Supreme Court reserves judgment on Bailey appeal

The Supreme Court has reserved judgment on key legal issues in the appeal by Ian Bailey against his extradition to France in connection with the murder of French film-maker Sophie Toscan du Plantier in 1996.

At the request of the Minister for Justice, and on consent of Mr Bailey, the court, pending its decision on those issues, has adjourned consideration of another ground of the appeal relating to new material, namely a review carried out in 2001 by the Director of Public Prosecutions.

The review which was critical of the Garda investigation into the murder and which set out why DPP's decision not to prosecute Mr Bailey.

The court was told by lawyers for the Minister for Justice that the Garda Commissioner, the Superintendent heading the murder investigation and the force disputed matters in that review, objected to it being admitted into the appeal, and wanted an opportunity to respond to it.

Ms Toscan du Plantier was killed at her holiday home in Schull, west Cork in December 1996.

Earlier today, the five-judge court was provided with a document concerning French criminal procedure compiled on behalf of the French authorities.

Some of the judges remarked the document appeared to indicate the surrender of Mr Bailey was being sought for the purpose of investigation when, it was observed, a person cannot be surrendered for investigation purposes either under the relevant Irish law - Section 21 of the European Arrest Warrant Act 2003 - or under the European Framework Decision on extradition.

In light of that document - the first formal evidence of French criminal procedure put before the Irish courts by the State in the extradition proceedings - Robert Barron SC, for the Minister for Justice, was given time to take instructions.

Mr Barron asked for time to noon but, when the court resumed then, he asked for additional time to 2pm, and said this was "a very, very serious matter".

At 2pm, Mr Barron said it remained the Minister's position that the European arrest warrant seeking Mr Bailey's surrender was for the purpose of "prosecution" and, in those circumstances, the Minister stood over his arguments about the meaning of Section 21.

Section 21 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].

The Minister had argued, following a Supreme Court decision in another case, the Ollsson case, where surrender of a Swedish man was permitted, Mr Bailey's surrender would not breach Section 21.

Mr Barron said, while he had earlier told the court there was no reference to prosecution in the French document, that document did state the arrest warrant issued in relation to Mr Bailey was for the purposes of prosecution.

Garrett Simons SC, for Mr Bailey, argued the Minister's argument was "untenable" and "unstateable" in circumstances where the State had conceded there was no decision to "try" Mr Bailey.

The Ollsson case made clear there must be an intention to prosecute with a view to a trial and that was "fatal" to the Minister's case as the French document indicated the French procedure was still at "stage one".

Having heard both sides, the Chief Justice, Mrs Justice Susan Denham, said the court would reserve its judgment on the legal issues raised to date and the other aspect of the appeal would be adjourned pending that judgment.