Min for Justice v Bailey

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 18 March 2011
• Neutral Citation: [2011] IEHC 177
• Court: High Court
• Date: 18 March 2011

[2011] IEHC 177

THE HIGH COURT

Record Number: No. 144 Ext./2010

Min for Justice v Bailey

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Ian Bailey

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

CRIMINAL CODE OF THE FRENCH REPUBLIC ART 113.7

EUROPEAN ARREST WARRANT ACT 2003 S44

EUROPEAN ARREST WARRANT ACT 2003 S42(C)

OFFENCES AGAINST THE PERSON ACT 1861 S9

OFFENCES AGAINST THE PERSON ACT 1861 (SECTION 9) ADAPTATION ORDER 1973 SI 356/1973 ART 3

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4.7(B)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4.7

MIN FOR JUSTICE v AAMOND UNREP PEART 24.11.2006 2006/39/8277 2006 IEHC 382

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 (PART II) (NO 23) ORDER 1989 SI 9/1989

EXTRADITION ACT 1965 S8(5)

EUROPEAN CONVENTION ON EXTRADITION ART 7.2

CRIMINAL PROCEEDINGS AGAINST PUPINO 2005 ECR I-5285 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4.7(A)

EUROPEAN ARREST WARRANT ACT 2003 S42

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S83

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.1

EUROPEAN ARREST WARRANT ACT 2003 S10

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 1.1

EUROPEAN ARREST WARRANT ACT 2003 S21A(2)

CODE OF CRIMINAL PROCEDURE OF THE FRENCH REPUBLIC ART 131

MIN FOR JUSTICE v STUINA UNREP PEART 20.6.2007 2007/41/8532 2007 IEHC 220

MIN FOR JUSTICE v BALCIUNAS 2007 1 ILRM 516 2007/40/8271 2007 IEHC 34

MIN FOR JUSTICE v OSTROVSKIJ UNREP PEART 26.6.2006 2006/40/8512 2006 IEHC 242

MIN FOR JUSTICE v MCARDLE 2005 4 IR 260 2006 1 ILRM 263 2005/38/7955 2005 IESC 76

OLSSON v MIN FOR JUSTICE UNREP SUPREME 13.1.2011 2011 IESC 1

ISMAIL, IN RE 1999 1 AC 320 1998 3 WLR 495 1998 3 AER 1007

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) RECITAL 6

CODE OF CRIMINAL PROCEDURE OF THE FRENCH REPUBLIC ART 80.1

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 PART VIII

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S68

INTERPRETATION ACT 2005 S27

MAGEE v CULLIGAN 1992 1 IR 223 1992 ILRM 186 1991/13/3166

AG v ABIMBOLA 2008 2 IR 302

MIN FOR JUSTICE v TOBIN UNREP PEART 11.2.2011 2011 IEHC 72

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 4.3

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 3.2

EUROPEAN ARREST WARRANT ACT 2003 S37

EVISTON v DPP 2002 3 IR 260

CONVENTION IMPLEMENTING THE SCHENGEN AGREEMENT ART 54

CRIMINAL PROCEEDINGS AGAINST GOZUTOK & BRUGGE 2003 ECR I-1345 2003 2 CMLR 2

CRIMINAL PROCEEDINGS AGAINST MIRAGLIA 2005 ECR I-2009 2005 2 CMLR 6

CODE OF CRIMINAL PROCEDURE OF THE KINGDOM OF THE NETHERLANDS ART 225

CODE OF CRIMINAL PROCEDURE OF THE KINGDOM OF THE NETHERLANDS ART 552(1)

CODE OF CRIMINAL PROCEDURE OF THE KINGDOM OF THE NETHERLANDS ART 255(1)

EUROPEAN ARREST WARRANT ACT 2003 S4A

MIN FOR JUSTICE v STAPLETON 2008 1 IR 669 2008 1 ILRM 267 2007/41/8499 2007 IESC 30

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

Abstract:

Criminal law - Constitutional law - European arrest warrant - High profile murder - Fairness - Risk of unfair trial - Objection to surrender - Extra-territoriality - Delay - Decision not to procedure - Mutual trust - European arrest warrant Act, 2003, as amended

Facts: The surrender of the respondent was sought by a judicial authority in France on foot of a European arrest warrant issued there in 2010 for a high-profile murder of a French citizen in Ireland in 1996. It was submitted by way of objection that the offence had taken place outside of the jurisdiction and that extra-territoriality precluded surrender, pursuant to s. 44 of the European arrest warrant Act 2003, as amended, that the decision by the Irish public prosecutor not to prosecute the respondent made surrender unfair, that there was extensive delay in proceeding with the surrender of the respondent and that there was a real risk that upon surrender the respondent would be unable to receive a fair trial. The circumstances were cumulatively alleged to amount to an abuse of process. The applicant contended that the principle of mutual trust underpinning the arrangements had to be considered by the Court.

Held by Peart J. that there was nothing expressly in the Act of 2003 to preclude surrender by reason of the extra-territoriality objection. No doubt that the respondent had been deprived of a point of objection through the removal of s. 42(C) of the Act of 2003, as amended. The fact that an application for extradition pursuant to the previous system in place might have been unsuccessful was not now relevant. The Court was not satisfied that the evidence adduced demonstrated an egregiously unfair procedure to establish a real risk of an unfair trial should the juge d'instruction decide that the respondent should stand trial. The Court had to presume that the rights of accused persons under French law were protected to an appropriate standard, which had not been displaced by the evidence on the application.

Reporter: E.F.

1 Mr Justice Michael Peart delivered on the 18th day of March 2011:

2 The surrender of the respondent is sought by a judicial authority in France on foot of a European arrest warrant which issued there on the 19 ^th February 2010. That warrant was transmitted to the Central Authority here, following which on the 23 ^rd April 2010, it was endorsed for execution by the High Court. On that date also, the respondent was arrested. On the following day he was brought before the High Court as required by section 13 of the European Arrest Warrant Act, 2003 as amended ("the Act of 2003"), and has been on bail since that date pending the completion of this application.

3 No issue arises in relation to the respondent's identity and I am satisfied that the respondent is the person in respect of whom this warrant has been issued.

4 The warrant states that surrender is sought for the purposes of prosecuting the respondent on a charge of murdering Sophie Toscan du Plantier, a French citizen, on the night of 22 ^nd/23 ^rd December 1996 in West Cork.

5 Minimum gravity is satisfied by reason of the length of sentence which such an offence attracts upon conviction in the issuing state.

6 An unusual aspect of this case is that the murder in question occurred in this State and not in France. However, the victim of the murder was a citizen of France, and under the laws of France the French courts have jurisdiction to prosecute and put on trial an accused in relation to the murder of a French citizen even where it occurs outside France. In that regard, Article 113.7 of the Penal Code provides:

"French criminal law is applicable to any felony as well as to any misdemeanour punished by imprisonment, committed by a French or foreign national outside the territory of the French Republic, where the victim is a French national at the time the offence took place."

7 This jurisdiction is exercised on the basis of what is known as "the passive personality principle" which is one of the five bases recognised under customary international law whereby a state may exercise an extra-territorial jurisdiction, where the victim of a crime is a national of that state.

8 An issue is raised against surrender by virtue of this unusual feature under section 44 of the Act of 2003, and I will come to that.

9 Another unusual feature of this case is that the respondent was questioned by An Garda Siochana here following the death of Sophie Toscan du Plantier, as were a considerable number of other persons. A file was sent to the Director of Public Prosecutions and a decision has been made that the respondent will not be prosecuted on any charge relating to her death. A letter dated 5 ^th July 2010 from the DPP to the respondent's solicitor, Frank Buttimer, confirms this, and further states that the file has been reviewed on a number of occasions since that decision was made, and most recently in 2007, and the DPP again confirms that "on all occasions the original decision not to prosecute [the respondent] was confirmed". In accordance with the DPP's general policy no reasons for this decision are given, but it is stated in this letter that it was in accordance with the Director's Guidelines for prosecutors available on the DPP website. I mention this feature of the case at this stage as an issue arises in relation to this decision in the context of section 42 (c) of the Act of 2003 as originally enacted, and as to whether the amendment to that section in 2005 which removed paragraph (c) thereof is applicable to this case.

10 I will return to that issue in due course.

The Points of Objection:

1. Section 44 - extra-territoriality:

11 The respondent, who, though resident in West Cork for many years, is a citizen of the United Kingdom, submits that surrender is prohibited under the provisions of section 44 of the Act of 2003, since the offence was committed outside the issuing state (France), and the law of the executing state (Ireland) does not permit the prosecution in the State of an offence of murder committed outside the State where the accused person is other than an Irish citizen. As provided for in section 9 of the Offences Against the Person Act, 1861, as amended, only an Irish citizen is amenable to such a charge in this State.

12 The section stands to be interpreted...