Two men in their 70s will be surrendered to the North to face charges relating to the murder of an RUC officer nearly 50 years ago after a court rejected their argument that their extradition would be an abuse of process.
At the High Court extradition hearing on Thursday, Mr Justice Patrick McGrath said there was no evidence to suggest that John Edward McNicholl (73) and Seamus Christopher O'Kane (74) would not receive a fair trial in Northern Ireland, as he ruled that a delay in serving warrants on the respondents was not grounds for refusing their surrender to the north.
Both men escaped from the Maze Prison in a dramatic tunnelling breakout in May 1976 before they could be put on trial.
Mr O'Kane has been living openly in the Meath area for almost five decades while Mr McNicholl, who was deported from the United States, has been here since 2003.
Mr McNicholl, of Newmills, Letterkenny, Co Donegal, and Mr O'Kane, of Scalestown, Dunshaughlin, Co Meath are wanted in the UK.
They face charges arising from an investigation into the murder of 25-year-old Constable Robert John McPherson in Co Derry on July 26th, 1975 and the attempted murder of a second constable.
Mr McNicholl is charged with murdering Constable McPherson and attempted murder, while Mr O'Kane is charged with possession of firearms, including an RUC-issued firearm taken during the ambush on Constable McPherson.
At the High Court last year, Mark Lynam SC, for Mr McNicholl, said his client had been in Ireland since 2003 but for reasons unknown, the UK made no effort to seek his surrender until now. Mr Lynam said he was arguing that this was a "significant abuse of process".
Counsel said the UK had made repeated decisions over several decades not to seek his client's surrender but then "the political wind has changed and the Legacy Act has come in and Mr McNicholl was in the unfortunate cohort of people who were now going to be proceeded against".
The extradition warrant was issued four days prior to the commencement of the Legacy Act, which limits criminal investigations and prosecutions related to Troubles era offences.
It was submitted that Mr McNicholl is now a "frail" man with severe health problems.
John Berry BL, for Mr O'Kane, said he was also making an objection on grounds of an abuse of process.
He said the delay in the UK authorities seeking his client's extradition has not been adequately explained. Following a failed extradition attempt in 1978, Mr Berry said his client "got on with his life" and lived normally and unexceptionally in the Republic for nearly half a century.
In delivering judgement on Thursday, Mr Justice McGrath said that in the case of both men, while there was no doubt that their surrender would impinge on their family life, this was “a regular if not inescapable consequence of surrender”. He said this disruption was not so exceptional that it would constitute a breach of their family rights.
In the case of Mr McNicholl, Mr Justice McGrath noted that the respondent had argued that due to the delay and the lapse of the warrant, the refusal of his surrender would be in the interest of justice.
He noted that the respondent was now 73 and had a number of health issues, but he found these issues were well controlled at present, while there was nothing put before the court to suggest Mr McNicholl would not receive proper medical treatment.
The judge said that in the absence of any evidence that suggested otherwise, the UK courts will provide a fair trial.
“There is no basis to suggest he will not receive a fair trial in Northern Ireland, and no evidence has been put before the court to raise any doubt that he will be shut out from challenging this prosecution in Northern Ireland,” said Mr Justice McGrath.
He went on to say that there was a public interest in Ireland honouring its various extradition treaties.
Saying that he did not think this was a case where the respondent’s surrender would be an abuse of process, Mr Justice McGrath rejected the grounds of objection and said the court would make an order for his surrender.
In the case of Mr O’Kane, Mr Justice McGrath said that an explanation had been offered by the requesting state for the passage of time between the alleged offence and the extradition request.
“Although a long number of years have passed, there is no reason to doubt he will receive a fair trial,” said Mr Justice McGrath.
Finding there were also no grounds to conclude this was a case where surrender was an abuse of process, Mr Justice McGrath rejected the application and made an order for the respondent’s surrender.
The matter was put back to April 3rd, with both men remanded on continual bail to that date.
Warrants for the arrest of both men were issued following a request by the Northern authorities last year as part of an ongoing investigation into Constable McPherson's murder.
Constable McPherson was from Leck, outside Coleraine in Co Derry. He was shot dead in an INLA ambush in Dungiven Main Street around midday. He was hit by a single shot when he and a colleague were ambushed as they investigated a report of a suspect car. His fellow officer was hit multiple times but survived.
Both Mr McNicholl and Mr O'Kane face four charges relating to the possession of explosives and firearms on February 16, 1976 at Garvagh, Co Derry. The court heard that an RUC-issued firearm retrieved at that location had been taken during the ambush on Constable McPherson.
The extradition warrant relating to Mr O'Kane states that on May 5th, 1976, he and others escaped from custody at the Maze Prison in Co Armagh prior to a decision being made to prosecute him for the four offences.
At a previous hearing of the High Court, Detective Garda Tony Keane, of the Garda Extradition Unit, said that following a search of the premises at Garvagh in 1976, the RUC recovered two electric detonators, two improvised pressure mat switches, two Walther pistols, one Browning pistol, a 0.22 rifle, a Remington shotgun and 104 rounds of ammunition.
Detective Keane said the warrant issued by the Northern authorities states that Mr O'Kane and two other males were found hiding in an upstairs bedroom in the property and were arrested.
The warrant continues that Mr O'Kane was interviewed on February 17th, 1976, where he made a full admission to possessing the explosive substances, firearms and ammunition recovered from the property at Brockaghboy in Garvagh.
