COURT RULING:A HIGH Court judge has ruled Ian Bailey can be extradited to France in connection with the killing of French film-maker Sophie Toscan du Plantier in Co Cork 14 years ago.
Unless overturned by the Supreme Court, the High Court decision leaves it up to the French authorities to decide whether Mr Bailey is prosecuted. The Director of Public Prosecutions had decided not to bring any charges against Mr Bailey.
Mr Justice Michael Peart said the warrant issued by the French authorities clearly stated its purpose was to “prosecute” Mr Bailey as required under the European Arrest Warrant Act 2003.
The warrant did not state the purpose was “investigation” and also indicated the French view that there was sufficient evidence to charge Mr Bailey.
The French procedure requires Mr Bailey to be brought before an examining magistrate and given the opportunity to respond to the evidence before any decision is made whether to put him on trial or not, the judge said.
The fact a decision may be made not to try him at the end of that procedure did not entitle Mr Bailey to an order preventing his surrender.
Any comfort Mr Bailey may have derived from the fact the DPP decided not to prosecute him did not confer any right to the effect he could or would not be surrendered, the judge said.
He also rejected arguments, in the “unusual circumstances” of this case, that Mr Bailey faced a real risk of an unfair trial in France.
While French procedures differ completely from those in operation here, including the fact that adverse inferences may be drawn from the fact an accused person remains silent, the court had to presume they conformed to at least minimum standards of fairness under the European Convention on Human Rights.
Mr Bailey (54), The Prairie, Schull, Co Cork, has always denied any involvement in the murder of Ms Toscan du Plantier (39), whose body was discovered near her holiday home in Schull on December 23rd, 1996.
He was arrested and the DPP found no basis to charge him but the French authorities subsequently sought his extradition.
Yesterday, Mr Justice Peart ruled he was required to make the surrender order after dismissing all points of objection raised by Mr Bailey.
He adjourned making any order to allow lawyers for Mr Bailey consider an appeal to the Supreme Court, and Mr Bailey was remanded on continuing bail to Tuesday next to allow lawyers consider the judgment.
In his decision, the judge relied on a recent Supreme Court decision ordering the surrender of a Swedish man, Thomas Olsson, when dismissing arguments that Mr Bailey’s extradition must be refused under sections 10 and 21.A of the European Arrest Warrant Act.
These provisions state an arrest warrant must be issued against a person against whom the requesting state “intends” to bring proceedings and the High Court must be satisfied a decision has been made to “charge and try” the person for the offence.
The warrant in this case stated its purpose was so Mr Bailey can be prosecuted, set out the evidence available to the French authorities and stated that during the Garda investigation here, “serious and convincing clues” were accumulated against Mr Bailey “of such a nature as to justify that he be charged”, the judge said.
The issuing of the warrant indicated, in the opinion of the French authorities, there was “under French law” sufficient evidence to charge Mr Bailey.
The Irish High Court had to “respect and give recognition to that decision”, he said. The fact the DPP took a different view under Irish law must yield to the right of French authority to have a different view under its own law.This was inherent in the arrangements for extradition between EU member states.
The procedure of bringing Mr Bailey before the examining magistrate and giving him an opportunity to respond to the evidence clearly occurred within the process of prosecuting Mr Bailey under French law, the judge said.
He ruled the arrest warrant was issued in accordance with section 10 of the EAW Act 2003 and related to a person against whom the issuing state “intends” to bring proceedings.
The fact a decision may ultimately be made not to try Mr Bailey did not mean, when the warrant was issued, there was not such an “intention” to prosecute, he said.
A decision to prosecute did not depend on any further investigation producing sufficient evidence to put Mr Bailey on trial as the French examining judge had already formed the opinion there was sufficient evidence for that purpose. The fact the DPP took a different view of the available evidence was “immaterial” to this point.
It was “beyond argument” the DPP had considered any evidence gathered by gardaí did not justify charges against Mr Bailey.
The judge also said the Criminal Justice (Terrorist Offences) Act 2005 amended the EAW Act to remove the ban on surrender of a person whom the DPP had decided not to prosecute and rejected arguments that the amendment did not apply to the European arrest warrant issued in 2010 for Mr Bailey.
Mr Bailey had also complained of unfairness because the French warrant included a statement of a witness, Marie Farrell, to the effect she saw Mr Bailey in the vicinity of the crime on the night in question when Ms Farrell had since retracted that statement.
On that issue, the judge said it had to be presumed procedures existed in France whereby the fundamental rights of accused persons are protected.
