R v John Anthony Downey
| Jurisdiction | England & Wales |
| Judgment Date | 24 February 2014 |
| Subject Matter | Criminal |
| Court | Crown Court |
IN THE CENTRAL CRIMINAL COURT
THE QUEEN
‐v‐
JOHN ANTHONY DOWNEY
JUDGMENT: ABUSE OF PROCESS
Introduction
1. For obvious reasons, I make an order under s.4(2) of the Contempt of Court
Act 1981 prohibiting the reporting of this judgment until further order.1
2. The defendant, who is now aged 62 (and ordinarily resident in the Republic of
Ireland) has pleaded not guilty to five charges – four of murder and one of
doing an act with intent to cause an explosion. The alleged offences arise out
of the notorious bombing carried out by the Irish Republican Army (“IRA”) in
Hyde Park, London on the morning of Tuesday 20 July 1982. A Remote
Control Improvised Explosive Device which contained about 20‐25 pounds of
commercial high explosive with wire nails as shrapnel and was hidden in the
boot of a blue Morris Marina car, registration LMD 657P, which was parked in
South Carriage Drive, was detonated as the Guard (consisting of sixteen
members of The Blues & Royals Regiment of the Household Cavalry and their
horses, accompanied by two mounted police officers) was passing en route
from Knightsbridge Barracks to Horse Guards for the Changing of the Guard.
Four of the Guard were murdered – Lieutenant Anthony Daly, who was aged
23, and Trooper Simon Tipper, who was aged 19, died at the scene (Counts 1
& 2); Lance Corporal Jeffrey Young, who was aged 19, died the following day
(Count 3); and Squadron Quartermaster Corporal Roy Bright, who was aged
36, died two days after that (Count 4). A total of 31 other people were
injured (a number of them seriously) and 7 horses were destroyed.
1 Following the Crown informing the Court on 25 February 2014 of its decision not to seek
to appeal this judgment Mr Justice Sweeney has lifted all reporting restrictions in relation
to this case save for an order prohibiting reporting of the defendants address beyond that
it is Donegal and prohibiting the reporting of sureties’ addresses.
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3. On the defendant’s behalf it is submitted that I should stay the prosecution
as being an abuse of process. The submission is advanced on four grounds,
namely (in broad outline) that:
(1) A fair trial is no longer possible given the passage of more than thirty
years since the event, the fact that a number of significant witnesses
are now dead, the fact that key exhibits are irretrievably lost, and the
existence of further trial prejudice.
(2) It would be unfair for the defendant to be tried in the light of the
expectation created by governmental statements that prosecutions
would not be pursued in respect of those who would otherwise
qualify for early release (as, it is common ground, the defendant did
and does) under the scheme provided (in accordance with the Good
Friday Agreement) by the Northern Ireland (Sentences) Act 1998 (“the
1998 Act”).
(3) It would be unfair for the defendant to be tried because on 20 July
2007 [25 years to the day after the bombing and under an
administrative scheme in relation to so‐called “on the runs” (“OTRs”)
which was intended to advance the peace process in Northern
Ireland] he was given a clear written assurance on behalf of the
Secretary of State for Northern Ireland and the Attorney General that
there was no outstanding direction for prosecution in Northern
Ireland in relation to him, that there were no warrants in existence,
that he was not wanted in Northern Ireland for arrest, questioning
and charge by the police, and that the Police Service of Northern
Ireland (“PSNI”) were not aware of any interest in him by any other
police force in the United Kingdom‐ whereas in reality the PSNI were
aware, at the time that the letter was given to him, that he was
wanted by the Metropolitan Police in relation to the Hyde Park
bombing (and had been almost continually since May 1983), and the
PSNI had also appreciated, after the letter had been given to him, that
it was misleading in that regard, but did nothing to correct the
situation; and because thereafter, in reliance upon the letter and to
his eventual detriment, the defendant (who is a proven strong
supporter of the peace process) travelled on a number of occasions to
Northern Ireland and the mainland‐ including the final such occasion
when, on 19 May 2013, he was arrested at Gatwick Airport en route
to Greece and was thereafter charged with the instant offences.
(4) Even if the above‐mentioned grounds do not in themselves justify a
stay, their cumulative effect (particularly given the enormous and
unjustifiable delay and the existence of the sort of “sense of security
from prosecution” which would act as a bar to extradition) requires
that the prosecution be stayed.
4. On behalf of the prosecution it is submitted, in summary, that:
(1) Despite the long delay the defendant can receive a fair trial, and the
trial process can accommodate the issues raised on his behalf such as
to ensure a fair trial. In particular, whilst the failure to extradite the
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defendant from the Republic of Ireland in the past explains some of
the delay, it does not impact on the ability of the defendant to receive
a fair trial now.
(2) The political process and past governmental commitment not to
pursue prosecutions, underlying the administrative OTR scheme
under which the 20 July 2007 letter was transmitted to the defendant,
should not impact upon an independent prosecutorial decision to
prosecute.
(3) In any event, the 20 July 2007 letter was the product of error during
the PSNI’s Operation Rapid as opposed to any act of bad faith; it did
not constitute an unequivocal assurance that the defendant would
not, or would never be, prosecuted on the mainland for any terrorist
offences committed before the Good Friday Agreement; the terms of
the letter do not, and were never intended to, amount to an amnesty
for the recipient; and the defendant has not acted on any such
assurance to his detriment.
(4) There is no basis in law for ruling that the delay coupled with the
letter of 20 July 2007 has engendered a “false sense of security” in the
defendant such that the court should hold it an abuse of process to
allow the prosecution to proceed.
The papers and hearings
5. The prosecution provided the court with, among other things:
(1) An Updated Case Summary dated 29 November 2013 (66 pages).
(2) A Summary setting out the essence of the prosecution case for the
purposes of the abuse hearing (4 pages).
(3) A Skeleton Argument on abuse of process (55 pages).
(4) A Prosecution Bundle for the abuse hearing – the content of which
includes two witness statements by Kevin McGinty (whose role in the
period from December 1997 until May 2010 was to advise the
Attorney General on Northern Ireland matters), and a number of
authorities.
(5) Two Notes on Disclosure (dated 19 January 2014 and 30 January
2014) by Mr Little, counsel instructed to conduct the disclosure
exercise on behalf of the prosecution.
(6) A file of disclosed materials in relation to the consideration, in the
period from 1983 to 1993, of the extradition of the defendant from
the Irish Republic (312 pages).
(7) Two files of disclosed materials in relation to the relevant
negotiations in the Northern Ireland peace process, the circumstances
in which the defendant was provided with the letter dated 20 July
2007, and what was realised after the letter had been provided (802
pages).
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