Five judges grant Bailey's appeal against extradition

IAN BAILEY walked free from the Supreme Court yesterday after the five judges unanimously granted his appeal against his extradition to France in connection with the murder of French film-maker Sophie Toscan du Plantier in west Cork in 1996.

Mr Bailey (53), a Manchester-born former journalist and law graduate who has lived in Ireland for many years and always denied involvement in the murder, said he was “thrilled” and “relieved” at the outcome.

Given the nature of newly disclosed material critical of the Garda investigation into the murder, particularly material alleging a senior garda or gardaí tried to put pressure on the State Solicitor for West Cork to procure a prosecution of Mr Bailey, his lawyer, Martin Giblin SC, indicated there may be other proceedings brought.

Mr Giblin, with Garrett Simons SC, also secured costs against the State of the High Court and Supreme Court extradition proceedings, likely to exceed several million euro and, at his request, was given liberty to apply for costs at the highest level.

All five judges – the Chief Justice, Mrs Justice Susan Denham, Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Donal O’Donnell – gave separate judgments allowing the appeal, with several noting it arose in “unique circumstances” and raised “unprecedented” questions of law.

The court had to rule on three legal issues but, at the request of the State and with “reluctant” consent of Mr Bailey, it had adjourned consideration of a fourth ground pending its decision on the other three. The fourth ground was that extradition would breach Mr Bailey’s constitutional rights and amount to abuse of process given the delays involved, the DPP’s decision not to prosecute him, and the contents of the newly disclosed material.

Both sides had accepted, if Mr Bailey won on any of the three issues, the fourth would not have to be addressed, a factor which, Mr Justice Murray previously noted, would be “a relief” to gardaí.

Yesterday, 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 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 (EAW) Act, 2003 – which implemented the European framework decision on extradition.

Ms Justice Denham said it was clear from the facts – particularly from a document from the French prosecuting authorities provided to the courts here for the first time only in January during the appeal hearing – 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 requires that a decision has 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.

Four of the judges, with 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 and Irish law does not allow prosecution for the same offence when committed outside its territory by a non-Irish citizen.

Mr Justice Fennelly said section 44 prevented Mr Bailey’s surrender because (1) the offence was committed outside France, which had issued the extradition warrant; (2) murder committed outside Ireland is not an offence under Irish law unless committed by an Irish citizen; (3) under Irish law, a person who is not an Irish citizen cannot be prosecuted for a murder outside Ireland.

Mr Justice Murray noted France claims extra-territorial jurisdiction against anyone who commits a grave crime against a French citizen anywhere in the world. This contrasted with Ireland, which only claims extra-territorial jurisdiction in relation to crimes of murder committed by an Irish citizen. Murder of an Irish citizen in another country does not constitute an offence under Irish law.

Mr Justice Hardiman noted several “opacities” in the 2010 French extradition warrant, including absence of information as to why and on what basis an extra-territorial jurisdiction was being exercised and how the French 10-year statute of limitation period for prosecution of such offences was said to be suspended. Those omissions were “scarcely due to ignorance of French law or of the EAW procedure”.

The French request also failed to address why forcible delivery of Mr Bailey to France was being sought when the Irish authorities had decided the evidence did not warrant his prosecution, he added.

While it was “more than doubtful” France would deliver a person to Ireland if the situation was reversed, the Irish State said that was of “no relevance”, he said. There appeared to be no similar case anywhere to this and the French request for forcible delivery was also made some 13 years after the crime was allegedly committed and after the Irish DPP had decided, following a detailed analysis of the case, the evidence did not warrant a prosecution.

The judge also referred to “disturbing cases” where Ireland will forcibly extradite its citizens and residents to countries which, in similar circumstances, would not surrender their citizens to Ireland.

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 decided in 1999 not to prosecute him and maintained that view despite several reviews.