THE SUPREME Court’s refusal to send Ian Bailey to France, accused of the murder of Sophie Toscan du Plantier, has not only clarified the law on the European arrest warrant, it has also raised serious questions about the conduct of officers of the State. These questions are raised by material that emerged very late in the case, after a decision from the High Court, and when the Supreme Court appeal was under way.
This material came from the office of the Director of Public Prosecutions and included an analysis of the Garda investigation and the evidence against Mr Bailey, leading to the decision not to prosecute him. This was described by Mr Justice Murray as “dramatic and shocking in its content”. It entailed “a thoroughly flawed and prejudiced Garda investigation culminating in a grossly improper attempt to achieve or even force a prosecutorial decision which accorded with that prejudice.”
In his judgment he said that the conduct of the police investigation, if the account in the DPP documents is true – and the Garda Síochána has indicated it would have disputed some of the claims in the document – “strikes a blow against the fundamentals of the rule of law upon which this State is founded.” It is unprecedented that DPP documents relating to the conduct of a criminal investigation are released to an accused person (in this case accused by the French state), and this could well have implications for the conduct of future investigations.
Mr Bailey has indicated he will sue the State and will use this material in his case. He has already lodged a complaint against the Garda Síochána with the Garda Síochána Ombudsman Commission. Meanwhile, the ordeal of the family of Ms Toscan du Plantier continues. Their hopes for a successful prosecution, bringing to an end the nightmare that began with the murder of their daughter, have been set back, even if a prosecution proceeds in France in Mr Baileys absence. Such a prosecution, if it takes place, will be based, according to the DPP documents, on a Garda investigation that was “thoroughly flawed and prejudiced” and its chances of success cannot but be affected by the revelations made to the Supreme Court.
All this overshadows the fact that the case has brought clarity to two issues. These are: given the difficulty of reconciling the common and civil law traditions, at what stage in civil law criminal proceedings it is permissible to extradite someone from Ireland? And is it permissible under Irish law to send a person to face trial in another country if the crime was not committed there? The Supreme Court has made it clear that if a decision has not been made to try someone, but they are sought to answer questions in court at a preliminary stage, extradition is not permissible.
It also decided that in the unusual circumstances where another country – in this case, France – sought to extradite a person for a crime committed in Ireland, this would only be permissible if there was a corresponding provision in Irish law. This does not exist, so such an extradition was not allowed.