LEGAL OPINION:In his opinion piece on this page on October 1st, Eugene Regan presents the argument that Ireland is out of step with other EU member states in the implementation of the European Arrest Warrant (EAW).
A focus of his criticism is Ireland’s refusal to grant surrender where the requesting state wishes to subject the wanted person to investigation, as distinct from charging and putting him on trial.
At the core of his argument is the notion that Ireland should operate the EAW on the basis of mutual acceptance of the criminal justice standards applicable in the other EU member states, all signatories of the European Convention on Human Rights.
Superficially, there appears to be substance to Regan’s criticism. Closer examination, however, reveals very sound reasons why Ireland should be commended for its measured approach to the implementation of this novel instrument.
The EAW was introduced in a panic to the events of 9/11. Critically, it was the first EU instrument to apply the single European market principle of mutual recognition to national criminal justice decisions.
This approach’s flaw is that a criminal justice decision cannot be equated with a market good such as a barrel of beer. Beer is the same product and will function in the same manner irrespective of where it is made. It will look the same, taste the same, and have the same effect when moved to another state.
A criminal justice decision, by contrast, is a pure creation of the legal system of the state in which it was made. It is designed to operate in accordance with the constitutional, legal, democratic, social and cultural norms of that state, and as an integral part of the criminal justice system of that state.
Wholly new substance
If it is lifted from its home environment and transplanted to another legal system it acquires a wholly new substance. As such, it will react unpredictably in its new alien environment unless there is already a high degree of integration and harmonisation between the two systems.
A failure to accommodate this reality can visit serious injustice on those affected. Unlike the barrel of beer, criminal justice decisions have severe and lasting effects on the fundamental human rights of the individual, including liberty, privacy, family and fair procedures; especially where it involves shipping an accused off to another state for prosecution through a foreign language and unfamiliar procedure. Critically, we have yet to develop the levels of criminal justice integration and harmonisation necessary for Regan’s concept of the EAW to function smoothly and fairly.
Nowhere is this illustrated more vividly than in the facts of the Ian Bailey case which Regan actually cites as an illustration of an alleged Irish failure fully to embrace EAW requirements.
The Bailey case presents the bizarre spectacle of one member state (France) seeking to use the EAW and associated processes to pursue a murder investigation and trail in France where the suspect, victim and murder were all based in Ireland and, critically, where the Irish DPP had twice decided on foot of an extensive Garda investigation that there was insufficient evidence to prefer charges.
It would be deeply worrying, indeed, if the EAW could be used in such circumstances to trample over a country’s sovereign authority to deal with its domestic crime in accordance with the norms and requirements of its own criminal justice system.
Should Bailey have been surrendered in these circumstances he would have been exposed to repetitive criminal proceedings in two separate states for many years in respect of the same offence.
Erratic hybrid
He would also have been exposed to a situation in which the evidential fruits of the relatively unregulated Irish police investigation would be combined with a French trial process lacking in the stricter Irish admissibility rules. In other words he would be faced with an erratic hybrid criminal process which maximises the advantages for the prosecution and minimises the protections of the accused.
Seen in this light, Ireland should be commended for confining the EAW to situations where the requesting state wishes to put the defendant on trial as distinct from investigation.
The difference between Irish and continental criminal procedures are still such that arbitrary and extensive mixing of them generates an unacceptably high risk of unfairness to the accused, even where the individual states in question are parties to the ECHR.
Dermot Walsh is professor of law at the University of Limerick