Two pensioners (70s) granted leave to appeal extradition over RUC officer murder

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2 days ago

Two men in their 70s have been granted leave to appeal their court-ordered extradition to the North, where they are wanted to face charges relating to the murder of an RUC officer nearly 50 years ago.
At the High Court on Wednesday, Mr Justice Patrick McGrath ruled that while authorities there have offered a detailed explanation for the delay in seeking the surrender of John Edward McNicholl (73) and Seamus Christopher O'Kane (74), this was not complete and there have been some "lengthy periods of inaction".
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He found that these were cases where an important point of law arises and it was desirable they be brought before the Court of Appeal.
Mr McNicholl, of Newmills, Letterkenny, Co Donegal, and Mr O'Kane, of Scalestown, Dunshaughlin, Co Meath, are wanted in the North. 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.
Robert John McPherson
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.
Both men escaped from the Maze Prison in a dramatic tunnelling breakout in May 1976 before they could be put on trial.
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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.
In March of this year, Mr Justice McGrath said there was no evidence to suggest that Mr McNicholl and Mr O'Kane 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.
When the matter came back before the court today, Mr Justice McGrath said that the respondents were seeking leave to appeal his previous decision to order their surrender.
He said that in the case of Mr O'Kane, 48 years have passed since these alleged offences and the respondent had queried the absence of an explanation for inaction by the authorities in the North. Mr Justice McGrath said that Mr O'Kane had also raised the fact that when a previous application was made in 1977/78 for the respondent's surrender, he had been charged with certain offences that were not included in this application.
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The judge said that the case of Mr McNicholl was somewhat similar, with the respondent pointing out there had been a delay of 48 years and again questioning the degree of action or inaction by the Northern Irish authorities.
Mr Justice McGrath said that the State had submitted it is well established law that a delay is not a standalone ground to refuse the surrender of an accused person. He noted that the State had outlined that the court had previously considered all the factors and decided that an abuse of process did not arise.
He said that a very long time has passed, but in both cases it was true to say that a detailed explanation had been offered by Northern Irish authorities for the passage of time.
However, Mr Justice McGrath said this was not a complete explanation and there had been some lengthy periods of inaction by the authorities.
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In both cases, the two men were living openly in the State and were available to answer an application for their surrender.
Mr Justice McGrath said that in the matter of Mr O'Kane, he believed that this was a case where a point of law of importance arose, so it was desirable that a case should be brought to the Court of Appeal.
The judge said that he was somewhat less certain in the case of Mr McNicholl, however he ruled that he would certify that one question in his case would go to the Court of Appeal.
Mr Justice McGrath said that he proposed the questions would be whether the lapse of time of 48 years amounted to an abuse of process, and whether the omission by the issuing state to seek the surrender for all offences which the accused was at that time charged with constituted an abuse of process.
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The legal team for each accused man was told that they would be given time to consider the wording of these questions and the matter was adjourned to Thursday, with the two remanded on continuing bail.
Warrants for the arrest of both men were issued following a request by the Northern Ireland 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 16th, 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.
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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 Irish 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.
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 Northern Ireland prior to a decision being made to prosecute him for the four offences.