The High Court refused the Minister for Justice and Equality’s application to surrender Ian Bailey to France under a second European Arrest Warrant seeking his prosecution for the alleged 1996 murder of Sophie Toscan du Plantier in Cork.
Mr Justice Hunt held that a 2012 Supreme Court ruling on the application of section 44 of the European Arrest Warrant Act 2003 remained binding between the parties. The High Court found that the second warrant had to be assessed in its own right, but that the Minister could not relitigate the extra-territoriality issue decided by the Supreme Court where the relevant facts and law had not materially changed.
The judge also refused to refer questions to the Court of Justice of the European Union. He said the case turned on the binding effect of the Supreme Court’s interpretation of domestic law, and that a CJEU reference was neither necessary nor appropriate for deciding that issue.
Separately, the court found that the surrender proceedings amounted to an abuse of process. It cited the unexplained delay of more than four years between the 2012 Supreme Court decision and the issue of the second warrant, the history of the earlier litigation, and the fact that Irish prosecuting authorities had concluded there was no basis to charge or try Mr Bailey. The judgment said the French authorities had not engaged with those circumstances in the warrant or surrender application.
In an addendum approved on 31 July 2017, Hunt clarified that the Minister was obliged to bring the warrant to the High Court for endorsement and execution. That step was distinct from the later hearing on surrender. At the surrender hearing, the Minister had options, including supporting surrender, taking a neutral position or indicating that surrender might not be appropriate. The judge said the Minister’s active advocacy of surrender was voluntary and a minor contributor to the abuse finding; he expressly said the finding did not imply bad faith.
The court also held that the Supreme Court’s ruling bound the High Court under precedent. Surrender was therefore refused on three grounds: issue estoppel, abuse of process in the particular circumstances, and the binding effect of precedent. The judge limited the ruling to matters expressly addressed and granted each side liberty to apply concerning any residual issues if the Supreme Court later changed direction on section 44.