Andrew McKeown BL

About this case:

• Court:
  High Court
• Judge:
  Mr Justice Paul Burns

Background

The Minister for Justice and Equality sought an order for the surrender of Mr Bailey to the French Republic pursuant to a European Arrest Warrant (EAW) issued by Vincent Feron, deputy prosecutor at the Cour d’Appel de Paris (Court of Appeal in Paris).

The EAW seeks the surrender of Mr Bailey to serve a sentence of 25 years’ detention imposed by the Cour d’Assises (Court of Assize) in Paris in May 2019, for the murder of Sophie Toscan du Plantier, a French citizen, at Schull, Co Cork, in December 1996.

The killing was investigated by An Garda Síochána and Mr Bailey, a UK national, who was a neighbour of Ms du Plantier, became a suspect.

A file was sent by gardaí to the Director of Public Prosecutions (DPP) who decided there should be no prosecution against him for any charge in relation to the killing and accordingly no prosecution was brought in Ireland against him. The file was reviewed on a number of occasions and the decision not to prosecute was confirmed.

He was tried in absentia in France in 2019, and he had no legal representation at that trial.

High Court

The EAW was endorsed by the High Court on 16 December 2019. It was executed by An Garda Síochána and Mr Bailey was admitted to bail on the same day.

The European Arrest Warrant Act 2003 s.45 provides: “A person shall not be surrendered if he or she did not appear in person at the proceedings resulting in the sentence” in respect of which the EAW, unless the issuing country deals with certain matters in the EAW form. France indicated that Mr Bailey would be personally served with this decision after the surrender, and that, when served with the decision, he would be expressly informed of his right to a retrial or appeal, in which he would have the right to participate and which would allow the merits of the case, including fresh evidence, to be re-examined and which may lead to the original decision being reversed.

Mr Justice Paul Burns was satisfied that the requirements of s.45 were met, and that this did not in itself preclude surrender.

David Conlan Smyth SC with Ronan Munro SC and Marc Thompson BL, instructed by Frank Buttimer & Company, for Mr Bailey, argued against the surrender. Mr Conlan Smyth submitted that surrender was precluded as the issue of his surrender to France was already determined in his favour by the Irish Courts in such a way as to amount to an estoppel or accrued right.

This was the third EAW issued by France seeking Mr Bailey’s surrender. The first EAW was issued by France in February 2010, and the High Court ordered Mr Bailey’s surrender, but this was overturned on appeal in 2012 by the Supreme Court in Minister for Justice and Equality v Bailey (no.1) [2012] 4 IR 1, which refused to order surrender on the grounds that there had been no decision at that stage to try Mr Bailey, and that s.44 precluded his surrender.

The second EAW was issued by France in August 2016, but the High Court (Minister for Justice and Equality v Bailey (no.2) [2017] IEHC 482) refused to order his surrender on a number of grounds, including that the application was an abuse of process.

Robert Barron SC with Leo Mulrooney BL, for the Minister, submitted that the Supreme Court in Bailey No. 1 held that the surrender of Mr Bailey was prohibited under s.44 by virtue of the limited extraterritorial jurisdiction exercised by Ireland at that time in respect of murder, and in particular that such jurisdiction was limited to circumstances where the alleged perpetrator was an Irish citizen.

It was submitted that such prohibition no longer applies as the basis upon which Ireland exercises territorial jurisdiction in respect of the offence of murder has been amended by the Criminal Law (Extraterritorial Jurisdiction) Act 2019 s.3(5), so that Ireland will seek to prosecute an offence of murder committed outside of Ireland where the alleged perpetrator is an Irish citizen or is ordinarily resident in Ireland. The Minister submitted that as Mr Bailey is ordinarily resident in Ireland, the State could prosecute him for murder committed outside of Ireland, and in such circumstances s.44 of the Act 2003 no longer prohibits his surrender.

Mr Conlan Smyth argued that on a proper interpretation of s.44 and the principle of reciprocity of jurisdictional bases, the fact that Ireland will now prosecute persons ordinarily resident in Ireland in respect of murders committed outside of Ireland makes no difference, as the requisite reciprocity has still not been established. France bases its extraterritorial jurisdiction on the nationality of the victim, while Ireland bases its extraterritorial jurisdiction on the nationality or ordinary residence of the alleged perpetrator. Thus, even if at the time of the hearing in Bailey no.1 Ireland had asserted jurisdiction to prosecute persons ordinarily resident in Ireland in respect of a murder committed abroad, the decision in Bailey no. 1 would not be any different as the requisite reciprocity did not exist.

The wording of s.44 was the subject of adverse judicial comment in Bailey no. 1. Mr Justice Adrian Hardiman said that that the wording was “a little difficult to understand because of the use of too many words and their deployment in a peculiar and rather unnatural order.” Mr Justice Donal O’Donnell said that the task of interpretation, whether general or specific, is however particularly difficult in this case. The language of s.44 of the Act of 2003 is somewhat opaque.” Despite such commentary, Mr Justice Burns noted that the wording of s.44 has not been amended and “remains in its initial unsatisfactory form.”

Mr Justice Burns considered the interpretation of s.44 of the Act of 2003 as set out in Bailey No. 1, and the judgment of Mr Justice Paul McDermott in Minister for Justice and Equality v Pal [2020] IEHC 143, and found that the surrender of Mr Bailey remains precluded by virtue of s.44.

“One may look at it another way by reversing the circumstances. If an Irish citizen was murdered in France by a UK national, who was ordinarily resident in France, Ireland would not exercise extraterritorial jurisdiction or seek extradition of the offender. Thus, the requisite reciprocity does not exist.”

Mr Justice Burns, having reviewed Tobin and Bailey No. 2, was satisfied that the principle of issue estoppel can apply in the context of an application for surrender. “I am also satisfied that a final judicial determination on a substantive issue, as opposed to a technical issue or alleged defect in the warrant, resulting in a refusal to surrender can give rise to an accrued right not to be surrendered on the part of the requested party.” He noted Mr Justice O’Donnell’s decision in Tobin that the “mere existence of a right does not preclude statutory interference with that right.” As was observed by Lord Alan Rodger in Wilson v First County Trust Ltd (no.1) [2003] UK HL 40, the presumption is a weak one; all that the presumption requires is that the intention clearly appear and from the text of the specific words used from the context of the amending legislation.

Mr Justice Burns was satisfied that Mr Bailey is “not merely someone who might have had a right to take advantage of the former legislative provision, but rather was someone in respect of whom ‘something’ had happened so that a right vested in him or accrued to him. That ‘something’ was an application for surrender hearing and a determination by the Supreme Court that he should not be surrendered.”

“The question that then arises is whether in changing the relevant legislation to extend extraterritorial jurisdiction for murder to persons ordinarily resident in Ireland, the Oireachtas intended to deprive the respondent (or others in a similar position) of the benefit of that previous decision not to surrender and thus make him amenable to future surrender.”

Conclusion

The Surrender of Mr Bailey is precluded by virtue of s.44, by reason of a lack of the requisite reciprocity required thereunder, notwithstanding the enactment of the Criminal Law (Extraterritorial Jurisdiction) Act 2019.

Surrender of Mr Bailey is also precluded by virtue of an accrued or vested right to the benefit of the previous judicial determinations refusing such surrender, which he was not divested of by reason of the enactment of the 2019 Act.