Court asked if absence of DPP prosecution bars extradition

IAN BAILEY has secured leave to appeal to the Supreme Court against an order for his extradition to France in connection with the killing of Sophie Toscan du Plantier in Co Cork 14 years ago.

Mr Justice Michael Peart ruled yesterday that an issue arose from his High Court judgment in Mr Bailey’s case which was of such exceptional public importance it should be determined by the Supreme Court.

That issue is whether the surrender of a person is prohibited by section 44 of the European Arrest Warrant Act 2003 where the offence for which surrender is sought is committed in this jurisdiction and where the victim is a national of the state requesting extradition (in this case France) which seeks to exercise an extraterritorial jurisdiction to prosecute the offence under its own laws when the DPP has decided not to prosecute the person.

Lawyers for Mr Bailey had argued French extraterritorial jurisdiction is very extensive and the Irish courts should scrutinise it carefully.

Given his decision to certify the point of law, the judge placed a stay on the order for extradition pending the outcome of the Supreme Court appeal and remanded Mr Bailey on bail to tomorrow when he will have to enter a fresh bail bond. When he does so, he will remain on bail pending the outcome of the Supreme Court appeal.

The judge directed that a notice of appeal should be lodged by 4pm tomorrow and also awarded costs of the High Court proceedings to the State against Mr Bailey. A stay on that costs order applies pending the appeal.

Mr Bailey (54), The Prairie, Schull, Co Cork, has denied any involvement in the murder of Ms Toscan du Plantier (39), the French film-maker whose body was discovered near her holiday home in Schull on December 23rd, 1996. He was arrested by investigating gardaí and the DPP found no basis to charge him.

In his High Court ruling last February permitting extradition, Mr Justice Peart found the warrant issued by the French authorities clearly stated its purpose was to “prosecute” Mr Bailey; that it did not state the purpose was “investigation”; and that it indicated the French view that there was sufficient evidence to charge Mr Bailey.

The French procedure requires Mr Bailey to be brought before an examining magistrate and given the opportunity to respond to the evidence before any decision is made about whether to put him on trial or not.

Under the European Arrest Warrant Act 2003, an appeal against an extradition order may only be brought if the High Court certifies the case raises points of law of such exceptional importance the public interest requires those points should be determined by the Supreme Court.

Mr Bailey’s lawyers argued the case raised three such points, while the State argued no point of law arose justifying certification.

Mr Justice Peart rejected as not raising issues of exceptional public importance the two other points raised by Mr Bailey’s lawyers. Those points related to interpretation of certain provisions of the 2003 Act and the Criminal Justice (Terrorist Offences) Act 2005.

One of the points related to interpretation of section 68 of part 8 of the 2005 Act, which limits the scope of an amendment to the 2003 Act relating to categories of European arrest warrants. Mr Bailey claimed that point was relevant to any person whose surrender was sought for an offence in respect of which the DPP here decided not to prosecute.

The third issue related to what protections should be afforded to a person in a position similar to Mr Bailey so as to protect him from repeated attempts at prosecution or criminal investigation in circumstances where the DPP has decided not to prosecute him here.