Bailey's extradition not a legal entitlement of French authorities, Supreme Court told

FRANCE IS not entitled to have Ian Bailey extradited so it may exercise an extra-territorial jurisdiction to prosecute him under its own laws in connection with the murder here of French film-maker Sophie Toscan du Plantier, his lawyers have argued before the Supreme Court.

The five-judge Supreme Court yesterday began hearing the appeal by Mr Bailey against his extradition to France in connection with the murder of Ms Toscan du Plantier.

Mr Bailey (54), a former journalist, was in court yesterday with his partner Jules Thomas for the opening of his appeal, scheduled to run for three days.

The appeal continues today before the court comprising 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.

He has always denied any involvement in the murder of Ms Toscan du Plantier (39) whose body was discovered near her holiday home in Schull, Co Cork, on December 23rd, 1996.

The French authorities have sought his surrender for questioning by an investigating judge and he is appealing against an order for his extradition made last March by the High Court.

Last week, the Supreme Court ruled Mr Bailey was entitled to rely in his appeal on material disclosed to them last November by the Director of Public Prosecutions. The material includes a 2001 review by a solicitor in the DPP’s office which was critical of the conduct of the murder investigation and also outlined the reasons why former DPP Eamonn Barnes decided Mr Bailey should not be prosecuted.

The 44-page review was sent to senior gardaí in 2001 and expressed reservations about the reliability of witness statements which gardaí believed provided enough circumstantial evidence.

In response to a query from Mr Justice Murray yesterday, Robert Barron SC, for the Minister for Justice, said he understood the Department of Justice only became aware last October of the existence of that material.

Outlining Mr Bailey’s appeal, his lawyer Garret Simons SC argued section 44 of the European Arrest Warrant Act 2003 – enacted to give effect to the European Framework Decision providing for extradition between member states – prohibited Mr Bailey’s surrender.

This prohibition arose in circumstances including where the offence was committed outside the issuing state (France), it was seeking to exercise an extra-territorial jurisdiction to prosecute the offence under its own laws and where the DPP had decided not to prosecute, he said.

The High Court appeared to have disregarded the fact the framework decision gives member states an absolute discretion whether or not to extradite in cases where the state seeking extradition asserts extra-territorial criminal jurisdiction, counsel said. Section 44 prevented Mr Bailey’s surrender in circumstances where he is an English citizen, the offence occurred in Ireland, the victim was a French citizen and the necessary reciprocity was not in place between the Irish and French systems.

The key issue was the extra-territorial nature of the offence and article 4 of the decision allowed for refusal of extradition in certain circumstances where the state requesting surrender was seeking to exercise an extra-territorial jurisdiction, he argued. The High Court erred in apparently working on the basis there was some form of presumption in the decision in favour of surrender, he added.

Mr Simons also argued the DPP’s decision that there was no evidence on which to prosecute Mr Bailey provided a further ground to refuse his surrender as sought under the European arrest warrant issued by the French in February 2010. Arising from the DPP’s decision, which appeared to have been made in 1998 and, according to the recently disclosed material, again in 2001, Mr Bailey could not have been surrendered under the law as applied, he said.

He argued the Criminal Justice (Terrorist Offences) Act 2005, which amended the 2003 Act to allow for surrender of a person even where there was no decision to prosecute, could not affect decisions made prior to the 2005 Act not to prosecute Mr Bailey. The 2005 Act could not be retrospectively applied in Mr Bailey’s case, he submitted.

Mr Simons also argued surrender should be refused on grounds the French authorities had not made a decision to “try” Mr Bailey in connection with the murder. After Mr Simons had set out his arguments on those legal issues, the court asked to hear Mr Barron’s response on those points before hearing additional arguments on behalf of Mr Bailey, including submissions based on the newly disclosed material.

Beginning his arguments, Mr Barron argued section 44 of the 2003 Act did not prevent Mr Bailey’s surrender and was not intended to deal with offences committed within this State.