Fugitives have 'no legitimate expectation of permanent immunity', court finds
Eoin Reynolds
The Court of Appeal has upheld a decision to extradite two men to Northern Ireland for offences related to the murder of an RUC officer 50 years ago, finding that fugitives who go on to live ordinary lives enjoy "no legitimate expectation of permanent immunity".
However, the three-judge court placed a stay on the extraditions to allow the men to ask the Supreme Court to hear their cases.
John Edward McNicholl (73) of Newmills, Letterkenny, Co Donegal and Seamus Christopher O'Kane (74) of Scalestown, Dunshaughlin, Co Meath are wanted in the UK.
They face charges arising from an investigation into the INLA murder of 25-year-old Constable Robert John McPherson in Co Derry on July 26th 1975 and the attempted murder of a second constable.
McNicholl is charged with murdering Constable McPherson and attempted murder, while O'Kane is charged with possession of firearms, including an RUC-issued firearm taken during the ambush on Constable McPherson.
Those firearms were recovered in an RUC operation on February 16th, 1976, at Garvagh, Co Derry.
Both men escaped from the Maze Prison in a dramatic tunnelling breakout in May 1976 before they could be put on trial.
O'Kane has been living openly in the Meath area for almost five decades, while McNicholl, who was deported from the United States, has been in the Republic since 2003.
At a previous sitting of the High Court, Judge Patrick McGrath said there was no evidence to suggest that McNicholl and O'Kane would not receive a fair trial in Northern Ireland, as he ruled that a delay in serving warrants on the men was not grounds for refusing their surrender.
Judge Alex Owens at the Court of Appeal on Monday said that while the long delays in seeking a warrant indicate "maladministration in Northern Ireland", he said the circumstances do not justify a refusal of the extradition request.
In his judgment, he wrote that the court does not have the power to dismiss an application for surrender just because the issuing State is unable to provide an explanation for not moving forward sooner. Lawyers for the two men had argued that the delay was evidence of an "abuse of process".
However, Owens said delay alone, without evidence of a breach of a right under the Constitution or European Convention, is not a sufficient ground for refusal.
He further rejected suggestions that extradition would be a breach of the men's fundamental rights after they spent several decades living ordinary lives. As fugitives, the judge said, they enjoyed "no legitimate expectation of permanent immunity".
"By getting married, starting a family, buying a home or engaging in ordinary life," the judge said they did not diminish Ireland's interest in honouring its commitments under the Trade and Cooperation Agreement, which sets out the parameters for extradition to the UK.
Further arguments related to the men's health "are not the sort of exceptional matters which would justify a refusal," he said.
