The High Court has refused a French request to surrender Ian Bailey to serve a 25-year sentence imposed in France in 2019 for the murder of Sophie Toscan du Plantier. The ruling concerned surrender under a European arrest warrant, not Bailey’s guilt or innocence.
Mr Justice Paul Burns found that surrender was barred by section 44 of the European Arrest Warrant Act 2003. He held that a 2019 change to Irish law, extending extraterritorial jurisdiction for murder to people ordinarily resident in Ireland, did not create the reciprocity required by section 44. France’s jurisdiction in the case rested on the victim’s French nationality; Ireland’s rested on the alleged offender’s Irish nationality or ordinary residence. The court concluded that these were different bases for exercising jurisdiction.
The judge said he would have preferred the reasoning of a dissenting Supreme Court judgment that interpreted the relevant rule more simply. But he considered himself bound by the Supreme Court majority’s interpretation in an earlier case and refused surrender on that basis.
He also held that Bailey had an accrued right arising from earlier judicial decisions refusing surrender, including a Supreme Court ruling and a High Court finding that a later application was an abuse of process. In the judge’s view, the 2019 legislation did not show that the Oireachtas intended to remove the benefit of those decisions. He found no need to decide whether the current application itself was an abuse of process. He said that, without the earlier High Court decision, he would not regard the current application as abusive.
The court rejected Bailey’s separate argument that surrender would breach his rights under the European Convention on Human Rights or the Constitution. The judge said the material submitted about the French trial did not establish a fundamental defect in the French justice system or a real risk that Bailey’s rights would be violated. He said the matters raised could be pursued in France on appeal or at a rehearing. The court also found that delay and Bailey’s personal and family circumstances did not meet the threshold for refusing surrender under section 37.
The judgment recorded that the French trial and conviction took place in Bailey’s absence, with the warrant stating that he would be informed after surrender of a right to seek a retrial or appeal. The court concluded that the requirements relating to trial in absence were met. It also declined to seek additional information from France or refer a question to the Court of Justice of the European Union. The order refusing surrender rested on section 44 and the accrued-right finding; the court did not determine the murder allegation.