A High Court judge sent former IRA man Angelo Fusco back to prison last night to await a legal challenge against fresh attempts to extradite him to Northern Ireland to serve a life sentence for murder. Fusco (43), of Shanakill, Tralee, Co Kerry, successfully applied for a judicial inquiry into his detention and a review of a District Court order extraditing him to the North to serve a minimum 30 years for his part in the murder of SAS Capt Herbert Westmacott 20 years ago. Mr Justice Finnegan refused bail on the grounds that in the past Fusco had shown such determination to evade enforcement of the extradition order as to be likely to abscond again should his legal challenge fail. Within the next two to three months the High Court will consider if it has an inherent jurisdiction to review and quash the extradition order on the grounds of changes brought about by the prisoner release programme written into the Belfast Agreement.
It will also determine if the warrants for Fusco's arrest, under the extradition order, had lapsed in that they had not been executed within a month of the Supreme Court affirming their legality in February 1998. Fusco's legal team, headed by Dr Michael Forde SC, will also challenge his detention on the basis that the grounds on which he was arrested were defective. Dr Forde, who appeared with Mr Richard Humphreys, presented what he described as a "shopping list" of reliefs being sought by Fusco legally to block his extradition, including an order for his immediate discharge from Garda custody. He told the court that Fusco escaped, with seven others, from Crumlin Road courthouse in 1981 and had been convicted and jailed for a minimum of 30 years in his absence for the murder of Capt Westmacott, who was shot dead by the IRA in north Belfast.
Fusco was among several men charged with the killing. The day before the end of their trial in Belfast in 1981, the accused men escaped from the court. In January 1982, Fusco was arrested in Tralee and sentenced to 10 years in Portlaoise Prison, Co Laois. As he neared the end of the sentence he was brought before the Dublin District Court on foot of extradition warrants from the Northern Ireland authorities. Fusco appealed the extradition to the Supreme Court, which ruled in 1998 that the District Court order was valid. Gardai told the court yesterday they had been on the lookout for him until Monday night last, when he was arrested near Tralee, Co Kerry. He was on his way under Garda escort to the Border on Tuesday when Mr Justice Finnegan granted an injunction restraining his being handed over to the Northern Ireland authorities. Mr Michael Farrell, of Michael E. Hanahoe & Co, solicitor, told the court there had been a profound change in the circumstances affecting Fusco brought about by the signing of the Belfast Agreement.
He said the agreement contained a section on prisoners which provided for an accelerated release programme for prisoners convicted of scheduled offences in Northern Ireland who were affiliated to organisations maintaining a complete and unequivocal ceasefire. Under the agreement, he said, political prisoners were to be given early release dates and qualifying prisoners who remained in custody two years after the start of the scheme would be released at that point. When Fusco had been in custody in the Republic, he had been recognised as belonging to a group on ceasefire and would qualify for early release under the Belfast Agreement. He believed that if returned to Northern Ireland, he would be expected to be given credit for time spent in prison in the Republic and would be due an early release date either before or by July 2000. He believed it would be futile to extradite Fusco to Northern Ireland as he would be likely to serve only a few months, at most, prior to release. Mr Edward Comyn SC, counsel for the Garda Commissioner, said the State would be preparing evidence that Fusco had deliberately evaded apprehension since the Supreme Court decision of February 1998.
Two Garda witnesses gave evidence of having arrested Fusco last Monday night. They said they found two driving licences and an identity card bearing Fusco's photograph, but with false names and addresses both in Andersonstown, Belfast, and Donnybrook, Dublin. Fusco, in evidence, said he had used one of the driving licences to make visits to Northern Ireland and another to visit his home in Tralee. He used a legal driving licence for part-time work with a builder who carried out work in Dublin. He said he felt the gardai had not wanted to extradite him and he had carried the false Irish driving licence to give any garda who did not want to arrest him "a way out". The matter was put in for mention on January 18th with an exchange of legal submissions and sworn affidavits prior to January 31st.