Judges agree no intention by France to ‘try’ Bailey

Ian Bailey walked free from the Supreme Court yesterday after the five-judge court ruled he cannot be extradited to France in connection with the murder of filmmaker Sophie Toscan Du Plantier.

All five judges of the Supreme Court upheld Mr Bailey’s argument that his extradition should be refused on the ground there is no actual intention by the French authorities to “try” Mr Bailey at this stage. But Mr Bailey’s legal team yesterday indicated his side may now bring proceedings given the nature of newly disclosed material critical of the Garda investigation into the murder, particularly material alleging a senior garda or gardaí tried to put pressure on the state solicitor for West Cork to procure a prosecution of Mr Bailey.

Mr Bailey’s lawyers in the Supreme Court also secured costs against the State for both the High and Supreme Court extradition proceedings. The bill is likely to run to several million euro as Mr Bailey’s lawyers were also given the go-ahead to apply for costs at the highest scale.

All five judges — the Chief Justice, Ms Justice Susan Denham, Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Donal O’Donnell — gave separate judgments allowing the appeal with several noting it arose in “unique circumstances” and raised “unprecedented” questions of law.

The court had to rule on three legal issues but, at the request of the State and with “reluctant” consent of Mr Bailey, it had adjourned consideration of a fourth ground — that extradition would breach Mr Bailey’s constitutional rights and amount to abuse of process given the delays involved, the DPP’s decision not to prosecute him and the contents of the newly disclosed material — pending its decision on the other three.

Both sides had accepted, if Mr Bailey won on any of the three issues, the fourth would not have to be addressed, a factor which, Mr Justice John Murray previously noted, would be “a relief” to gardaí.

The court found unanimously in favour of Mr Bailey on one issue, four judges upheld his arguments on the second and all five rejected his arguments on the third, while the result the fourth issue did not have to be addressed.

The five all agreed extradition should be refused on the ground there was no actual intention by the French authorities to “try” Mr Bailey at this stage, as required by Irish law — section 21.A of the European Arrest Warrant Act 2003 — which implemented the European Framework Decision on Extradition.

The Chief Justice, Ms Justice Susan Denham, said it was clear from the facts that, while a decision had been made in France equivalent to charging Mr Bailey, it did not incorporate a decision to “try” him for murder. Section 21.A requires that a decision has been made to charge Mr Bailey with, “and try him for”, the offence in France but such a decision had not been made, she said.

Four of the judges, with Mr Justice O’Donnell dissenting, upheld Mr Bailey’s argument that section 44 of the European Arrest Warrant Act 2003 prohibits extradition in circumstances where the alleged offence was committed outside French territory and Irish law does not allow prosecution for the same offence when committed outside its territory by a non-Irish citizen.

Mr Justice Fennelly said section 44 prevented Mr Bailey’s surrender because the offence was committed outside France, which had issued the extradition warrant; murder committed outside Ireland is not an offence under Irish law unless committed by an Irish citizen and, under Irish law, a person who is not an Irish citizen cannot be prosecuted for a murder outside Ireland.

Mr Justice Murray noted France claims extra-territorial jurisdiction against anyone who commits a grave crime against a French citizen anywhere in the world. This contrasted with Ireland which only claims extra-territorial jurisdiction in relation to crimes of murder committed by an Irish citizen. Murder of an Irish citizen in another country does not constitute an offence under Irish law.

Mr Justice Hardiman noted several “opacities” in the 2010 French extradition warrant including absence of any information as to why and on what basis an extra-territorial jurisdiction was being exercised and how the French 10-year statute of limitation period for prosecution of such offences was said to be suspended.

The French request also failed to address why forcible delivery of Mr Bailey to France was being sought when the Irish authorities had decided the evidence did not warrant his prosecution, he added.

All five judges dismissed Mr Bailey’s appeal on the third ground — whether Mr Bailey could be prosecuted for an offence in circumstances where the DPP here decided in 1999 not to prosecute him and maintained that view despite several reviews. Mr Justice O’Donnell rejected Mr Bailey’s argument, because of the DPP’s 1999 decision not to prosecute him, he effectively had a “right” not to be extradited which was not displaced by the Criminal Justice (Terrorist Offences) Act 2005 (which amended the EAW Act 2003 to allow for extradition even when a decision was made here not to prosecute).


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