Court asked if absence of DPP prosecution bars extradition

Irish Times
14.04.2011
By MARY CAROLAN

IAN BAILEY has secured leave to appeal to the Supreme Court against an order for his extradition to France in connection with the killing of Sophie Toscan du Plantier in Co Cork 14 years ago.

Mr Justice Michael Peart ruled yesterday that an issue arose from his High Court judgment in Mr Bailey’s case which was of such exceptional public importance it should be determined by the Supreme Court.

That issue is whether the surrender of a person is prohibited by section 44 of the European Arrest Warrant Act 2003 where the offence for which surrender is sought is committed in this jurisdiction and where the victim is a national of the state requesting extradition (in this case France) which seeks to exercise an extraterritorial jurisdiction to prosecute the offence under its own laws when the DPP has decided not to prosecute the person.

Lawyers for Mr Bailey had argued French extraterritorial jurisdiction is very extensive and the Irish courts should scrutinise it carefully.

Given his decision to certify the point of law, the judge placed a stay on the order for extradition pending the outcome of the Supreme Court appeal and remanded Mr Bailey on bail to tomorrow when he will have to enter a fresh bail bond. When he does so, he will remain on bail pending the outcome of the Supreme Court appeal.

The judge directed that a notice of appeal should be lodged by 4pm tomorrow and also awarded costs of the High Court proceedings to the State against Mr Bailey. A stay on that costs order applies pending the appeal.

In his High Court ruling last February permitting extradition, Mr Justice Peart found the warrant issued by the French authorities clearly stated its purpose was to “prosecute” Mr Bailey; that it did not state the purpose was “investigation”; and that it indicated the French view that there was sufficient evidence to charge Mr Bailey.

The French procedure requires Mr Bailey to be brought before an examining magistrate and given the opportunity to respond to the evidence before any decision is made about whether to put him on trial or not.

Under the European Arrest Warrant Act 2003, an appeal against an extradition order may only be brought if the High Court certifies the case raises points of law of such exceptional importance the public interest requires those points should be determined by the Supreme Court.

Mr Bailey’s lawyers argued the case raised three such points, while the State argued no point of law arose justifying certification.

Full article

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