Legacy Act led police to pursue Donegal resident over 1975 murder, High Court told

A change in the "political wind" led to a "frail" 72-year-old man being pursued by the Northern Irish authorities for the alleged murder of a police constable nearly 50 years ago, just days before the UK's controversial Legacy Act became law, the High Court has heard.

Mark Lynam SC said the extradition proceedings against his client John Edward McNicholl are "oppressive, harassing and entirely inappropriate".

He 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.

Lawyers for Mr McNicholl and a second man Christopher O'Kane, who is accused of explosives and firearms offences related to the constable's murder, argued that the extradition is an abuse of process and a breach of the European Convention on Human Rights.

In response, Remy Farrell SC for the Minister for Justice said that arguments alleging abuse of process by prosecutors in Northern Ireland are matters for the courts in Northern Ireland and not the High Court in Dublin.

John Edward McNicholl (72) of Newmills, Letterkenny, Co Donegal and Seamus Christopher O'Kane (73) 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 26, 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. Those firearms were recovered in an RUC operation on February 16, 1976 at Garvagh, Co Derry.

Both men escaped from the Maze Prison in May 1976 before they were tried. Mr McNicholl travelled to the United States but was later extradited to Ireland.

Mr Farrell today told the court that the British authorities sought the extradition of Mr O'Kane in 1978 for the offence of escaping from prison but the High Court refused surrender because the offence was of a political nature. Under the Extradition Act 1965, surrender would be refused if the offence fell into such a category.

Mr Remy said the UK authorities considered seeking surrender of both men numerous times between the 1970s and 1990s for the firearms or murder offences but decided not to pursue extradition because the High Court in Dublin had refused similar requests for other suspects.

However, in 2003 the European Arrest Warrant Act replaced the 1965 legislation and refusals on political grounds were no longer part of Irish law. Mr Remy said the authorities in Northern Ireland again considered applying for extradition a number of times between 2003 and 2023 but decided it would not be "appropriate". When an explanation was sought, the authorities in Northern Ireland said the "records are incomplete" and it is not known why a European Arrest Warrant was not sought between 2003 and 2023.

John Berry SC, on behalf of Mr O'Kane, said the delay in the UK authorities seeking his client's extradition has not been adequately explained.

Following the 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.

Mr Berry said the extradition request is a breach of Article 8 of the EU Convention which provides the right to respect for a private and family life.

Mr Berry said he is asking the court to "vindicate the private family life" that Mr O'Kane enjoyed having developed a legitimate belief that these matters were behind him.

Mr Berry also argued that in 1978 the Northern Irish Authorities should have issued a warrant in respect of all offences Mr O'Kane might be charged with. Mr Berry said previous decisions by various courts prohibit a "drip drip" approach whereby a person could face multiple litigations where it was possible for all matters to be dealt with at once.

Mr Lynam said there is no explanation as to why his client's surrender was not sought after he was returned to Ireland from America or following the introduction of European Arrest Warrants. He suggested the decision not to pursue extradition was "political" but then the political wind changed following the introduction of the Legacy Act.

He said his client's GP has submitted an affidavit describing him as a "frail" man with severe health problems. Counsel added: "It is utterly unjust the way the authorities in Northern Ireland have proceeded to this point... this court is now being asked to join in that injustice, to overlook that injustice, to endorse that injustice."

Mr Farrell responded that neither man could have had a legitimate expectation that they would not be pursued for the offences. While he accepted that there are "substantial issues" regarding the delays in the case, neither man had put forward any evidence that such arguments could not be made in the court in Northern Ireland.

Mr Justice Pat McGrath deferred judgment and adjourned the matter to December 16.