THE MINISTER FOR Justice Frances Fitzgerald is insulting the Irish courts by seeking to go around a Supreme Court judgment placing an “absolute bar” on Ian Bailey’s surrender to France in relation to the death of Sophie Toscan du Plantier, according to the Englishman’s lawyers.
Du Plantier was found beaten to death outside her holiday home in Schull, west Cork in December 1996.
Bailey (60) of The Prairie, Liscaha, Schull denies any involvement in her death and claims gardaí tried to frame him for her killing.
French authorities are seeking the surrender of Bailey to France for alleged voluntary homicide. It is the second time the French authorities have tried to extradite Bailey to France following a rejection by the Supreme Court in 2012.
In March, a second European Arrest Warrant issued in respect of Bailey in relation to the alleged offence was endorsed by the High Court.
Outlining his points of objection to the application today, Bailey’s barrister Garrett Simons SC, said his client made a “very straightforward and obvious case”.
Simons said there was “no way around” the Supreme Court decision in 2012 which identified an “absolute jurisdictional bar” to Bailey’s extradition to France in relation to the alleged offence.
He said the previous issue that was determined by the Supreme Court continued to apply. There had been no change to the factual circumstances or legal context.
There must be finality to litigation, Simons said. It was in the public interest that there cannot be endless litigation and it was an “abuse of process” for a party, the Minister, who has litigated an issue all the way to the Supreme Court to seek to litigate again.
He said the Minister was insulting the Irish courts, was not respecting the sovereignty of the Irish courts and was misunderstanding European law.
Simons said it was “extraordinary” that the Minister does not say the Supreme Court was wrong. The most the Minister says is the section in relation to extraterritoriality was “unclear” but that could not provide a basis for setting aside a Supreme Court judgment.
“How did the Minister get it so wrong,” Simons asked. He said case law, known as ‘JAT’, showed there was an obligation on a central authority to exercise a level of discernment.
Simons said the public interest was in avoiding the creation of a safe haven but Mr Bailey had lived here for 25 years and was always at hazard of being prosecuted. The alleged offence took place here and Bailey would have been prosecuted here “had there been any evidence”.
He referred to the right of an individual to be free from harassment and free from “vexatious litigation”. The fact the minister was seeking to relitigate the section 44 extraterritoriality issue was an abuse of process, he said.
Another aspect of the abuse of process, Simons submitted, were the concerns expressed by the former Director of Public Prosecutions, that the Garda investigation into the death of du Plantier was thoroughly flawed and prejudicial.
Simons said the concerns expressed by the former DPP were shocking and struck a blow against the fundamentals of the rule of law in Ireland.
Simons said one would expect a robust response from the Minister to those concerns in this application. Instead, the Minister “washes her hands of it” and says “allegations of Garda misconduct” were “not matters of relevance”.
That was a wholly inadequate response to “serious allegations put by a former DPP”. The High Court was blithely being told “nothing to see here”.
There was a point when trust and confidence between nations “breaks down”.
It was never the intention of the European extradition framework decision for countries to mount prosecutions where one’s own independent prosecutor has characterised the investigation as thoroughly flawed and prejudicial or to rely on evidence “condemned” by those authorities, Simons said.
The hearing continues before Mr Justice Tony Hunt this afternoon.
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