The Supreme Court rejected Ian Bailey’s arguments that two provisions of the European Arrest Warrant Act barred his surrender to France, but agreed that surrender must be refused under section 21A. In a judgment delivered on 1 March 2012, O’Donnell J. also said there was no need for further argument on section 37. His judgment records that the court’s conclusion on section 21A was set out in judgments delivered by his colleagues.
Bailey relied on section 42(c) of the 2003 Act, which had required refusal of surrender where the Director of Public Prosecutions had decided not to prosecute. The DPP had decided against prosecuting him in 1997 and revisited that decision before 2003. Section 42(c) was removed by the Criminal Justice (Terrorist Offences) Act 2005.
Bailey argued that the earlier DPP decision gave him an accrued right protected by section 27 of the Interpretation Act 2005. O’Donnell J. rejected that argument, concluding that the ability to rely on a statutory ground for resisting surrender was not a vested right. He also found that the 2005 legislation showed a contrary intention: the removal of section 42(c) applied immediately, including to warrants already issued but not yet endorsed. He concluded that section 42(c) could not assist Bailey.
The judgment also considered section 44 of the 2003 Act, concerning offences committed outside the issuing state. Bailey argued that Ireland would not exercise jurisdiction on the same basis as France in the case, so the provision required refusal of surrender. O’Donnell J. disagreed. He read section 44 as asking whether Irish law allows prosecution for the offence when committed outside Ireland, rather than requiring identical jurisdictional rules between Ireland and France. Since Ireland allowed extraterritorial prosecution for murder, he concluded that section 44 did not bar surrender.
Those conclusions concern O’Donnell J.’s reasoning on sections 42(c) and 44. The judgment states that the court nevertheless had to refuse surrender under section 21A. It does not set out in this judgment the reasons given by the other judges on section 21A, and it records no ruling on section 37 because further argument was unnecessary.