The Supreme Court allowed Ian Bailey’s appeal against a High Court order for his surrender to France under a European arrest warrant. In a judgment delivered on 1 March 2012, Mr Justice Fennelly concluded that surrender was barred by section 44 and, separately, that section 21A required refusal because no decision had been made to try Bailey in France. The court set aside the High Court order and directed his release from custody.
The warrant was issued in France on 19 February 2010 and endorsed for execution by the High Court on 23 April 2010. France sought Bailey’s surrender for a prosecution concerning the 1996 murder of French citizen Sophie Toscan Du Plantier in or near her home in Schull, County Cork. No one had been charged with the murder. The judgment says the Director of Public Prosecutions had decided on at least two occasions not to prosecute Bailey, concluding there was insufficient evidence to charge him.
On section 44, the Supreme Court rejected the Minister’s argument that the provision did not apply because the alleged offence took place in Ireland. Fennelly J said the section had to be interpreted in light of the relevant European Union Framework Decision. The question was whether Irish law would allow prosecution for the same type of offence committed outside Ireland in corresponding circumstances. Irish law allowed prosecution for murder committed abroad only where the alleged perpetrator was an Irish citizen. Bailey was a UK citizen, so the court held that section 44 prohibited his surrender.
The court also considered section 21A, which requires refusal of surrender if the High Court is satisfied that no decision has been made in the issuing state to charge and try the person. Evidence from French lawyers described the proceedings as still at the investigative stage. The French arrest warrant was accepted as equivalent to a decision to charge, but the investigation had not concluded and no decision had been made to send Bailey for trial. Fennelly J concluded that section 21A therefore independently required refusal.
The judgment records that the appeal also raised whether the DPP’s decision not to prosecute entitled Bailey to object under section 42, and whether Irish authorities had abused process under section 37. Fennelly J agreed with the Chief Justice and O’Donnell J that the section 42 ground did not succeed, and with the Chief Justice that it was unnecessary to decide the section 37 issue.