The Supreme Court has refused to surrender Ian Bailey to France over the killing of Sophie Toscan Du Plantier, whose body was found near a property she owned in Schull, County Cork, in December 1996. The ruling was delivered on 1 March 2012 by Mr Justice Hardiman in Bailey’s appeal against a High Court order for his surrender and committal pending surrender.
France sought Bailey’s surrender for criminal proceedings concerning an alleged murder in Cork. Bailey, a British citizen long established in County Cork, had not been convicted. The Court considered additional information from a French official stating that, if surrendered, he would enter an investigative stage in which evidence of innocence and guilt would be examined. The investigating judge might later decide whether to indict him; that decision had not been made and might never be made.
The Court held that section 21A of the European Arrest Warrant Act 2003 required refusal where no decision had been made both to charge a person and to try him for the specified offence. It found that the French material showed no decision to try Bailey and rebutted the statutory presumption that such a decision had been made. The Court concluded that section 21A independently required refusal of surrender.
The Court also upheld Bailey’s objection under section 44. The alleged offence was said to have occurred in Ireland, outside France, and the Court applied a hypothetical test: whether Irish law would permit prosecution for the same kind of murder if committed outside Ireland. It concluded that Ireland’s law did not provide for prosecution of a non-Irish citizen for such an extraterritorial murder on the basis used by France. The Court said the absence of reciprocity meant section 44 barred surrender.
The Irish Director of Public Prosecutions had previously decided, after reviewing the evidence, that prosecution of Bailey was not warranted. The Supreme Court noted that decision but did not decide Bailey’s separate arguments under sections 42 or 37. It also did not hear the section 37 arguments, which were to rely in part on newly disclosed materials. The Court’s ruling resolved the appeal on sections 21A and 44 and refused the requested surrender.