Michael Clifford: Is Irish criminal justice now on trial?

If the Supreme Court were to reject his extradition on the basis that it didn’t recognise the murder conviction, how would France react, asks Michael Clifford.

Michael Clifford: Is Irish criminal justice now on trial?

LAST month, the Supreme Court consented to the extradition of a man wanted in Poland for drug dealing. The court granted an appeal by the Polish authorities, after High Court judge, Aileen Donnelly, refused the request to extradite the man, Artur Celmer.

Judge Donnelly had cited the interference of judicial independence by the Polish government as the reason for her ruling. If the judiciary isn’t independent, the chances of a fair trial would be greatly diminished.

Judge Donnelly’s ruling questioned the integrity of the criminal justice system in another EU country. She did so with good reason. The government in Poland is encroaching on the judiciary’s independence, following a trend around the globe of strongman populists hammering away at longstanding institutions.

On November 12, the five-judge Supreme Court accepted that there were changes in the status of the judiciary’s independence in Poland, but those changes did not meet a threshold that implied it would interfere with a fair trial.

The Supreme Court’s decision, incidentally, avoided a diplomatic row with Poland.

In the new year, a case comes before the High Court that has the potential for a major diplomatic backlash.

The French judiciary has applied for the extradition of Ian Bailey for the murder of Sophie Toscan du Plantier. Mr Bailey was arrested twice following Ms Du Plantier’s brutal murder in West Cork in 1996.

The DPP examined the file on Mr Bailey on at least three separate occasions and, each time, concluded there was insufficient evidence to bring a charge.

The French investigated the murder under a Napoleonic law concerning crimes against French citizens abroad. In 2012, the High Court in Dublin consented to Mr Bailey’s extradition for questioning under a European arrest warrant. The Supreme Court overturned this ruling on appeal.

In 2017, the High Court threw out a second attempt at extradition as “an abuse of process,” on the basis that it had already been ruled on.

Last May, Mr Bailey was tried in absentia, in Paris, for the murder.

He was found guilty and sentenced to 25 years in prison. A new application for extradition was made to the Irish authorities on June 27 last. Now, in French eyes, he is a convicted murderer, and Ireland, a fellow EU member, is being asked to hand him over.

Last Monday, the High Court endorsed the warrant.

It took nearly six months for the Government to apply to the courts to get the ball rolling on the extradition. The snail’s pace may well be a reflection of sensitivity attaching to the case. A hearing awaits in the new year.

There have been two developments since the last attempt to get Mr Bailey to France. One ground for the ruling in 2012 concerned European legislation that didn’t make allowances for the extradition of a citizen of a third country.

In other words, Mr Bailey, an Englishman, couldn’t be extradited to France as an Irish or a French person could. That law was changed last April.

The second development, and by far the most significant, is Mr Bailey’s conviction in Paris. If the Supreme Court were to reject the extradition on the basis that it didn’t recognise the murder conviction, how would France react?

Ian Bailey. Picture: Collins
Ian Bailey. Picture: Collins

Would they consider any such ruling an insult to their criminal justice system and judiciary? It’s one thing to thumb a nose at Poland.

Effectively telling the powerful republic of France that its criminal justice system is a sham would be a different matter.

In the view of this observer, who sat through the Paris trial, it was a sham. Mr Bailey’s absence meant there was no testing of evidence. But the evidence, such as it was, bore no resemblance to what would have been permitted in an Irish court.

A French detective who had travelled to West Cork told the court that a garda he met was of the opinion that Mr Bailey was guilty.

A psychologist produced a report in which he opined that Mr Bailey had a borderline personality. The psychologist had never met, not to mind interviewed, his subject.

Just two witnesses travelled from Cork to give evidence. Up to a dozen witnesses were contacted with less than a fortnight’s notice, requested to travel to Paris, make their own arrangements, and show up in the court.

One might speculate that witnesses from Ireland were regarded as props rather than central components in reconstructing events around the violent death of Ms du Plantier.

The most bizarre evidence was probably the only new detail in the case.

A close friend of Ms du Plantier, Agnes Thomas, told the court that, 19 years after the murder, she remembered a conversation she had with Ms du Plantier about a week before the latter died.

“She had mentioned that there was a man who wanted to meet her. She didn’t really want to meet him, but didn’t know what to do,” Ms Thomas told the Paris court.

Ms Thomas said that Sophie told her that the man was “a weird guy who wrote poetry”.

The inference was that this man was Mr Bailey, who does write poetry and might, in certain respects, be considered weird. Ms Thomas also spoke to Sophie hours before Sophie’s death and she had related this final conversation many times.

But only 19 years later, when she was involved in an organisation set up to attain justice in the case, did she remember the earlier conversation. Ms Thomas’s evidence would never have been admitted in an Irish court.

There appeared, to this observer, to be two objectives driving the Paris trial.

One was to bring solace to the bereaved family. The second was to produce a result that would beef up the next request to extradite Mr Bailey.

Both are understandable aspirations, but using the guise of a murder trial to pursue them would hardly be acceptable for a stable and mature democracy.

This case will be heard by the High Court in Dublin, most likely by the Court of Appeal and possibly by the Supreme Court.

The judges involved may well, in their deliberations, avoid specific reference to the Paris trial. If so, there could be a diplomatic backlash from a friendly and — in the context of the EU — powerful country.

If, however, the Irish courts recognise the trial as a legitimate exercise and rule accordingly, it would be an alarming development.

Next Monday will be the 23rd anniversary of Ms du Plantier’s death.

Her family’s heavy burden of bereavement has been exacerbated by the failure to bring closure to her murder. They have carried their pain with dignity.

But, unfortunately, the pursuit of answers in the case could be interpreted as an attack on basic tenets of criminal justice, as understood in this country.

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