Judgment reserved on Bailey appeal
A central issue is whether there is an actual intention by the French authorities to “try” Mr Bailey or whether they are only at an investigating stage.
A document from the French prosecuting authority provided to the court yesterday said, if handed over, Mr Bailey would be at the “investigation procedure” stage of the case and the European Arrest Warrant issued by France for his surrender was “for the purposes of prosecution”.
At the request of the Minister for Justice and with consent of Mr Bailey, the court, pending ruling on those issues, adjourned consideration of another ground of the appeal which includes a review carried out in 2001 by the DPP’s office which criticised the Garda investigation into the murder and set out why former DPP Eamonn Barnes decided not to prosecute Mr Bailey.
The court will address that issue only if Mr Bailey does not succeed on any of the other issues.
Yesterday, Robert Barron, counsel for the Minister for Justice, said the Garda Commissioner, the superintendent heading the murder investigation and entire force disputed matters in that review, objected to it being admitted, and wanted an opportunity to respond to it. Facts not included in the review “that would lead to different inferences and conclusions being reached” and the minister objected to the court taking cognisance of the document without hearing from the gardaí.
Mr Justice John Murray remarked, if it proved unnecessary to address the new material, that would be “a relief” to the entire garda not to have to deal with it. The DPP had said this was a “thoroughly flawed” investigation, he said.
Mr Justice Adrian Hardiman said no one had suggested the material amounted to evidence of the matters or facts set out in it.
Martin Giblin, counsel for Mr Bailey, said it was now “absolutely clear” his concern about further material to be disclosed had been vindicated and there was further material which could influence the rest of the case. However, while Mr Bailey was “not very happy about it”, he would not object to the Supreme Court first determining the three issues.
The first issue is whether there is jurisdiction to grant the extradition order. Mr Bailey claims section 44 of the European Arrest Warrant Act 2003 prohibits surrender because 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.
The second issue is whether surrender is prohibited in circumstances where the DPP here decided not to prosecute Mr Bailey. A 2005 law amending the 2003 act so as to allow for surrender of persons whom the DPP decided not to prosecute cannot be applied retrospectively to Mr Bailey, it is claimed.
The third issue is whether there is a decision to “try” Mr Bailey within the meaning of Section 21 of the 2003 act. It provides the High Court “shall” refuse to surrender an unconvicted person if it is satisfied a decision had not been made to “charge the person with, and try him for”, that offence in the issuing state [in this case, France].
Chief Justice, Ms Justice Susan Denham, sitting with Mr Justice Murray, Mr Justice Hardiman, Mr Justice Fennelly and Mr Justice Donal O’Donnell, said the court would reserve judgment on the three issues.
