A FIVE-JUDGE Supreme Court has reserved judgment on three key legal issues in the appeal by Ian Bailey against his extradition to France in connection with the murder of film-maker Sophie Toscan du Plantier in 1996.
A central issue is whether there is an actual intention by the French authorities to “try” Mr Bailey or whether they are only at an investigating stage.
A document from the French prosecuting authority seen in court yesterday said, if handed over, Mr Bailey would be at the “investigation procedure” stage of the case and the European arrest warrant issued by France for his surrender was “for the purposes of prosecution”.
At the request of Minister for Justice Alan Shatter, and with the consent of Mr Bailey, the court, pending ruling on those issues, adjourned consideration of another ground of the appeal. This contends that surrender would be an abuse of process. It focuses on new material provided to Mr Bailey’s lawyers in November.
The court will only address this if Mr Bailey does not succeed on the other issues.
The new material includes a review by the DPP’s office, in 2001, that criticised the Garda investigation into the murder and set out why former DPP Eamonn Barnes did not prosecute Mr Bailey.
Yesterday, Robert Barron SC, for the Minister for Justice, said the Garda Commissioner, the superintendent heading the investigation and the entire force, disputed matters in that review, objected to it being admitted and wanted to respond to it.
He said facts not included in the review “would lead to different inferences and conclusions being reached” and the Minister objected to the court considering the document without hearing from the Garda.
Mr Justice John Murray said if it proved unnecessary to address the new material it would be “a relief” to the entire Garda not to have to deal with it. The DPP had said this was a “thoroughly flawed” investigation, he said.
Mr Justice Adrian Hardiman said no one had suggested the material amounted to evidence of the matters set out in it.
Martin Giblin SC, for Mr Bailey, said it was now “absolutely clear” his concern about further material to be disclosed had been vindicated and there was more material that could influence the case.
But while Mr Bailey was “not very happy about it”, he would not object to the Supreme Court first determining the three issues.
The first issue concerns whether there is power to grant the extradition order. Mr Bailey claims section 44 of the European Arrest Warrant Act 2003 – which implemented the European Framework Decision on extradition between member states – prohibits surrender because the alleged offence was committed outside French territory and Irish law does not allow prosecution for the same offence when committed outside its territory by a non-Irish citizen.
The second issue concerns whether surrender is prohibited in circumstances where the DPP here decided not to prosecute Mr Bailey. A 2005 law amending the 2003 Act, to allow for surrender of people who the DPP decided not to prosecute, cannot be applied retrospectively to Mr Bailey, it is claimed.
The third issue considers whether there is a decision to “try” Mr Bailey within the meaning of section 21 of the 2003 Act. This says the High Court “shall” refuse to surrender an unconvicted person if it is satisfied a decision has not been made to “charge the person with, and try him for”, that offence in the issuing state (in this case France).
In relation to that third issue, the court was yesterday given a document from the French prosecuting authorities. This is the first formal evidence of French criminal procedure put by the State before the Irish courts in the extradition proceedings.
Mr Giblin said it was a “great pity” it was not produced in the High Court as it would have saved Mr Bailey and his family distress.
Mr Justice Nial Fennelly said the document gave a full account of the French procedure with no apparent statement that a decision had been made to prosecute Mr Bailey.
Mr Barron said this was “a very, very serious matter”. He said it remained the Minister’s position that the European arrest warrant seeking Mr Bailey’s surrender was for the purpose of “prosecution” and the Minister stood over his arguments about the meaning of section 21.
Mr Barron argued on Tuesday, following a Supreme Court decision in another case, the Ollsson case (in which the surrender of a Swedish man was permitted) that Mr Bailey’s surrender would not breach section 21.
Earlier yesterday, Mr Barron said, in light of the French document, he could not rely on Ollsson now in the same way. He said the Minister stood over the previous arguments concerning section 21 and noted the French document stated the EAW for Mr Bailey was for prosecution purposes.
Mr Simons, for Mr Bailey, said 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 it was “fatal” to the Minister’s case that the French document indicated they were still at “stage one”.
The Chief Justice of the Supreme Court, Mrs Justice Susan Denham, sitting with Mr Justice Murray, Mr Justice Hardiman, Mr Justice Fennelly and Mr Justice Donal O’Donnell, said the court would reserve judgment on the three issues.
