Minister for Justice and Equality v Bailey

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul Burns
• Judgment Date: 12 October 2020
• Neutral Citation: [2020] IEHC 528
• Docket Number: RECORD NUMBER 2019/377 EXT
• Court: High Court
• Date: 12 October 2020

BETWEEN

MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

AND

IAN BAILEY

RESPONDENT

[2020] IEHC 528

Paul Burns

RECORD NUMBER 2019/377 EXT

THE HIGH COURT

JUDGMENT of Mr. Justice Paul Burns delivered on the 12th day of October, 2020

1 By this application the applicant seeks an order for the surrender of the respondent to the French Republic (“France”) pursuant to a European arrest warrant dated 21st June, 2019 (“the EAW”). The EAW was issued by Vincent Feron, deputy prosecutor of the Office of the Attorney General before the Appeal Court of Paris, as the issuing authority. The EAW seeks the surrender of the respondent to serve a sentence of 25 years' detention imposed by the High Court of Paris on 31st May, 2019, for the murder of Sophie Toscan du Plantier (née Bouniol) at Schull, County Cork, Ireland, in 1996. The EAW is based on a French domestic arrest warrant issued by the High Court of Paris on 31st May, 2019.

2 The EAW was endorsed by the High Court on 16th December, 2019, was executed by An Garda Síochána and the respondent was admitted to bail on the same day.

3 I am satisfied that the person before the Court is the person in respect of whom the EAW was issued. No issue was raised in this respect.

4 I am satisfied that the minimum gravity requirements of the European Arrest Warrant Act 2003, as amended (“the Act of 2003”), have been met. The respondent is sought to serve a sentence of 25 years' detention, all of which remains to be served.

5 I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the Act of 2003 arise and that the surrender of the respondent is not prohibited for the reasons set forth therein.

6 At part (e) of the EAW, the issuing authority has certified that the offence in question carries a maximum penalty of at least 3 years' detention in France and has ticked the relevant box for “murder, grievous bodily injury” to indicate that the offence is one to which article 2(2) of the Council Framework Decision dated 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States, as amended (“the Framework Decision”), applies so that, by virtue of s. 38 of the Act of 2003, it is not necessary for the applicant to establish correspondence between the offence referred to in the EAW and an offence under the law of Ireland. No issue was taken in respect of this certification and in any event, I am satisfied that, if necessary, correspondence could be established with the Irish offence of murder.

7 The respondent was tried, convicted and sentenced in his absence. Section 45 of the Act of 2003 provides:-

“A person shall not be surrendered under this Act if he or she did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the European arrest warrant was issued, unless the European arrest warrant indicates the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision as amended by Council Framework Decision 2009/299/JHA, as set out in the table to this section.”

The relevant table has been replicated at part (d) of the EAW and has been completed by the issuing authority by ticking box 2 thereof:-

“2: No, the person did not appear in person at the trial resulting in the decision.”

The issuing authority went on to tick box 3.4:-

“3.4 The person was not personally served with the decision, but

the person will be personally served with this decision without delay after the surrender, and

when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined and which may lead to the original decision being reversed, and

the person will be informed of the timeframe within which he or she has to request a retrial or appeal which will be 10 days

within one month since the date of his arrest or of his constitution as a prisoner, the convicted accused may, however, can consent to the judgement of the High Court and we, in the presence of his lawyer, the new review of his case. The waiver shall be confirmed by the president of the High Court, where appropriate in accordance with the procedure provided by article 706 – 71. The appeals time limitation or last appeal run from the notification to the public prosecutor or the notification to the parties of the recognition of this waiver.”

8 I am satisfied that the requirements of s. 45 of the Act of 2003 have been met and that the surrender of the respondent is not prohibited thereunder. No issue was taken in this regard.

9 The respondent delivered points of objection dated 20th January, 2020 which may be summarised as follows:-

(a) surrender is precluded by virtue of the provisions of s. 44 of the Act of 2003;

(b) surrender is precluded as the issue of the respondent's surrender to France has already been determined in favour of the respondent by the Irish courts in such a way as to amount to an estoppel or accrued right on the part of the respondent;

(c) surrender is precluded as the application herein amounts to an abuse of process;

(d) surrender is precluded by virtue of the provisions of s. 37 of the Act of 2003 as it would be in breach of the State's obligations under the European Convention on Human Rights (“the ECHR”) and/or the Constitution, in particular the respondent's fair trial rights and right to a private/family life; and

(e) surrender would be contrary to the provisions of the Act of 2003 because the EAW was not validly issued, as the “Attorney General before the High Court in Paris” was not a proper or lawful issuing judicial authority. At hearing, the Court was informed that this objection was not being pursued.

10 At hearing, there was considerable overlap between the points of objection as argued.

11 The respondent swore an affidavit dated 10th February, 2020 and his solicitor, Mr. Frank Buttimer, swore three affidavits dated 18th February, 2020, 14th July, 2020 and 16th July, 2020, respectively. The respondent relied upon a “statement of French law” furnished by Ms. Marie d'Harcourt.

12 The background history to this application is long and complex. On the night of 22nd–23rd December, 1996, Mme. Sophie Toscan du Plantier, a French citizen, was brutally killed at her home in Schull, Co. Cork, Ireland. The killing was investigated by An Garda Síochána and the respondent, a United Kingdom (“the UK”) national, who was a neighbour of Mme. Toscan du Plantier, became a suspect. A file was sent by An Garda Síochána to the Director of Public Prosecutions (“the DPP”) who decided that there should be no prosecution against the respondent for any charge in relation to the killing and accordingly, no prosecution was brought in Ireland against the respondent. The file was reviewed on a number of occasions and the decision not to prosecute was confirmed. The respondent's solicitor was informed of this by letter dated 5th July, 2010. The investigation carried out by An Garda Síochána and the behaviour of some members of An Garda Síochána associated with the investigation has been the subject of criticism and adverse comment in a number of quarters, but it should be noted that there has never been any official finding of wrongdoing on the part of any member of An Garda Síochána in respect of this matter.

13 This is the third European arrest warrant issued by France seeking the surrender of the respondent. The first European arrest warrant was issued by France on 19th February, 2010 and sought the surrender of the respondent in respect of the murder of Mme. Toscan du Plantier. On foot of that warrant, the High Court ordered the surrender of the respondent but this was overturned on appeal on 1st March, 2012 by the Supreme Court in Minister for Justice and Equality v. Bailey [2012] IESC 16; [2012] 4 IR 1 (“ Bailey No. 1”) which refused to order surrender on the grounds that there had been no decision at that stage to try the respondent, and also that s. 44 of the Act of 2003 precluded his surrender.

14 The second European arrest warrant was issued by France on 3rd August, 2016 and sought the surrender of the respondent for the purpose of prosecuting him for the murder of Mme. Toscan du Plantier. On 24th July, 2017, the High Court refused to order the surrender of the respondent in Minister for Justice and Equality v. Bailey [2017] IEHC 482 (“ Bailey No. 2”) on foot of the said warrant on a number of grounds, including that the application was an abuse of process.

15 Subsequent to the refusal of surrender on foot of the second warrant, the French authorities initiated a prosecution of the respondent in France for the murder of Mme. Toscan du Plantier. The respondent was not present or represented at the trial in France which resulted in his conviction for murder and the imposition of a sentence of 25 years' detention on 31st May, 2019. The extraterritorial jurisdiction for murder under Irish law was extended by the Criminal Law (Extraterritorial Jurisdiction) Act, 2019 (“the Act of 2019”) which came into operation on 29th April, 2019. The third and current EAW before this Court was issued on 21st June, 2019 and seeks the surrender of the respondent in order that he should serve the said sentence, subject to a right of appeal or retrial as indicated at part (d) of the EAW.

16 It must be emphasised that the guilt or innocence of the respondent in respect of the murder of Mme. Toscan du Plantier is not an issue in these proceedings, which are concerned solely with the issue of whether the applicant is entitled to an order for the surrender of the respondent to France on foot of the EAW before the Court. I turn now to consider the points of objection to surrender raised by the respondent.

17 In both Bailey No. 1 and ...