Court reserves judgment on Bailey extradition appeal

THE HIGH Court has reserved judgment on whether to allow journalist Ian Bailey appeal to the Supreme Court to prevent his extradition to France in connection with the killing of French filmmaker Sophie Toscan du Plantier in Co Cork some 14 years ago.

Mr Justice Michael Peart will rule on April 13th whether to certify the case for appeal and Mr Bailey remains on bail until then.

Under the European Arrest Warrant Act 2003 (the 2003 Act), an appeal against an extradition order may only be brought if the High Court deems that 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 was in court yesterday when his lawyers argued that his case raised three such points of law. Those points relate to interpretation of provisions of the 2003 Act, the Criminal Justice (Terrorist Offences) Act 2005 (the 2005 Act) and the European Framework Decision on extradition.

The first point asks whether the prohibition on surrender set out in section 44 of the 2003 Act relates only to cases where the offence for which surrender is sought is committed both outside the territory of the State seeking extradition and the State from which extradition is sought.

The second point relates 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 claims this point is relevant to any person whose surrender is sought for an offence in respect of which the DPP here decided not to prosecute and it is in the public interest the Supreme Court should decide the effect of decisions not to prosecute.

The third point argues, irrespective of whether or not Mr Bailey receives a fair trial in France, his proposed surrender in the particular circumstances of his case amounts to an abuse of process.

Those circumstances include that the alleged offence involved was committed in Ireland, the Irish authorities had decided not to prosecute following a police investigation and France was seeking surrender of Mr Bailey for the same offence on the same evidence that was before the DPP.

Martin Giblin SC, for Mr Bailey, argued the issues raised potentially apply to a wide class of cases and could affect any Irish citizen who might, for example, find themselves involved in incidents where French citizens were killed or injured in road traffic accidents or in incidents arising from “Thierry Henry” type behaviour at football matches.

The Irish courts should reflect on the nature of the obligation set out in the framework decision to treat other European jurisdictions with respect, he urged. The involvement of French intelligence agents in the blowing up of the Greenpeace ship, the Rainbow Warrior, in New Zealand and the conduct of France in Africa and other areas raised issues as to whether there could be confidence in the French system, he said.

Mr Giblin said he was himself involved in a case in which three Irish citizens arrested in France in 1985 and later released without charge had still not been treated fairly by the French authorities. There was an issue about a duty to act promptly in such cases, he said.

He argued the French extraterritorial jurisdiction was very extensive and the Irish courts should scrutinise it carefully as “everyone is in the firing line”.

The right to silence was also, a “very different creature” in France than in Ireland. Mr Giblin also said there was “dirty linen” arising from the conduct of the Garda investigation into the killing of Ms Toscan Du Plantier that the French legal system would be unable to address.

Robert Barron SC, for the State, said the High Court ruling in Mr Bailey’s case arose in circumstances very unlikely to recur as they involved two persons who were not Irish citizens – Mr Bailey, a UK national, and Ms Toscan du Plantier, a French citizen.

The section 44 point raised was specific to this case and Mr Bailey had failed to show the ruling raised any points of law of public importance, counsel said. What had been mounted instead was “an attack” on the French Republic, the system of European arrest warrants and the framework decision itself.

Mr Bailey (53), of The Prairie, Schull, Co Cork, has always denied any involvement in the murder of Ms Toscan du Plantier, who was aged 39 when her 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.