John Downey should not be sent to Belfast to face a trial which is “doomed to failure”, a defence barrister has argued at the appeal court in Dublin.
The 67-year-old, whose trial for the IRA’s Hyde Park bombing collapsed in controversy five years ago, is wanted by prosecutors in Northern Ireland over the murders of two Ulster Defence Regiment soldiers in 1972.
In March Mr Downey was granted leave to appeal against a decision to extradite him.
Ms Justice Aileen Donnelly said then that she granted the appeal to test whether it is an abuse of process to return him to Northern Ireland.
Presenting his clients’ case to the President of Ireland’s Court of Appeal George Birmingham sitting with Mr Justice Peart and Mr Justice Edwards, Mr Downey’s barrister Garnet Orange SC argued on Monday that his client should not be sent to Belfast to face a trial which he argued was “doomed to failure”.
“I think the circumstances in this case are probably unique, I don’t think that there has been anything similar in the past, I think it is highly unlikely that there will be be anything like it in the future,” he told the court.
“It’s not just the individual set of circumstances, each particular thing such like the letter of assurance that is relied on by Mr Downey or the fact that it was granted in the context of the Good Friday Agreement.
“It is also the fact that in the present case there is an enormous delay between 1972 and 2018 before any proceedings were brought.
“There is also the issue of death of relevant witnesses arising from the passage of time, there appears to be an issue with the destruction of important evidence.”
He urged the court to consider the “multiplicity of factors” when considering the appeal.
“He shouldn’t have to go there to answer a case which is doomed to failure,” Mr Orange added.
Responding, Remy Farrell SC, for the Minister of Justice and Equality, said what the court had heard was “no more than an inadmissibility argument wrapped up in a shroud of abuse of process”.
Mr Farrell also described the letter of assurance as simply stating the individual in question was not the subject of any proceedings or warrants, and not that they will not be prosecuted.
He said there is a degree of “unreality” to the idea now that the letters could be relied on.
“Everyone knows now that is wrong, Mr Downey knows better to his disadvantage that is incorrect,” Mr Farrell told the court.
After hearing the arguments, the president said he intended to reserve judgment to consider the submissions from both sides.
Mr Downey was arrested at his home in Creeslough, Co Donegal, last October under a European arrest warrant after authorities in Northern Ireland determined they had sufficient evidence to charge him with the murders of Lance Corporal Alfred Johnston, 32, and Private James Eames, 33.
The soldiers died in a car bomb attack in Enniskillen, Co Fermanagh, in August 1972.
In 2013, 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 dramatically collapsed after it was revealed he had received a written assurance from former prime minister Tony Blair’s government that he was not actively wanted by the authorities.
The letter was allegedly issued under the terms of the controversial On The Runs (OTRs) scheme.