State denies ‘usurping’ courts by seeking ECJ reference in Ian Bailey case

The assertion came a day after the Minister for Justice was accused of insulting the Irish courts by seeking to go around a Supreme Court judgment placing an “absolute bar” on Ian Bailey’s extradition to France in relation to the death of Sophie Tuscan du Plantier.

Mr Bailey denies any involvement in the death of Ms du Plantier, who was found dead outside her holiday home in Schull in December 1996.

French authorities previously sought the surrender of Mr Bailey in 2010 but this application was refused by the Supreme Court in 2012. A second extradition request was transmitted to Ireland last year, seeking the surrender of Mr Bailey for alleged voluntary homicide.

French authorities have previously prosecuted people for crimes committed against French citizens outside of France. Mr Bailey, who claims gardaí tried to frame him for the killing of Ms du Plantier, could be tried in France in his absence.

Opposing surrender on Wednesday, Garrett Simons SC said his client, Mr Bailey, had a “very straightforward and obvious case”.

Mr Simons said there was “no way around” the Supreme Court decision in 2012 which identified an “absolute jurisdictional bar” to Mr Bailey’s extradition to France in relation to the alleged offence.

He said section 44 of the European Arrest Warrant Act 2003, which implemented the European Framework Decision on extradition between member states, was determined by the Supreme Court as an “absolute bar” to Mr Bailey’s surrender and that continued to apply.

The five-judge Supreme Court refused to surrender Mr Bailey in 2012 and four of the five judges upheld Mr Bailey’s argument that section 44 prohibits surrender because the alleged offence was committed outside French territory and Irish law does not allow prosecution for the same offence when committed outside its territory by a non-Irish citizen.

Applying for the surrender of Mr Bailey yesterday, counsel for the Justice Minister, Robert Barron SC, submitted that the legal concept of ‘Issue Estoppal’, which prohibits legal actions in cases already decided, does not apply to criminal law.

The State are asking the High Court to refer the Supreme Court’s 4-1 interpretation of section 44 to the European Courts of Justice for determination.

Mr Barron said O’Donnell J, the single dissenting Supreme Court judge on the section 44 matter, was correct in his interpretation of the framework decision and the act.

He submitted that the majority Supreme Court interpretation was “incorrect” and that it would be appropriate to have a reference from the High Court to the European Courts on the matter.

He said it was “recognised by the Supreme Court” that there were two interpretations and the only way it could be resolved conclusively was by the court in Luxembourg.

Mr Justice Tony Hunt remarked that “somebody, somewhere” had apparently decided that the Supreme Court got it “catastrophically wrong” and the way to correct it is to get the European Courts to tell the Supreme Court they got it wrong.

It appeared as though the application was an “exploration of a method by which the Supreme Court decision might be revisited”.

Mr Barron agreed his submission was that the High Court should refer the matter to Europe because the Supreme Court got it wrong.

However, “with respect”, Mr Barron said, nobody was trying to “usurp” the courts and there was “no ulterior purpose”. He stressed he was simply making legal submissions.

Mr Barron agreed the High Court did not need to go further than O’Donnell J’s dissenting view but denied he was asking the High Court to decide the Supreme Court majority got it wrong.

Mr Justice Hunt asked Mr Barron what the French authorities had been doing between the Supreme Court’s judgment in 2012 and the decision to issue a new warrant in respect of Mr Bailey in 2016.

“When did Mr Bailey become a triable person rather than a chargeable person,” the judge asked.

Mr Barron referred to the court of assize in July 2016 and said an enquiry had been made of the French authorities.

The case resumes in the High Court before Mr Justice Hunt on Wednesday 14 June.

Ruaidhrí Giblin, Ireland International News Agency Ltd.