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Ian Bailey case heading towards miscarriage of justice

Dermot PJ Walsh

By Dermot PJ Walsh on 27/05/19

Ian Bailey case heading towards miscarriage of justice
The Ian Bailey case is surely the most bizarre and unprecedented case in the history of Irish criminal law. He is about to be tried in his absence in France for a murder in west Cork 22 years ago. The victim was Sophie Toscan du Plantier, a French woman who was resident in west Cork at the time. Bailey (pictured), an Englishman, was, and still is, a permanent resident there. A critical feature of the case is the manner in which it was investigated by the Garda. The Director of Public Prosecutions subsequently described that investigation as “thoroughly flawed and prejudiced” against Bailey. The DPP decided not to prosecute as there was insufficient credible evidence to warrant prosecution.

Instead of facing up to the consequences of the Garda failures, the Government has allowed the prosecution of this murder to be shipped offshore to France. Such an astounding abdication of sovereignty in domestic criminal matters has degraded the integrity of the Irish criminal process, and exposed Bailey to 22 years of oppressive investigation and litigation with seemingly no end in sight. The case is heading towards a serious miscarriage of justice.

European arrest warrant

The primary instrument facilitating this peculiar state of affairs is the European arrest warrant (EAW). Fifteen years after the murder, a French judicial authority sidelined the DPP’s decision against prosecution by issuing an EAW for Bailey’s surrender to be prosecuted in France.

As a general rule, the Irish authorities are under a legal obligation to comply with a French EAW. The underpinning European Union legislation tempers that obligation by including optional grounds for refusal which protect the sovereign authority of a State over the prosecution of its own criminal offences. Accordingly, a State can refuse to execute an EAW from another EU state where the offence in question was committed on its own territory. Similarly, it can refuse where its own DPP has already decided not to prosecute for the same offence. Both of these situations are clearly applicable in the Bailey case, and should have been fatal to any attempt to surrender him to France.

Incredibly, the Government declined to incorporate these options into Irish law, seemingly preferring to cede sovereignty over the prosecution of Irish crime to the demands of other EU member states. Even more disturbing is the manner in which it has done that.

When the Bill implementing the EAW was first introduced in the Oireachtas in 2003, it strongly asserted Irish control over the prosecution of Irish criminal offences. It contained an absolute prohibition on the execution of an EAW where the offence was committed in Ireland. Strangely, and without explanation, this provision was quietly dropped in the course of the Bill’s passage. The net effect is that the Irish authorities cannot resist a French EAW solely on the basis that the offence in question was committed in Ireland. The implicit surrender of sovereignty is obvious.

Ireland also abandoned the option of refusing to execute an EAW where the DPP has decided not to prosecute for the same offence. The manner in which it did so is even more unsettling. Although included in the original Irish EAW legislation in 2003, this optional ground of refusal was repealed only 15 months later as part of changes to anti-terrorism legislation.

The official explanation given at the time for the abrupt U-turn was that it was necessary to facilitate the prosecution of extra-territorial offences abroad where most of the evidence was located in the other State which issued the EAW. That, of course, was the exact opposite of the situation in the Bailey case where the crime, the victim, the suspect and the evidence were all located in Ireland. The effect, however, is that the Irish authorities cannot resist the French EAW by asserting that the DPP, who is best placed to make the call, has decided that there is insufficient credible evidence to prosecute Bailey. Once again, the sacrifice of Irish sovereignty over Irish crime and criminal process is needless and stark.

Bailey has only avoided surrender to France because of the Supreme Court’s interpretation of another optional ground of refusal which Ireland has adopted. This arises where the offence is extra-territorial to the issuing state (France), and the executing state (Ireland) does not exercise extra-territorial jurisdiction over the same offence.

Bizarre consequence

Much to the surprise of the Government, the Supreme Court decided that this refusal option applies even where the offence in question was actually committed in Ireland. The net effect is that Bailey cannot be surrendered to France as he is not an Irish citizen and Ireland does not exercise extra-territorial jurisdiction over murder committed abroad unless the accused is an Irish citizen. A bizarre consequence of the Supreme Court’s decision is that Bailey was saved from surrender because he is English. If he was Irish, he would have been surrendered.

In another peculiar twist the Government seems to have moved to get around the Supreme Court’s decision by expanding Irish extra-territorial jurisdiction to Irish residents (such as Bailey) accused of murder. Once again, it has done this quietly under cover of legislation on a different subject; namely the Istanbul Convention on combating violence against women and domestic violence.

Yet another disturbing feature of this extraordinary case is that Bailey will be tried in his absence in a French court largely on the basis of the ‘evidence’ gathered in the “thoroughly flawed and prejudiced Garda investigation”. Thanks to the exceptional willingness of the Government to cede the prosecution of Irish crime to other states, Bailey will be denied the integral checks and balances of a single national criminal procedure. Instead, he will be exposed to a monstrous hybrid in which all of the unsafe fruits of the Garda investigation will pass unfiltered into the French trial process to his extreme prejudice. Through this mixing and matching of an Irish police investigation with a French trial, he will be exposed to an acute risk of a serious miscarriage of justice.

None of this inspires confidence in the sovereign integrity of Irish criminal process or its commitment to uphold the highest standards of justice in the face of foreign demands. Nor can it deliver justice for Sophie Toscan du Plantier.