State not trying to 'usurp' courts by seeking reference to Europe in Ian Bailey case, lawyers argue

Mr Bailey (aged 60) of The Prairie, Liscaha, Schull, west Cork, denies any involvement in the death of Ms du Plantier, who was found dead outside her holiday home in Schull in December 1996.

French authorities previously sought the surrender of Mr Bailey in 2010 but this application was refused by the Supreme Court in 2012. A second extradition request was transmitted to Ireland last year, seeking the surrender of Mr Bailey for alleged voluntary homicide.

French authorities have previously prosecuted people for crimes committed against French citizens outside of France. Mr Bailey, who claims gardaí tried to frame him for the killing of Ms du Plantier, could be tried in France in his absence.

Opposing surrender on Wednesday, counsel for Mr Bailey, Garrett Simons SC, said his client had a “very straightforward and obvious case”.

Mr Simons said there was “no way around” the Supreme Court decision in 2012 which identified an “absolute jurisdictional bar” to Mr Bailey's extradition to France in relation to the alleged offence.

He said section 44 of the European Arrest Warrant Act 2003, which implemented the European Framework Decision on extradition between member states, was determined by the Supreme Court as an “absolute bar” to Mr Bailey's surrender and that continued to apply.

A five-judge panel of the Supreme Court refused to surrender Mr Bailey in 2012 and four of the five judges upheld Mr Bailey's argument that section 44 prohibits surrender because the alleged offence was committed outside French territory and Irish law does not allow prosecution for the same offence when committed outside its territory by a non-Irish citizen.

Applying for the surrender of Mr Bailey today, counsel for the Justice Minister, Robert Barron SC, submitted that the legal concept of 'Issue Estoppal', which prohibits legal actions in cases already decided, does not apply to criminal law.

The State are asking the High Court to refer the Supreme Court's 4-1 interpretation of Section 44 to the European Courts of Justice for determination.

Mr Barron said O'Donnell J, the single dissenting Supreme Court judge on the Section 44 matter, was correct in his interpretation of the framework decision and the act; That the majority Supreme Court interpretation was "incorrect" and that it would be appropriate to have a reference from the High Court to the European Courts on the matter, Mr Barron submitted.

He said it was “recognised by the Supreme Court” that there were two interpretations and the only way it could be resolved conclusively was by the court in Luxembourg.

Mr Justice Tony Hunt remarked that “somebody, somewhere” had apparently decided that the Supreme Court got it “catastrophically wrong” and the way to correct it is to get the European Courts to tell the Supreme Court they got it wrong.

It appeared as though the application was an “exploration of a method by which the Supreme Court decision might be revisited,” Mr Justice Hunt remarked.

Mr Barron agreed his submission was that the High Court should refer the matter to Europe because the Supreme Court got it wrong. However, “with respect,” Mr Barron said, nobody was trying to “usurp” the courts and there was “no ulterior purpose”. He stressed he was simply making legal submissions.

Mr Barron agreed the High Court did not need to go further than O'Donnell J's dissenting view but denied he was asking the High Court to decide the Supreme Court majority - four other judges including the Chief Justice - got it wrong.

Mr Justice Hunt asked Mr Barron what the French authorities had been doing between the Supreme Court's judgment in 2012 and the decision to issue a new warrant in respect of Mr Bailey in 2016.

“When did Mr Bailey become a triable person rather than a chargeable person,” the judge asked.

Mr Barron referred to the court of assize in July 2016 and said an enquiry had been made of the French authorities.

The case resumes in the High Court before Mr Justice Hunt on June 14.

Opposing surrender on Wednesday, Garrett Simons SC, for Mr Bailey, said it was an “abuse of process” for the Minister, who has litigated an issue all the way to the Supreme Court, to seek to litigate the issue again, Mr Simons submitted, adding that it was in the public interest that there be finality to litigation.

He said the Minister was insulting the Irish courts, was not respecting the sovereignty of the Irish courts and was misunderstanding European law.

It was “extraordinary” that the Minister does not say the Supreme Court was wrong, Mr Simons said. The most the Minister could say was that Section 44 was “unclear” but that could not provide a basis for setting aside a Supreme Court judgment.

He said case law showed there was an obligation on a central authority, in this case the Minister, to exercise a level of discernment with respect to extradition requests.

He referred to the right of an individual to be free from harassment and free from “vexatious litigation”.

Mr Simons said the public interest in facilitating extradition requests was to avoid the creation of “safe havens” but Mr Bailey had lived in Ireland for 25 years and was always at hazard of being prosecuted. The alleged offence took place here and Mr Bailey would have been prosecuted here "had there been any evidence".

He submitted extracts from the 'Fennelly Commission' set up in light of the recording of phone calls to An Garda Siochanna, said that was “part of the background” and noted that the Minister had “nothing to say about that”.

Further to his submission that the application to surrender Mr Bailey was an “abuse of process”, Mr Simons recounted the concerns expressed by the former Director of Public Prosecutions, that the Garda investigation into the death of Ms du Plantier was thoroughly flawed and prejudicial.

He said the former DPP's concerns were shocking and struck a blow against the fundamentals of the rule of law in Ireland.

One would expect a robust response from the Minister to those concerns in this application, Mr Simons said, but 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" and the High Court was “blithely” being told “nothing to see here”.

Mr Simons said there was a point when trust and confidence between nations in relation to extradition requests "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, Mr Simons said. That's not trust and confidence and it was an abuse of process to do it, he said.

Presumably, he said, the French authorities were going to seek to rely on the fruits of the “flawed” garda investigation in their own investigation, Mr Simons said, and he referred to the late Mr Justice Adrian Hardiman's comments in the Supreme Court about an Irish resident (Mr Bailey), long established in Ireland, being “forcibly” delivered to France for an offence allegedly committed in Ireland.

Counsel for the Minister for Justice, Robert Barron SC, said there were no grounds for criticism of the Minister.

Mr Barron said extradition was a process between judicial authorities and the Minister's role is to produce warrants to the courts for endorsement. Once the warrant is received it must be presented to the court for endorsement.