The ruling highlights the extent of our obligations under EU extradition law, writes CAROL COULTER
THE DECISION of the High Court to order the surrender of Ian Bailey to the French authorities to face prosecution for the murder of Sophie Toscan du Plantier demonstrates many aspects of extradition law most people have been unaware of.
The European Arrest Warrant system was brought into Irish law by an Act in 2003, which was amended in 2005. It provides for a person who is wanted for prosecution (not questioning) in one EU member state to be extradited to the state where he or she is wanted, and also for the extradition of a person to serve a sentence where he or she has already been convicted.
The law, and the framework decision behind it, was intended to ensure a person could not evade justice by fleeing one jurisdiction for another in the EU. This normally applied where the offence was committed in the state seeking the extradition.
There are several unusual aspects to this case, including the fact the suspect, Ian Bailey, did not flee from one jurisdiction to another, the offence concerned was committed in Ireland, and normally a prosecution would only arise under Irish law. The Irish authorities decided not to prosecute Ian Bailey (or anyone) for Toscan du Plantier’s murder.
Because French law allows for the prosecution of a serious offence in France if it is committed abroad against a French citizen, it is legally possible for a person resident outside France to be extradited to face prosecution. Therefore, it was possible for the French state to seek Ian Bailey’s extradition.
The fact the application was successful (subject to any possible Supreme Court appeal) means a person can be prosecuted for an offence in France, or any other EU state with a similar provision, even if the Irish authorities have decided not to prosecute. It makes the arm of European criminal law very long indeed.
The criminal law in other EU jurisdictions differs considerably from Irish criminal law. This is particularly true of the civil law system in most EU member states, and rights which an accused person possesses in Ireland cannot be assumed to exist in other EU states.
The prosecutorial system in many other EU states is also different, and, as in this case, involves a preliminary phase in which an investigating magistrate assesses the evidence and seeks further information from the accused. There can be a long gap between the preliminary phase and the full trial, and the right to bail is not as entrenched in many EU states as it is in Ireland.
We voted to amend our Constitution to allow for the operation of EU law, of which the European Arrest Warrant is part.
All this means many of the issues raised in Ian Bailey’s challenge to his extradition – his concern there was no established decision to prosecute him; the fact the Irish DPP had decided not to prosecute, which he held entitled him to a right not to be surrendered; a breach of fair procedures if he was prosecuted in light of the DPP’s decision; and his apprehension that he would not receive a fair trial – did not outweigh the presumption behind the European Arrest Warrant system that all participating states operate a criminal law system of equal standard.
As Mr Justice Peart said in relation to the decision of the DPP not to prosecute: “The fact that the DPP here took a different view under Irish law must yield to the right of the French authority to have a different view under its own law.” All this means in any future case involving an Irish resident where there is an EU dimension, the person concerned and his or her legal advisers will have to look over their shoulders at the criminal law systems in other EU states when considering their course of action.