the recovery of Mr. Downey's fingerprints and palm prints from locations related to two other terrorist incidents. The DPP NI decided on 27 June 2018 to prosecute Mr. Downey for two offences of murder and one of aiding and abetting an explosion. Mr. Downey resides in ROI and has not been served with papers.’

4 The reference to the Hyde Park bombing is a reference to a bombing that was carried out in Hyde Park, London, on the morning of Tuesday 20th July, 1982. In that case, a car bomb was detonated as ‘the Guard’ (consisting of sixteen members of the Blues and Royals Regiment of the Household Cavalry and their horses accompanied by two mounted police officers) was passing en route from Knightsbridge Barracks to Horse Guards Parade for the Changing of the Guard. Four members of the Guard were murdered in the explosion and a total of 31 other people were injured. The respondent appeared before the Central Criminal Court of England and Wales in January, 2014. On the 21st February, 2014, following legal submissions, Sweeney J. stayed the prosecution on the ground that it would be an abuse of process to try him because of the letter of assurance he had received on the 20th July, 2007 from the Northern Ireland Office.

5 The background to the letter of assurance is set out in the affidavit of the respondent. He says the letter was given to him by Mr. Gerry Kelly to whom it was addressed. According to the respondent:

‘The letter is one of such letters that were sent to former Republican activists over that time as part of the ongoing Peace Process and in contemplation of the Good Friday Agreement.’

6 The letter is headed ‘Northern Ireland Office, Political Directorate – Rights and International Relations Division’ and it is signed by Mark Sweeney, Head of Division. On the left hand side, it said ‘Mr. John Anthony Downey via Gerry Kelly’. It is dated the 20th July, 2007 and reads as follows: -

‘The Secretary of State for Northern Ireland has been informed by the Attorney General that on the basis of the information currently available, there is no outstanding direction for prosecution in Northern Ireland, there are no warrants in existence, nor are you wanted in Northern Ireland for arrest, questioning or charge by the police. The Police Service of Northern Ireland are not aware of any interest in you from any other police force in the United Kingdom. If any other outstanding offence or offences come to light, or if any request for extradition were to be received, these would have to be dealt with in the usual way’.

7 Prior to determining the contested issues in this case, the High Court, as executing judicial authority, must be satisfied that the formal proofs required under the European Arrest Warrant Act 2003 as amended (‘the Act of 2003’) have been satisfied.

Identity

8 I am satisfied on the basis of the information contained in the European Arrest Warrant and the affidavit of the respondent, that the respondent who appears before me is the person in respect of whom the EAW has been issued.

Endorsement

9 I am satisfied that the EAW has been endorsed in accordance with s. 13 of the Act of 2003 for execution in this jurisdiction.

S. 21A, 22, 23 and 24 of the Act of 2003

10 Having scrutinised the documentation before me, I am satisfied that I am not required to refuse the respondent's surrender under...