Ian Bailey case heading towards miscarriage of justice
By Dermot PJ Walsh on 27/05/19Share:
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
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.
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 Although included in the original Irish EAW legislation in 2003, this optional ground of refusal was repealed only 15 months later as part of changes to anti-terrorism legislation.
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.
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.
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.