Minister for Justice and Equality v Bailey

• Jurisdiction: Ireland
• Judge: Mr. Justice Hunt
• Judgment Date: 24 July 2017
• Neutral Citation: [2017] IEHC 482
• Court: High Court
• Docket Number: 2017 No. 46 EXT
• Date: 24 July 2017

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

IAN BAILEY

RESPONDENT

[2017] IEHC 482

Hunt J.

2017 No. 46 EXT

THE HIGH COURT

Extradition – S. 44 of the European Arrest Warrant Act 2003 – Murder – Execution of first warrant for criminal prosecution – Refusal to surrender – Execution of second warrant – Res judicata – Re-litigation of same issue – Issue estoppel – Extra-territoriality

Facts: The surrender of the respondent was sought by the requesting state on foot of the execution of the second European Arrest Warrant (‘EAW’). The surrender of the respondent had earlier been refused by the Supreme Court on ground of jurisdictional bar. The issue arose as to whether the surrender of the respondent was barred in view of the applicability of the doctrine of res judicata. The applicant contended that the previous bar on the respondent's extradition would not act as res judicata for the issuance of another European Arrest Warrant.

Mr. Justice Hunt refused the surrender of the respondent. The Court held that though the prohibition on surrender would not act as a bar to the issuance of fresh warrants, yet there must be some changes in legal or factual circumstances that would allow the Court to take a different view on the issues previously litigated. The Court found that the applicant was unable to point out any change in law or any amendment that could make the Court to delineate from its position on the extra-territoriality issue in the present case. The Court held that the prior judicial determination of that issue by the Supreme Court had disposed of the issues of the fact and law once and for all and those could not be raised again.

JUDGMENT of Mr. Justice Hunt delivered on the 24th day of July, 2017

Background

1 By these proceedings the applicant seeks the surrender of the respondent Mr Ian Bailey to France, pursuant to a request effected by way of a European Arrest Warrant (‘the warrant’). The offence alleged in the warrant is the murder of Mme. Sophie Toscan du Plantier in Cork in December 1996. The warrant appears to have been issued in or about the 3rd of August 2016 by Ms. Anne Givaudand, Magistrate of the Judicial Order and Vice-Prosecutor. It is based on a domestic warrant for arrest issued on 13th of July 2016 by Ms. Nathalie Turquey, Vice-President in charge of investigation at the High Instance Court of Paris, for the purpose of criminal prosecution. The warrant is further described as a warrant of arrest for the purpose of criminal prosecution pursuant to section 131 of the Code of Penal Procedure. The subsequent English translation is dated the 2nd November 2016.

2 The warrant was endorsed for execution pursuant to section 13 of the European Arrest Warrant Act 2003 on the 30th of March 2017. On the same date, Mr Bailey was arrested by prior arrangement and immediately remanded on bail. The respondent objected to his surrender on foot of this warrant, and the application and objection were heard on various dates in May and June 2017.

3 An obvious and unusual feature of this case is that the Supreme Court has previously ruled that there is a jurisdictional bar to the surrender of Mr Bailey to France in respect of the alleged offence. By judgments and order of the 12th of March 2012 the Supreme Court ruled that Mr Bailey's surrender for the alleged murder of a French citizen in Ireland is prohibited by virtue of the provisions of section 44 of the European Arrest Warrant Act 2003 (‘the Act’). On this point, the Supreme Court divided by four to one in favour of Mr. Bailey. The case is reported as Minister for Justice and Equality v. Bailey at [2012] IESC 16 and [2012] 4 I.R. 1. The facts of the matter up to that date are extensively recited and may be found therein. I do not propose to recite or revisit the factual matters apparent in the various judgments of the Supreme Court, and will refer only to the few developments that have occurred since that date.

Res Judicata/Issue Estoppel

4 The first and principal issue which arises in this application is as to whether it should be dismissed on the grounds that surrender is prohibited by section 44 of the Act as amended. For the respondent, Mr Simons SC submitted that as there had been no material change in either the factual circumstances alleged or in the applicable statutory regime since the delivery of the Supreme Court judgment, the applicant is precluded and/or estopped from re-litigating the matter of the surrender of the respondent on foot of the second warrant, absent a change of circumstances. On that basis, it was said that this issue was res judicata, and/or subject to an issue estoppel, and/or subject to a cause of action estoppel.

5 The Minister submitted that the principle of res judicata did not apply. In that regard, it was submitted that the Respondent's case was premised on the mistaken assumption that the applicant was seeking to reopen the decision reached by the Supreme Court in the previous application, which was not the case as the current application currently before the court is based on a fresh warrant. This submission was based on the decision of the High Court of England and Wales in Auzins v Prosecutor General's Office of the Republic of Latvia (2016) EWHC 802 (Admin), to the effect that the principle of res judicata does not apply to criminal proceedings applied in equal measure to extradition proceedings. Mr Barron SC also relied on Attorney General v. Abimbola [2008] 2 IR 302 in that regard. He also submitted that European Union law does not permit res judicata to be applied in all cases where it would have the effect of precluding a Member State from applying European Union law and complying with its obligations thereunder. The placing of a fresh European Arrest warrant before the Court gave rise to a fresh application to be determined, and there was no exception to the prima facie obligation to surrender on grounds of res judicata to be found in the Framework Decision underpinning the European Arrest warrant regime. Mr Barron suggested that this was the first occasion when it had to be decided whether these doctrines had any applicability to extradition matters in this jurisdiction.

6 If it is the first such occasion, I am greatly assisted in the decision to be made by a range of previous observations of the Supreme Court. I am satisfied that in such proceedings, a critical distinction may be drawn between the refusal of surrender in earlier proceedings and the conclusive determination of an issue of law or fact as part of that refusal. A refusal of surrender pursuant to a first warrant does not preclude the issue of a second or subsequent warrant. However, if an issue of law or fact has been conclusively determined in the earlier proceedings, and there has been no material change in the factual or legal circumstances presented to the court considering issues arising from the second warrant, I am satisfied that on issues integral to the determination in the earlier proceedings, that determination remains binding on the parties to the first decision.

7 An example of the presentation of a second or fresh warrant following a previous refusal to surrender is found in Attorney General v. Gibson [2004] IESC 85. The first warrant had been dismissed by the District Court on the basis that the facts set out in that warrant were insufficient to allow the District Judge to determine whether there was correspondence between the offence alleged against the respondent and an offence in this jurisdiction, as required by the Extradition Act 1965 (as amended). A second warrant was then issued by the requesting State which set out more detailed particulars of the alleged offence. This was then presented to the High Court. The Supreme Court held that the High Court was not precluded by the principle of res judicata from adjudicating on the second, differently worded warrant. Keane C.J. stated as follows:-

‘It is necessary to say at the outset that, in my view, it is clear beyond argument that in extradition cases, the mere fact that a warrant has been issued and an application made arising out of the warrant to the court for an order or extradition, that a warrant has been issued on an earlier occasion arising out of precisely the same alleged offence, and has been adjudicated upon by the District Court or any court of competent jurisdiction, that fact does not, of itself and by itself, preclude a subsequent application to a court of competent jurisdiction. If there were any doubts that that is the state of the law, they were, in my view, laid to rest by the decision of this court in Bolger -v- O'Toole (unreported decision of the court, delivered on 2nd December, 2002).

8 Significantly, the Supreme Court then stated the following in relation to extradition matters:-

‘It is a particular judicial procedure under which, given the existence of an extradition treaty, a court has to determine whether the specific requirements of the extradition treaty, in this case Part 3 of the Extradition Act, 1965, have been complied with. Namely, in effect, has the person before the court been identified as the person in the warrant and does the warrant or any other material before the court show that the offence with which he is charged is an offence corresponding to an offence of the requisite degree of gravity in this jurisdiction. Points may be taken on an earlier hearing which are technical in nature and that may be how the points taken before District Judge Haughton, points which concerned him may be characterised but it is of no relevance at the end of the day because what is relevant is that the District judge can be said to have arrived at an adjudication which is final and binding between the parties and their privies and which relates to the same issue. If it does not relate to the same issue then it does not really matter whether one describes it as a...