A high-profile former garda has been accused in the High Court of helping UK police to "fabricate" evidence against alleged IRA bomber John Downey.
The ex-garda is alleged to have been involved in the transfer of a photo of Mr Downey to the UK police who then used it as the basis for a photofit of him.
The photo was taken from the accused’s house in the 1980s during a Garda raid, the defence says.
Mr Downey’s lawyers say the sketch was used to prosecute him in London for the 1982 Hyde Park bombing and that UK police falsely claimed it was based on a witness who had spotted him at the scene.
They alleged the detective's role in the alleged fabrication was claiming that he had in fact identified the suspect from the photofit when he spotted it during a courtesy visit to New Scotland Yard in the 1980s.
The accusations emerged during an extradition hearing in Dublin on Monday. Downey (67) is fighting State efforts to extradite him for the 1972 bombing of an Ulster Defence Regiment patrol in Enniskillen which left two soldiers dead.
Mr Downey's barrister Garnet Orange SC told Mr Justice Aileen Donnelly that much of the current case against him relies on fingerprint evidence collected by gardaí during the troubles which was stored and transmitted to the UK "with no legal basis."
In support of this, counsel said gardaí were involved in UK attempts to fabricate evidence against Mr Downey as part of the Hyde Park bombing prosecution.
Mr Orange said the UK authorities “are having a second bite of the same cherry” after the failure of that prosecution.
‘Letter of comfort’
Mr Downey’s 2014 trial for the Hyde Park bombings, which killed 11 soldiers , collapsed when it emerged he had received a so-called “letter of comfort” from the UK Government stating he was not wanted in connection with any offences committed during the Troubles.
As part of the disclosure in that case, Mr Downey received a photograph he says was taken from his home during a Garda raid in the early 1980s. There were also accompanying instructions for a UK police sketch artist to use the photo as the basis for a photofit sketch of Mr Downey, he says.
The UK police had said the photofit was based on descriptions from a witness at the scene of the Hyde Park bombings who has since died. Mr Downey argues this witness never existed.
One of the former gardaí involved in the alleged “fabrication” is a well-known former garda, the court heard. He was not named but counsel said he has recently “come back into public focus” for his role in the Kerry Babies cases.
Counsel said the case has “a history of questionable involvement between gardaí and the UK police.”
Mr Orange also argued his client was the victim of entrapment when he had his fingerprints taken in a London airport in 2013 while he was going on a family holiday.
Family holiday
He said Mr Downey had been travelling to the UK and internationally for years thinking he wouldn’t be arrested or stopped because of the letter he received from the UK Government.
Counsel also argued there has been an unfair delay in prosecuting the Enniskillen attack. Several key police witnesses have since died and are not available to be cross-examined by the defence, he said.
He further argued that no decision should be taken until after Brexit on March 29th when the impacts of the UK leaving the EU will be more apparent.
Counsel for the State, Remy Farrell SC said most of the points raised, including allegations of fabricated evidence, are matters for any future trial in the UK.
He said the defence can’t simply “point to Brexit” as a reason to delay extradition. It must state specifically which of Mr Downey’s rights might be impinged by the issue.
Ms Justice Donnelly reserved her ruling until March 1st.
