The Supreme Court allowed Ian Bailey’s appeal against an order to surrender him to France, ruling that surrender was barred under sections 44 and 21A of the European Arrest Warrant Act. The judgment, delivered by Chief Justice Denham on 1 March 2012, dealt with three legal issues. The Court did not proceed to hear the appeal’s remaining issues.
France sought Bailey’s surrender to face prosecution over the murder of Sophie Toscan du Plantier in West Cork in December 1996. The High Court had ordered surrender in March 2011. The judgment said the Director of Public Prosecutions had decided not to prosecute Bailey in Ireland and had reaffirmed that decision on later reviews.
On section 44, the Supreme Court found the alleged offence took place outside France, the issuing state. It held that the section’s second condition was also met: Irish law did not permit prosecution in the reciprocal circumstances considered by the Court. The judgment said Ireland could not seek the surrender of a British citizen from France for an alleged murder committed there. The Court therefore allowed the appeal on this ground, rejecting the High Court’s interpretation that section 44 applied only to offences committed in a third country.
The Court rejected Bailey’s separate argument under an earlier version of section 42. That version had barred surrender where the DPP decided not to prosecute, but the provision was removed in a 2005 amendment. The Supreme Court held that Bailey had not acquired a vested right under the repealed provision that prevented surrender.
Section 21A required the Court to refuse surrender if it was satisfied no decision had been made in France to charge Bailey and try him for the offence. The judgment distinguished a decision equivalent to charging him from a decision to try him. Based on the documents before it, the Court found the French process remained at the investigation stage and no decision to try him had been made. It allowed the appeal on this ground too.
The Court had adjourned the fourth issue and a related motion concerning new evidence. Having allowed the appeal on two grounds, it said there was no need to consider the remaining issue. The judgment therefore resolved the surrender appeal on the legal grounds it addressed; it did not determine the adjourned matters.