LAST UPDATE | 12 Oct 2020

A THIRD ATTEMPT to extradite Ian Bailey to France, where he is facing a 25-year prison sentence for the murder of filmmaker Sophie Toscan du Plantier, has failed after a High Court judge today refused to order his surrender.

High Court judge Mr Justice Paul Burns today delivered his judgment rejecting the State’s application for the extradition of Bailey, finding that both his analysis of Section 44 of the European Arrest Warrant and the issue of estoppel [a legal principle that prevents someone from arguing something or asserting a right that contradicts what they previously said or agreed to by law] precluded him from making the surrender.

Bailey (63) was arrested at the Criminal Courts of Justice Building in December 2019, on foot of a European Arrest Warrant (EAW) issued by French authorities. He was remanded on bail after a High Court judge subsequently endorsed what was the third EAW seeking his extradition to France

This was the third attempt by French authorities to seek Mr Bailey’s surrender in relation to the death of du Plantier, whose badly beaten body was found outside her holiday home in Schull in December 1996.

French authorities previously sought the surrender of Bailey in 2010.

The High Court ordered his extradition but this ruling was overturned by the Supreme Court in 2012, which held that section 44 of the European Arrest Warrant Act 2003 prohibited surrender because the alleged offence was committed outside French territory and Irish law did not allow prosecution for the same offence when committed outside its territory by a non-Irish citizen.

Bailey is a British citizen.

A second French extradition request in respect of Bailey was dismissed as an “abuse of process” by the High Court in July 2017.

On that occasion, Mr Justice Tony Hunt held that the “unique features” of the case justified “termination” of the proceedings. He said the Minister was “estopped” or halted from obtaining an order for Bailey’s surrender in light of the Supreme Court’s judgement in 2012 on identical relevant facts.

The former journalist, with an address at The Prairie, Liscaha, Schull, west Cork, was convicted of the French woman’s murder in his absence in a Paris court in May 2019.

The three-judge Cour d’Assises (criminal trial court) in Paris accordingly imposed a 25-year prison sentence on Mr Bailey in his absence. Bailey, who denies any involvement in du Plantier’s death, did not attend the French court and had no legal representation in the proceedings, which he has described as a “farce”.

The Englishman had contested his surrender during a three-day extradition hearing at the High Court last July, with his lawyers submitting that a request to extradite their client to France for a third time was “an abuse of process”.

Legal argument

Opposing an application for Bailey’s surrender to France, Ronan Munro SC argued that Bailey had an “ironclad and unassailed right” not to be surrendered to France, which had not been threatened in any way by subsequent developments in law.

The lawyer said there was a binding judgment from the Supreme Court in 2012 prohibiting the surrender of Mr Bailey based on section 44 of the European Arrest Warrant Act 2003, which remained untouched and intact.

Furthermore, the Criminal Law (Extraterritorial Jurisdiction) Act 2019 had not materially affected the decision of the Supreme Court in 2012 and therefore the High Court was bound by that, submitted Munro.

Bailey’s legal team had also objected to the Englishman’s surrender based on the absence of an appeal by the State from the High Court’s decision not to extradite the respondent to France in 2017, which they said created “an issue of estoppel” [a legal principle that prevents someone from arguing something or asserting a right that contradicts what they previously said or agreed to by law].

David Conlan Smyth SC, also for Bailey, invited the court to find that there had been “inordinate, excessive and culpable delay” on the part of the issuing State to put the former journalist on trial, which he said remained unexplained.

The barrister highlighted that it had been 24 years since the criminal investigation had commenced and seven years since the application was refused by the Supreme Court.

“At what point does the EAW become so oppressive and burdensome that there is a breach of Article 6 fair trial rights. We say that date has long since passed,” he argued.

‘A safe haven’

In reply, counsel for the Minister for Justice Robert Barron SC, said that “in a bizarre way” Ireland had become a “safe haven” for Bailey because he could not travel anywhere outside the European Union for risk of being arrested.

He said du Plantier’s family felt they had not achieved justice and the High Court had a “prima facie” obligation to surrender the Englishman, who has been suspected for 24 years of killing the mother-of-one, to France.

The Irish High Court did not know what evidence would be available to the French authorities in the case of a retrial for Bailey in France and what issues would likely arise, submitted Mr Barron.

Bailey was present in court today for the hearing and made no reaction when the judgment was delivered.

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