The Supreme Court allowed Ian Bailey’s appeal against a High Court order for his surrender to France, where he was sought for prosecution over the alleged murder of Sophie Toscan du Plantier. In this judgment, delivered by Murray J on 1 March 2012, the Court concluded that the surrender application must be dismissed under section 21A of the European Arrest Warrant Act 2003, as amended. Murray J also agreed that section 44 barred surrender.
The French warrant sought Bailey for a criminal prosecution. The Court was satisfied that the French investigating judge had decided there was sufficient evidence to charge him with murder. Bailey had not yet been brought before the French court or formally charged, because he was outside its jurisdiction.
The dispute under section 21A was whether a decision had also been made to try him. The French prosecutor told the Court that the investigation phase was incomplete and that the evidence supporting the charge or exonerating Bailey was not complete. Although the investigation could lead to a trial, the investigating judge could also decide that the prosecution should go no further. Murray J found that no express or implied decision to try Bailey had been made. Section 21A therefore required refusal of surrender.
The judgment also addressed Bailey’s argument that section 44 applied because the alleged offence took place outside France and, by virtue of being committed outside Ireland, did not constitute an offence under Irish law. Murray J agreed with Fennelly J and the Chief Justice that section 44 applied and barred surrender. He agreed with the Chief Justice that the earlier version of section 42, which barred surrender after a decision by the Director of Public Prosecutions not to prosecute, did not apply to this surrender application, made after the provision was removed in 2005.
Bailey had also raised claims under section 37, including allegations concerning delay and the Garda investigation. The Court did not decide those claims. Murray J said resolving disputed facts would require evidence and potentially a trial in the High Court; because the appeal succeeded on other grounds, he considered it unnecessary and inappropriate to remit those issues.
The Supreme Court’s order allowed the appeal and dismissed the Minister’s application for surrender. The judgment concerned the legality of surrender, not whether Bailey committed the alleged murder.