John Downey has been granted leave to appeal against the decision to extradite him to Northern Ireland.
The 67-year-old, whose trial for the IRA’s Hyde Park bombing collapsed in controversy five years ago, is wanted by prosecutors in the North over the murders of two Ulster Defence Regiment soldiers in Co Fermanagh more than 46 years ago.
Mr Downey was arrested at his home in Creeslough, Co Donegal last October under a European arrest warrant after prosecutors determined that they had sufficient evidence to charge him with the murders of Lance Corporal Alfred Johnston (32) and Private James Eames (33). The soldiers died after a car bomb attack in Enniskillen in August 1972.
Ms Justice Aileen Donnelly said that she granted the appeal to test whether it is an abuse of process to return Mr Downey to Northern Ireland.
In 2013, Mr Downey was charged with murdering four Royal Household Cavalrymen in a bomb in London’s Hyde Park in 1982.
He was tried at the Old Bailey in 2014 but the case collapsed after it was revealed he had received a written assurance from former British prime minister Tony Blair’s government that he was not actively wanted by the authorities.
The so-called ‘letter of comfort’ was allegedly issued under the terms of the controversial On The Runs (OTRs) scheme.
The High Court previously heard claims that Mr Downey’s fingerprints were found on adhesive tape on a battery pack used in the Enniskillen attack. The court was told the tape was lost for some two years. It was also alleged police in the UK attempted to fabricate photo-fit evidence by using a picture taken from Mr Downey’s house.
‘Unlawfully’
The court was told members of An Garda Síochána “unlawfully” removed pictures of Downey from his home and passed them to the authorities in the UK. These pictures, Mr Orange said, were used to create an image of Mr Downey as a suspect in the Hyde Park bombing.
Speaking in the court on Wednesday, Mr Orange said that if a member of the public were made aware of the current court matters they would have “grave concerns” as to whether public interest has been served by granting Mr Downey’s extradition.
“The only bodies who stand to benefit from the catastrophic failures are the very bodies who caused the catastrophic failures.”
Ms Justice Donnelly said the question gave rise to a point of law of exceptional public importance and it was desirable in the public interest that the question be determined by a higher court. She said the issue may arise in future cases.
She asked whether it would be an abuse of process to surrender a person in circumstances where an assurance given by authorities in the issuing state, “which lead a person to act to his detriment, thereby facilitating the gathering of evidence, when it has not been established that the giving of the assurance or the continued maintenance of the assurance was deliberately or intentionally given or maintained for the purpose of facilitating the requested person to act in his detriment”.
The case was put back to Friday for finalisation of the proposed question. Mr Downey is not required to attend court that and has been remanded on continuing bail. - PA