Ian Bailey charges: Similar warrant ruled unlawful in 2012

The move by the French authorities to issue a European arrest warrant with a view to having Ian Bailey extradited to France is a logical consequence of their decision to charge him with the killing of film-maker Sophie Toscan du Plantier.

Almost 20 years since her death, it still remains far from clear as to what the outcome of this latest twist in the west Cork story will be.

It is not the first time the French authorities have sought to bring Mr Bailey to their jurisdiction.

In February 2010 the French magistrate then investigating the murder, Judge Patrick Gachon, issued a similar warrant for Mr Bailey which was endorsed by the High Court in Dublin two months later.

Within hours, Mr Bailey was arrested at the home he shares with his partner Jules Thomas at the Prairie, Liscaha, Schull, and taken to Dublin for a High Court hearing which set in train a series of court appearances spread over two years.

In March 2011 High Court judge Mr Justice Michael Peart deemed the warrant to be valid and ordered Mr Bailey's surrender to the French authorities. Lawyers for Mr Bailey lodged an appeal and the matter was heard by the Supreme Court the following year.

Unlawful

In March 2012 the Supreme Court overturned Mr Justice Peart’s ruling, after it found the warrant to be invalid and unlawful. It rescinded Mr Bailey’s surrender to the French authorities.

All five judges – the Chief Justice, Mrs Justice Susan Denham, Mr Justice John Murray, the late Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Donal O'Donnell – gave individual reasons for their decisions.

Several of the judges noted that the case arose in “unique circumstances” and raised “unprecedented” questions of law as they decided to rule on three separate legal issues while adjourning consideration of a fourth issue.

This fourth issue revolved around the argument that extradition would breach Mr Bailey’s constitutional rights and amount to abuse of process, given the delays involved, a decision by the Director of Public Prosecution not to prosecute him, and the contents of a newly disclosed DPP memo on the case.

Lawyers for both the State and for Mr Bailey had accepted that if Mr Bailey won on any of the three issues, the fourth would not have to be addressed, which, Mr Justice Murray noted, would be “a relief” to gardaí given criticism by the DPP of the investigation in his memo.

Unanimous

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

The five judges 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.

Ms Justice Denham said it was clear from the facts – particularly from a document from the French prosecuting authorities – 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 of the European Arrest Warrant Act required that a decision had 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.

Argument

On the second issue, four of the judges (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.

They ruled there was no reciprocity as there was no provision on the Irish statute to prosecute anyone for a murder outside of Ireland – save where the offence is committed by an Irish citizen – unlike French law, under which a person can be prosecuted when the victim is French.

Mr Justice Murray noted France claims extraterritorial jurisdiction against anyone who commits a grave crime against a French citizen anywhere in the world, but under Irish law, murder of an Irish citizen outside of Ireland does not constitute an offence under Irish law.

All five judges dismissed Mr Bailey’s appeal on the third ground – whether he could be prosecuted for an offence in circumstances where the DPP here had decided in 1999 not to prosecute him and had maintained that view despite several reviews.

While the latest French warrant is expected to address the issue of whether the extradition is for the purpose of charge or not, the other ground of refusal by the Supreme Court in 2012 – that of reciprocity – suggests the outcome of the latest extradition request is far from clear.