Wednesday 13 December 2017

Q&A: How likely is it that he will be extradited?

Chief Justice Susan Denham Photo:
Chief Justice Susan Denham Photo:
Shane Phelan

Shane Phelan

A hearing will take place on Monday to decide whether Ireland should extradite Ian Bailey to France on foot of a European arrest warrant for the murder of French woman Sophie Toscan du Plantier in west Cork in 1996.

How does the warrant work?

EU member states can use the European arrest warrant to seek the extradition of a person who is wanted in that country in relation to a crime.

The warrant may seek the return of the person to stand trial, face sentencing after conviction, or serve a sentence already handed down by a court in that country. It was introduced into Irish law in 2004 following the enactment of the European Arrest Warrant Act 2003.

The warrant is sent to a central authority in the country where the suspect is living and it is up to that authority to process it. In Ireland the central authority is the justice minister.

European arrest warrants can only be considered if they are issued by a judge or magistrate. In the case of Ian Bailey, the warrant was issued by a magistrate in Paris.

Once a request has been received it must be assessed and if the warrant is in order, it must then be brought to the High Court for endorsement before a suspect can be extradited.

The application seeking the endorsement is brought on behalf of the justice minister by the chief state solicitor.

The High Court may request further information or documentation from the issuing judicial authority or the issuing state in order to enable it to make a decision.

Will Mr Bailey be taken into custody while the High Court decides his fate?

No. An arrest can only be made if the warrant is endorsed by the High Court. Should the warrant be endorsed, bail can be applied for pending the outcome of any appeal.

How likely is it that Mr Bailey will be extradited to France and what can he do to avoid it?

In Mr Bailey's case the odds are in his favour, thanks to a previous Supreme Court ruling. He can oppose the extradition request and offer arguments as to why he should not be sent to France. If he loses in the High Court, an appeal can be made to the Supreme Court on a point of law.

He has been down this road before. A previous European arrest warrant was endorsed by the High Court in 2010 but was subsequently firmly rejected by the Supreme Court in 2012.

What arguments is he likely to make?

Mr Bailey's legal team will argue that French investigators have brought charges largely based on the same information available to An Garda Síochána.

The Director of Public Prosecutions decided the evidence was insufficient to support a murder charge.

An official in the office of the DPP also criticised the Garda investigation and identified evidence that pointed to Mr Bailey's innocence. His legal team will also argue that the Supreme Court has already ruled against his extradition.

Why did the Supreme Court decide he shouldn't be extradited the last time a warrant was issued by the French?

A five-judge Supreme Court overturned the High Court ruling after it found the warrant to be invalid.

Chief Justice Susan Denham said it was clear that while a decision had been made in France to charge Mr Bailey, no decision had been made to try him for murder. The European Arrest Warrant Act required such a decision to be made before the request could be endorsed.

Four of the judges upheld Mr Bailey's argument that the act prohibits extradition in circumstances where the alleged offence was committed outside French territory. They found that there was no reciprocal provision in Irish law allowing an Irish prosecution for the murder of an Irish citizen outside of Ireland.

There now appears to have been a formal decision to try Mr Bailey, so that issue seems to have been dealt with. But it remains to be seen if the French can surmount the reciprocity issue.

Irish Independent

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