DPP review emerged after 10 years

A REVIEW by the DPP’s office criticising the Garda investigation into the murder of French film-maker Sophie Toscan du Plantier, and outlining why the DPP decided not to prosecute Ian Bailey only came to the attention of the Department of Justice 10 years after it was completed, the Supreme Court was told yesterday.

The contents of that review, provided to senior gardaí in 2001 and to Mr Bailey’s lawyers last November on the advice of the Attorney General, are expected to be addressed by Mr Bailey’s lawyers today.

He is appealing a High Court order for his extradition to France in connection with the 1996 murder.

Asked yesterday when the department became aware of the 2001 review, senior counsel Robert Barron, for the justice minister, said he was instructed that the department only became aware of it last October.

That material was not previously sent to the DPP, Mr Barron said. Another probe, prompted by claims made by Mr Bailey’s solicitor, Frank Buttimer, and carried out by Assistant Garda Commissioner Ray McAndrew in 2007, was given to the department but did not include the material in this case, said Mr Barron.

Mr Bailey’s appeal will enter a third day, today, when it is expected to conclude, with judgment reserved.

The 54-year-old has always denied any involvement in the murder of Ms du Plantier, 39, whose body was discovered near her holiday home in Schull, Co Cork, on December 23, 1996. The French authorities have sought his surrender under a European arrest warrant of February 2010.

In submissions yesterday, Mr Barron argued that there was no legal bar to that surrender.

He accepted Article 4 of the European Framework Decision allows for refusal of surrender of a person to a state intending to exercise an extra-territorial jurisdiction to prosecute in circumstances where the executing state asserts no similar extra-territorial jurisdiction.

He disputed arguments that this required the court to refuse to surrender Mr Bailey, a British national, to France because France sought to exercise extra-territorial criminal jurisdiction to prosecute in circumstances where Ireland would not assert extra-territorial jurisdiction to prosecute the same offence committed outside its jurisdiction by a non-Irish citizen.

Mr Barron accepted that if full effect had been given in Irish law to the provisions of Article 4, there would be a bar to the extradition of Mr Bailey. No such full effect was given, he submitted.

He argued Section 44 of the European Arrest Warrant Act 2003 — enacted here to give effect to the Framework Decision — does not prohibit Mr Bailey’s surrender and was not applicable to the circumstances of Mr Bailey’s case.

The interpretation of Section 44 is a key issue in the appeal. Mr Bailey’s lawyers insist it prohibits his extradition as he is a British citizen, the offence occurred in Ireland, the victim was a French citizen and the necessary reciprocity was not in place between the Irish and French systems.

The minister denies Section 44 applies and denies reciprocity is relevant.

The appeal continues.