A request to extradite Ian Bailey to France for a third time, where he is facing a 25-year prison sentence for the murder of filmmaker Sophie Toscan du Plantier, is an "abuse of process", his lawyers have told the High Court.
Ronan Munro SC, for Mr Bailey, today argued that his client has an "ironclad right" not to be surrendered to France and it had not been threatened in any way by subsequent developments in law.
This is the third time French authorities are seeking Mr Bailey’s surrender in relation to the death of Ms du Plantier, whose badly beaten body was found outside her holiday home in Schull in December 1996.
Mr Bailey (aged 63), with an address at The Prairie, Liscaha, Schull, west Cork, was convicted of the French woman’s murder in his absence in a Paris court in May 2019. The three-judge Cour d’Assises (criminal trial court) in Paris accordingly imposed a 25-year prison sentence on Mr Bailey in his absence. The Englishman, who denies any involvement in the mother-of-one’s death, did not attend the French court and had no legal representation in the proceedings, which he has described as a “farce”.
Mr Bailey was arrested at the Criminal Courts of Justice Building on foot of a European Arrest Warrant in December 2019. He was remanded on bail after a High Court judge subsequently endorsed the third European Arrest Warrant (EAW) seeking his extradition to France.
Mr Bailey is facing a 25-year prison sentence for the murder of Ms du Plantier and the three-day full extradition hearing, where he will contest the request for his surrender, commenced in the High Court in Dublin today, a day after Bastille Day in France.
Opposing an application for his surrender to France, counsel for Mr Bailey, Mr Munro with David Conlan Smyth SC and Marc Thompson BL, said the central submission in the hearing was that there is a binding judgment from the Supreme Court in 2012 which prohibits the surrender of Mr Bailey based on section 44 of the European Arrest Warrant Act 2003, which remains untouched.
Section 44 states that a person shall not be surrendered under this Act if the offence specified in the EAW was committed in a place other than the issuing State and the offence does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State.
The lawyer submitted that his client had an "ironclad right" as well as an "unassailed right" not to be surrendered to France.
Mr Munro argued that the State's legal submissions set out that the Supreme Court decision in 2012 can be distinguished due to a change in the law with the Criminal Law (Extraterritorial Jurisdiction) Act 2019. "I think what they mean is if an Englishman ordinarily resident in Ireland is sought today for the murder of Ms du Plantier in 1996 then that person wouldn't have the benefit of the interpretation of section 44 because of legislative change," said Mr Munro, adding that he did not accept this proposition for one second.
Mr Justice Paul Burns interjected at this stage and asked if the change in the law last year did not materially affect the decision of the Supreme Court in 2012 then was the High Court bound by that. In reply, Mr Munro said it was and pointed out that the 2019 legislation had not sought to "dismantle" or set aside Mr Bailey's "vested right" not to be surrendered.
Furthermore, Mr Munro submitted that a third set of proceedings and a third attempt to have his client prosecuted was "an abuse of process", something the court must apply a very high level of scrutiny to. "The very fact that there is a third set of proceedings is the very indicator that an abuse of process has been taking place," he said.
Mr Munro also told the High Court that his client had sworn an affidavit setting out his objections to being surrendered to France. In the affidavit, Mr Bailey said he has been greatly restrained and unable to travel freely since the issuing of the EAW in 2010.
Mr Bailey explained that he was unable to visit his mother in a nursing home in the UK or attend her funeral, something, he said "had been one of the cruellest aspects of this entire process".
Mr Munro also raised the issue that the French authorities did not seek to invite Mr Bailey to attend his trial in 2019 and his solicitor, Frank Buttimer, was not invited either. The barrister said this seemed strange and described it as an "unusual feature" of the trial.
French authorities previously sought the surrender of Mr Bailey in 2010 but this application was refused by the Supreme Court in 2012, which held that section 44 prohibited 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.
A second French extradition request in respect of Mr Bailey was dismissed as an “abuse of process” by the High Court in July 2017. On that occasion, Mr Justice Tony Hunt held that the “unique features” of the case justified “termination” of the proceedings.
He said the Minister was “stopped” or halted from obtaining an order for Mr Bailey's surrender in light of the Supreme Court's judgment in 2012 on identical relevant facts.
Mr Bailey and filmmaker Jim Sheridan were present in court for today's hearing.
The extradition hearing continues this afternoon before Mr Justice Burns and is expected to last three days.