Justice staff unaware of DPP review for 10 years, Bailey case told

A REVIEW by the DPP’s office criticising the Garda investigation into the murder of French film-maker Sophie Toscan du Plantier only came to the attention of the Department of Justice 10 years after it was completed, the Supreme Court was told yesterday.

The review outlined why the DPP decided not to prosecute Ian Bailey. The contents of that review, provided to senior gardaí in 2001 and to Mr Bailey’s lawyers last November on the advice of the Attorney General, are expected to be addressed by Mr Bailey’s lawyers today in his continuing appeal against a High Court order for his extradition to France in connection with the December 1996 murder.

Yesterday, in reply to a query from Mr Justice John Murray about when exactly the department became aware of the 2001 review, Robert Barron SC, for the Minister for Justice, said he was instructed the department only became aware of it last October.

Another investigation, prompted by allegations made by Mr Bailey’s solicitor Frank Buttimer and carried out by Assistant Garda Commissioner Ray McAndrew in 2007, was given to the department but this did not include the material in the 2001 review.

Mr Bailey’s appeal will enter its third day today when it is expected to conclude with judgment reserved.

The 54-year-old former journalist has always denied any involvement in the murder of 39-year-old Ms Toscan du Plantier whose body was discovered near her holiday home in Schull, Co Cork, on December 23rd, 1996. The French authorities have sought his surrender under a European arrest warrant of February 2010.

In submissions yesterday, Mr Barron argued there was no legal bar to that surrender, as claimed by the defence.

He accepted article 4 of the European Framework Decision (providing for extradition between member states) allows for refusal of surrender of a person to a state intending to exercise an extra-territorial jurisdiction to prosecute in circumstances where the executing state asserts no similar extra-territorial jursdiction.

He disputed arguments this required the court to refuse to surrender Mr Bailey, an English national, to France because France sought to exercise extra-territorial criminal jurisdiction to prosecute in circumstances where Ireland would not assert extra-territorial jurisdiction to prosecute the same offence committed outside its jurisdiction by a non-Irish citizen.

Mr Barron accepted, if full effect had been given in Irish law to the provisions of article 4, there would be a bar to the extradition of Mr Bailey. No such full effect was given, he submitted. The discretion under article 4 to refuse surrender must be seen in the overall context and objects of the framework decision, he argued.

He also argued section 44 of the European Arrest Warrant Act 2003 – enacted here to give effect to the framework decision — does not prohibit Mr Bailey’s surrender and is not applicable to the circumstances of Mr Bailey’s case.

Section 44 provides a person “shall not be surrendered” under the 2003 Act if the offence specified in the European Arrest Warrant seeking their surrender was committed “in a place other than the issuing State” and the “act or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State”.

The interpretation of section 44 is a key issue in the appeal with Mr Bailey’s lawyers insisting it prohibits his extradition 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 Minister denies section 44 applies to the case and denies reciprocity is relevant. Section 44 was not intended to deal with offences committed within this State, Mr Barron submitted.

In further submissions, Mr Barron argued the DPP’s decision not to prosecute Mr Bailey did not prevent his surrender. The Criminal Justice (Terrorist Offences) Act 2005 amended the 2003 Act to allow for surrender of a person even where there was no decision to prosecute here and applied in this case, he argued.

He also rejected arguments surrender was prohibited in the alleged absence of a decision by the French authorities to “try” Mr Bailey.

The French authorities provided a response to that claim yesterday and, to allow for a full translation of that response, that matter will be addressed in court today.

Replying for Mr Bailey, Garrett Simons SC argued surrender could not be granted for the extra-territorial killing here of a French citizen by an English citizen.

Answering Mr Justice Adrian Hardiman, counsel said he was unaware of any other case where Ireland was asked to surrender a person to another country for an offence committed in Ireland or where any other country worldwide was asked to effect a similar surrender.

The appeal continues today before the Chief Justice, Mrs Justice Susan Denham, Mr Justice Murray, Mr Justice Hardiman, Mr Justice Nial Fennelly and Mr Justice Donal O’Donnell.