ANALYSIS:WHEN THE European arrest warrant came into force in Ireland in 2003 it is unlikely anyone expected it to mean that a person living in Ireland could be brought to a country in which he had never set foot in order to face trial for a crime in Ireland where the Irish authorities had declined to prosecute him for lack of sufficient evidence.
Yet this is what was proposed when a judge in France issued a European arrest warrant for Ian Bailey, to face trial for the murder 13 years earlier of a French citizen, Sophie Toscan du Plantier, in west Cork.
Under French law the French courts assert the right to try anybody, anywhere, who murders or commits a serious crime against a French citizen. No such law exists in Ireland or most other member states.
Under the European arrest warrant system it fell to the Irish Minister for Justice to take charge of seeking Mr Bailey’s surrender in the High Court.
The European warrant replaced the previous system for extraditing those sought to face criminal charges in other countries, and was intended to provide for a streamlined system within the EU.
Because the EU member states have different legal systems, with major differences existing between the civil and common law traditions, the process of finding a uniform law to suit them all was always going to be difficult, and the project leading to the European arrest warrant was a protracted one. However, it received a major impetus with the events of September 11th, 2001, and the framework decision that underlies the European warrant was then adopted within months.
This provides, in essence, for a presumption of good faith and fair procedures in all the legal systems in the EU, so that a request for the surrender of a person will be acceded to if it meets certain basic criteria.
These include that the offence concerned is also an ffence in the requested country and that the person is being sought for prosecution, not investigation, for that crime.
Separate proceedings exist where a person has been convicted and has fled to avoid facing his or her sentence.
But, as the Bailey case shows, the existence of the European arrest warrant does not resolve the problem that major differences exist between the legal systems of the different EU countries. One of these is that in many civil law countries, judges rather than a director of public prosecutions take charge of the decision to prosecute. Thus the authorities in such a country may seek a person’s surrender to face a judge, not for a trial, but as part of the investigative process which may or may not lead to a prosecution.
This issue was teased out in a case called “Olssen”, where the Swedish authorities sought Thomas Olssen, a Swedish citizen living in Ireland, to face trial for robbery. In the Supreme Court Mr Justice O’Donnell said that, provided there was an intention to try Olssen for the crime, it was permissible to send him to face a court still in the investigative phase of the proceedings, as this was an essential prerequisite to the prosecution. Olssen was later acquitted in Sweden.
The Supreme Court distinguished the facts in the Bailey case from those in Olssen, largely because the French authorities themselves submitted a document in which they stated that Mr Bailey would initially face investigative proceedings, not a prosecution, if and when he was sent to France.
This might result in a decision not to prosecute him at all, according to the document.
It now remains to be seen what impact this decision will have on other cases when surrender is sought to a civil law country where the first phase of the legal proceedings is investigative.