Updated 2.19pm

THE HIGH COURT has refused to order the extradition of Ian Bailey to France in relation to the death of Sophie Toscan du Plantier, dismissing the Minister for Justice’s application as an “abuse of process”, among other reasons.

Mr Bailey (60) of The Prairie, Liscaha, Schull, west Cork, denies any involvement in the death of Tuscan du Plantier, who was found dead outside her holiday home in Schull in December 1996.

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

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

Refusing the surrender of Bailey today, Justice Tony Hunt said the minister was “estopped” or halted from obtaining an order for Bailey’s surrender in light of the Supreme Court’s judgment in 2012 on identical relevant facts.

Justice Hunt said he would also refuse surrender because, in the unique circumstances of this case, it was an “abuse of process” for five distinct reasons for the minister to seek surrender on the fresh warrant.

‘Delighted’

Speaking outside court, Bailey said: “I tend not to have reactions to this long ongoing ordeal. Obviously I’m pleased and delighted with the judgement of the judge today and I thank judge Hunt for that judgment. I would also thank my legal team who have been amazing.”

“It’s not the end of it because the State will almost certainly appeal that decision today. It’s noticeable that the State who took this case against me and have put me through a form of torture for 20 years on-and-off, were not even represented in court today. There was nobody there, which is astonishing.”

“Later this week we get a decision on whether I have a new civil appeal. That’s happening on Wednesday.”

“I would think the State would almost certainly appeal this decision today so it’s not the end of the matter.”

He said he did not know if the French would go ahead with a trial in his absence. When asked if he had a message to the French, Bailey said: “I have always said, I’m very sympathetic to the family and I know that they believe for whatever reason that I had something to do with the death of their daughter. And I’m very sympathetic, but I had nothing to do with it. I can’t say very much more than that.”

‘No way around’

Justice Hunt, in his judgement, said he did not need a reference to the Court of Justice of the European Union (CJEU), as had been requested by the State. He said the minister and his successors were “disappointed litigants” and it appeared to him that the underlying theme of the minister’s application was a “conviction that the majority of the Supreme Court were in error” in 2012.

A five-judge panel of the Supreme Court refused to surrender Bailey in 2012 and four of the five judges upheld 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.

Opposing surrender at a High Court hearing in May, counsel for Bailey, Garrett Simons SC, said there was “no way around” the Supreme Court decision in 2012.

Simons 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 Bailey’s surrender and that that bar continued to apply.

Five reasons

In a written judgment handed down today, Hunt said he believed the application should be dismissed an abuse of process for five reasons.

Firstly, he said there was the binding and conclusive decision of the Supreme Court on the extra-territoriality issue.

Secondly, five years had passed since that decision and it was now 21 years since the death of Sophie Toscan du Plantier.

Apparently, neither the Minister nor the French authorities considered it appropriate to furnish “any information by way of explanation” for the elapse of time, Justice Hunt said. “I do not know when or why Mr Bailey” moved from being a suspect to “a person required for prosecution.”

Thirdly, there had been no engagement by the minister of the French authorities with the “unusual fact in an extradition case” that Bailey’s alleged involvement in the death of Tuscan du Plantier had been “comprehensively and repeatedly investigated and considered by the police force and prosecuting authorities” in Ireland.

The DPP “concluded long ago that there is no basis for either (a) charge or trial on this matter in this jurisdiction, and unusually, a comprehensive statement of reasons for this prosecutorial decision came into the public domain during the previous Supreme Court proceedings”.

Neither the warrant nor the Minister’s application for surrender “engages with this situation at all”.

“It is simply suggested by the minister that such matters are not relevant to the surrender request. I am unable to share this sanguine viewpoint,” Justice Hunt said, adding that this was a “significant omission”.

“In effect, proceedings were issued for the involuntary surrender of a person entitled to the protection of our laws and Constitution” for a trial and possible imprisonment for 30 years, “ignoring or regarding as irrelevant” the comprehensive determination by Ireland’s domestic legal process that the allegation giving rise to the request could not justify “the preferment of a charge, let alone trial and conviction”.

“I believe I am entitled to regard this highly unusual state of affairs as a contribution to a finding of abuse of process in this case,” Justice Hunt said.

Fourthly, even if it were subsequently decided that the Supreme Court was wrong, it was “highly debatable” whether that would result in the rendition of Bailey and the “forfeiture” of the earlier ruling in his favour.

Fifthly, Justice Hunt said he considered the “conduct” of the first proceedings. He said the “tactical decision to proceed on all fronts, notwithstanding manifest difficulties … makes the current position of the minister untenable.”

“These proceedings amount to no more than abelated and direct challenge to that outcome (in the Supreme Court).”

“In the absence of any material change of circumstances … and unless and until the Supreme Court agrees it fell into error in the manner in which section 44 was interpreted, I cannot regard proceedings issued in such circumstances as other than an abuse of process of this (High) Court.”

“Such a conclusion will not be reached lightly in extradition litigation, but the unique features of this case justify termination of the process on this basis at this time”.

Still bound to follow Supreme Court interpretation

Furthermore, he said the doctrine of precedent also disposed of the matter in Bailey’s favour. The principle that the High Court follows the Supreme Court “is so long established that it rarely requires expression”.

He said the binding effect of the Supreme Court decision on legal issues went beyond the parties to or facts of the case. In the unlikely event the High Court was faced with a surrender request involving different people in identical circumstances, the High Court would still be bound to follow the Supreme Court’s interpretation and application of section 44.

In relation to “issue estoppel”, Justice Hunt said there was no reason to exempt extradition proceedings from the rationale that public policy required a definite and decisive end to litigation.

There was the same interest in finality and certainty in relation to outcomes, and the need for parties and courts to avoid “being vexed repeatedly with issues previously and conclusively decided as between the same parties”.

He said the second warrant was different and must be assessed individually but the Minister could not point to any relevant change in legal or factual circumstances which would allow the High Court to take a different view of the extra-territoriality issue.

Justice Hunt said he did not consider it necessary to obtain the opinion of the European Court, as had been requested by the Minister.

The judge said it appeared to him that the “theme underlying” the minister’s second extradition application was “a conviction that the majority of the Supreme Court were in error in deciding the previous application in the manner they did”.

“Unlike most disappointed litigants, the minister and his successors had the power to amend the legal position applicable” to that ruling if it was “genuinely felt the Supreme Court had incorrectly interpreted” section 44 in the light of the framework decision, “as was submitted by the Minster in this case”.

“No steps had been taken in that direction. Instead, the minister now seeks to take advantage of the fact that a reference tot he Court of Justice of the European Union in relation to the interpretation of the Framework Decision is now possible from the Irish courts.”

“It is suggested the earlier interpretation (by the Supreme Court) could be overturned (by the European Court)” if a preliminary reference to the European Court resulted in an opinion which suggested that “the Supreme Court was in error”.

Justice Hunt said the correct interpretation of the national provision has been “specifically, finally and conclusively determined in proceedings between the same parties by a court whose decisions are “final and conclusive” under the Constitution”.

“An assertion that the Supreme Court incorrectly decided the previous case does not permit the High Court to proceed to adopt the minority view. If that were the position, the work of the courts would expand exponentially and no legal advice could be offered with any degree of certainty.”