A High Court judge has clarified his criticism of the former minister for justice Frances Fitzgerald, in relation to the recent effort to extradite Ian Bailey to France.
Mr Justice Tony Hunt, in an addendum to his ruling of July 24th, said he wanted to clarify the basis, extent and meaning of his "abuse of process" finding.
He said the finding was not directed at the decision of the then minister to apply to the court for the endorsement of the European Arrest Warrant received from France. He said he fully agreed that the receipt of the warrant “obliges” the minister to take such a step.
The matter of abuse of process arose rather in the later stage in the process, when the court had to decide whether Mr Bailey should be “surrendered” on the basis of the executed warrant.
At that stage, the judge said, there was nothing in law to oblige the minister to take a particular stance in relation to whether the person should be handed over.
In the Bailey case, he said, “the minister positively advocated a complex and protracted course of action designed to remove the obstacle” of a previous Supreme Court decision in Mr Bailey’s favour, “with the ultimate objective of securing the involuntary rendition of Mr Bailey to the authorities in France”.
The exercise of this prerogative was “a matter of choice, not of compulsion, and a full range of options were available to her in this respect”.
Not in bad faith
The judge said he wanted to emphasise that his abuse of process finding did not imply that the minister acted in bad faith.
The active advocacy of the surrender of Mr Bailey was no more than a minor contributor to the finding of abuse of process, he said. The finding rested in large part on the activities of the French authorities, the history of the case, the approach of an earlier minister to a previous appeal, and delay.
In a response at the time of his finding, Mr Bailey’s solicitor, Frank Buttimer, criticised the effort to extradite his client given the rejection of an earlier effort by the Supreme Court. The department pointed out that it was obliged to seek to have the warrant endorsed.
The French authorities want to try Mr Bailey for the involuntary manslaughter of French citizen Sophie Toscan du Plantier, more than 20 years ago, in Co Cork. Mr Bailey has always denied any involvement with the killing.
Mr Justice Hunt said the minister’s decision to “actively canvass the forcible rendition of Mr Bailey” was based on a view as to the circumstances and history of the case that was “excessively narrow and legally unsound”.
