ANALYSIS: The DPP decided not to prosecute Ian Bailey – should this be dismissed by another EU state?
THERE IS a lot at stake in the attempt to extradite Ian Bailey to France to face the accusation that he murdered Sophie Toscan du Plantier.
For her family there is the prospect, if he is extradited, that after 14 years in which no one has been brought to justice for her brutal murder, they will have the satisfaction at last of a trial.
For the Irish State, which is processing the European arrest warrant, the way in which European co-operation on justice matters operates will now be extensively examined in the courts, with possible implications for the future operation of the European arrest warrant system.
These issues will be teased out in a number of legal forums in the coming months, if not years.
The Irish Director of Public Prosecutions decided not to prosecute Bailey for the murder of the French film-maker in Schull, Co Cork, on December 23rd, 1996. Following a review, at the request of Toscan du Plantier’s family, of his initial decision not to do so and a re-examination of all the evidence, he reiterated that decision.
A French magistrate, Judge Patrick Gachon, issued the warrant for Bailey’s arrest earlier this month in order to seek clarification of contradictions between Bailey’s testimony at his libel action against a number of newspapers in relation to his alleged role in the murder, and that of witnesses who also testified before the hearing, according to the support group for Toscan du Plantier’s family.
Under the French legal system, a magistrate has a preliminary investigatory role in criminal prosecutions.
Bailey’s solicitor Frank Buttimer said earlier this month that were his client to lose his battle against extradition in the High Court, he would appeal to the Supreme Court, as he believed granting an arrest warrant in such circumstances would raise broader constitutional issues.
There is no new evidence in relation to the criminal case, as far as we know, so the question raised by the request for extradition under the European arrest warrant is whether a person can be extradited to another jurisdiction in the EU to face prosecution when the legal authorities in the original jurisdiction decided in good faith not to prosecute.
A further intriguing question is whether in the course of any possible new trial the defence will seek discovery of the records of the evaluation of the case in the DPP’s office, which presumably contains the reasons for the decision not to prosecute in this jurisdiction.
If so, will these reasons potentially be rejected by a French court?
The legal principle that a person cannot be tried twice for the same offence is embedded in the European Convention on Human Rights (ECHR), as well as the Irish Constitution. Bailey was not tried here, but a decision was made not to try him.
The ECHR is now part of EU law, following the adoption of the Lisbon treaty. This raises the prospect of the case ending up in two international courts – the European Court of Human Rights in Strasbourg and the European Court of Justice in Luxembourg.
Ultimately, if the courts decide that Bailey can be extradited to face trial in France, the European arrest warrant will itself come under scrutiny. Fundamental to its smooth operation is the assumption that each member state of the EU acts in good faith in its operation of its criminal justice system.
Can this assumption survive a rejection by one member state of the validity of a decision not to prosecute in another?