The High Court has ordered Ian Bailey’s surrender to France under a European arrest warrant seeking his prosecution for the 1996 murder of Sophie Toscan du Plantier in West Cork. The order followed the court’s rejection of his objections to surrender; it was not a determination of guilt or a decision that he should stand trial in France.
In a judgment delivered on 18 March 2011, Mr Justice Michael Peart said the French warrant sought Bailey’s surrender for prosecution. The French authorities claimed jurisdiction because du Plantier was a French citizen, although the alleged murder took place in Ireland. Bailey, a British citizen resident in West Cork, argued that Irish law did not permit his prosecution here for a murder committed abroad by a non-Irish citizen, so surrender was barred under section 44 of the European Arrest Warrant Act 2003.
The judge rejected that argument. Reading section 44 alongside the rest of the legislation and the EU Framework Decision, he concluded it addressed offences committed in a third country, outside both the issuing and executing states. The alleged offence took place in Ireland, so section 44 did not prohibit surrender.
Bailey also argued that France wanted him only for further investigation, and that no decision had been made to prosecute and try him. His French lawyer’s affidavit described an investigative phase in which an examining judge would hear Bailey before deciding whether to send him for trial. The judge accepted that no final decision to send him to trial could be made until that process was completed. But he found the warrant and French procedure showed a present intention to prosecute, and that the statutory presumption of such a decision had not been rebutted. A later decision not to proceed would not, by itself, mean no prosecution intention existed when the warrant was issued.
The court also rejected reliance on the Director of Public Prosecutions’ decision not to prosecute Bailey in Ireland, which had been reviewed and confirmed. The judge held that the decision did not finally dispose of the case by operation of law: the DPP could reopen it if new evidence emerged. He further rejected the argument that surrender would be unfair because of the DPP decision, the delay, Bailey’s cooperation with Gardaí, a witness statement said to have been retracted, and the possibility that silence could carry adverse inferences in France. He found no cogent and compelling evidence of a real risk of an unfair trial.
The court concluded that no identified statutory or Framework Decision ground required refusal and ordered surrender to the French authorities. The judgment does not report the outcome of any subsequent French proceedings.