The High Court will be asked tomorrow to free Angelo Fusco on the grounds of "profound changes" in circumstances having been brought about by the Belfast Agreement.
The court will also be asked to hold that the Garda erred in failing to hand him over to the RUC within a month of the Supreme Court having affirmed his extradition to Northern Ireland.
As the Belfast man was being driven to the Border yesterday under Garda escort, Mr Justice Finnegan granted an order prohibiting his hand-over to the Northern Ireland authorities and ordering that he be brought before the High Court tomorrow morning.
Dr Michael Forde SC, counsel for Fusco, told the court his client had been arrested at a checkpoint at Castleisland, near Tralee, on Tuesday evening on foot of an extradition order granted by the District Court in 1992. He said an appeal to the High Court had succeeded but had failed in February 1998 in the Supreme Court which upheld the District Court order.
Fusco, an unemployed fisherman, had not been extradited in the last two years, despite living openly in Tralee, Co Kerry.
Dr Forde said that under Section 53 of the Extradition Act, 1965, Fusco should have been extradited within a month of the Supreme Court's decision in 1998, and there was no reasonable excuse for a two-year delay in that his client had openly resided in the Tralee area.
He told Mr Justice Finnegan there had been such profound relevant changes in circumstances since the District Court extradition order had been affirmed that there was an inherent jurisdiction to reconsider it and set it aside.
Dr Forde said the changes in circumstances included the Belfast Agreement and the release of political prisoners under it which was being implemented.
He said Fusco would be asking the High Court to carry out an inquiry under the Constitution into his present detention and grant an order preventing his extradition to Northern Ireland.
Mr Michael Farrell, of Michael E. Hanahoe & Co, solicitor for Fusco, told the court Fusco had escaped from custody in Northern Ireland where he had been held in relation to incidents in 1980. He had been arrested and convicted in this jurisdiction of unlawful escape.
On release he had been arrested and brought to the District Court which had made the original extradition order. Mr Farrell said that as part of the Belfast Agreement there had been a specific agreement on the accelerated release of political prisoners.
Under the agreement any prisoner who had not been released by July 2000 would be released then. "It is my understanding that Mr Fusco would qualify for release on two grounds, firstly that he had been convicted of a scheduled offence and that when detained here he was recognised to be a member of an organisation which was one of those on a ceasefire," Mr Farrell said.
Angelo Fusco was convicted in the Northern Ireland courts of murdering Capt. Herbert Westmacott of the SAS in 1980. With seven other prisoners he escaped from Crumlin Road Prison in 1981 and was jailed for life in his absence.
Capt. Westmacott was shot dead by the IRA with an M60 machinegun while leading an eight-man patrol in north Belfast during a raid on a house. Fusco was among a number of men later arrested and 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.