A request to extradite Ian Bailey to France for a third time, where he is facing a 25-year prison sentence for the murder of filmmaker Sophie Toscan du Plantier, is an "abuse of process", his lawyers have told the High Court.
Ronan Munro SC, for Mr Bailey, today argued that his client has an "ironclad right" not to be surrendered to France and it had not been threatened in any way by subsequent developments in law.
This is the third time French authorities are seeking Mr Bailey’s surrender in relation to the death of Ms du Plantier, whose badly beaten body was found outside her holiday home in Schull in December 1996.
Mr Bailey (63), with an address at The Prairie, Liscaha, Schull, west Cork, was convicted of the French woman’s murder in his absence in a Paris court in May 2019. The three-judge Cour d’Assises (criminal trial court) in Paris accordingly imposed a 25-year prison sentence on Mr Bailey in his absence. The Englishman, who denies any involvement in the mother-of-one’s death, did not attend the French court and had no legal representation in the proceedings, which he has described as a “farce”.
Mr Bailey was arrested at the Criminal Courts of Justice Building on foot of a European Arrest Warrant in December 2019. He was remanded on bail after a High Court judge subsequently endorsed the third European Arrest Warrant (EAW) seeking his extradition to France.
Mr Bailey is facing a 25-year prison sentence for the murder of Ms du Plantier and the three-day full extradition hearing, where he will contest the request for his surrender, commenced in the Irish High Court today, a day after Bastille Day in France.
At the outset of this morning's hearing, counsel for Mr Bailey, David Conlan Smyth SC with Ronan Munro SC and Marc Thompson BL, said Mr Munro would make legal submissions concerning the issue of "res judicata" - a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties - and Mr Conlan Smyth would deal with Mr Bailey's fair trial rights.
Opening an application for surrender, counsel for the Minister for Justice, Robert Barron SC with Leo Mulrooney BL, took Mr Justice Paul Burns through the formalities of the EAW. Mr Barron said the EAW had been filled out by the French authorities indicating that Mr Bailey did not appear for his trial last year and he will have a right to a retrial if surrendered.
Opposing an application for Mr Bailey's surrender to France, Mr Munro said the central submission in the hearing was that there is a binding judgment from the Supreme Court in 2012 which prohibits the surrender of his client based on section 44 of the European Arrest Warrant Act 2003, which remains untouched and intact.
Section 44 states that a person shall not be surrendered under this Act if the offence specified in the EAW was committed in a place other than the issuing State and the offence does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State.
The lawyer submitted that his client had an "ironclad right" as well as an "unassailed right" not to be surrendered to France.
Mr Munro argued that the State's legal submissions set out that the Supreme Court decision in 2012 can be distinguished due to a change in the law with the Criminal Law (Extraterritorial Jurisdiction) Act 2019. "I think what they mean is if an Englishman ordinarily resident in Ireland is sought today for the murder of Ms du Plantier in 1996 then that person wouldn't have the benefit of the interpretation of section 44 because of legislative change," said Mr Munro, adding that he did not accept this proposition for one second.
The barrister said he "threw down the gauntlet" to Counsel for the Minister for Justice, Mr Barron, to show why legislative change dis-applied the Supreme Court decision. In addition, Mr Munro said he did not accept that the Criminal Law Act 2019 brought about a material change.
Mr Justice Burns interjected at this stage and asked if the change in the law last year did not materially affect the decision of the Supreme Court in 2012 then was the High Court bound by that. In reply, Mr Munro said it was and pointed out that the 2019 legislation had not sought to "dismantle" or set aside Mr Bailey's "vested right" not to be surrendered.
Furthermore, Mr Munro submitted that a third set of proceedings and a third attempt to have his client prosecuted was "an abuse of process", something the court must apply a very high level of scrutiny to. "The very fact that there is a third set of proceedings is the very indicator that an abuse of process has been taking place," he said.
Mr Munro also told the High Court that his client had sworn an affidavit setting out his objections to being surrendered to France as well as certain factual matters particularly in relation to his health. In the affidavit, Mr Bailey said he had nothing to do with the murder of Ms du Plantier and had been in a relationship with Ms Jules Thomas for over 25 years.
He spoke about his difficulty in finding work as a journalist as a result of the direct consequences of the false allegation made against him. He said he suffered from depressive episodes, which can manifest in outbreaks on his skin and also had panic attacks. The seriousness of the allegation, the manner of the garda investigation and the extradition requests had placed considerable strain and unwelcome attention on himself and his family, he said.
Mr Bailey said that whilst he has not been the subject of criminal court proceedings in Ireland, he has been subject to the criminal process and his standing had suffered greatly in the small rural community where he lives. He tries not to dwell "on being hunted" and writing poetry has had a cathartic effect on him, he said.
His sleep patterns have been disturbed and he has a reoccurring dream of being rearrested and confined in a cell saying: "It is so realistic that is why I reawaken and it can take me some time to recover."
Furthermore, Mr Bailey said he has been greatly restrained and unable to travel freely since the issuing of the EAW in 2010. He explained that he was unable to visit his mother in a nursing home in the UK or attend her funeral, something he said "had been one of the cruelest aspects of this entire process".
Mr Munro said one of the unique features of this case is that the French trial was based primarily on the "fruits" of the garda investigation. Mr Munro also raised the issue that the French authorities did not seek to invite Mr Bailey to attend his trial in 2019 and his solicitor, Frank Buttimer, was not invited either. The barrister said this seemed strange and described it as an "unusual feature" of the trial.
Mr Munro questioned why the 2017 proceedings were brought, where it must have been obvious to a competent lawyer that the Supreme Court had blocked the way. "If there is an absence of an abuse of process in the past, it is clearly relevant to this third set of proceedings," he said.
The lawyer relied on the 2012 Supreme Court case of Minister for Justice v Tobin, where he said the finality of proceedings was of fundamental importance to the administration of justice and the courts ensure there is no abuse of this.
In conclusion, Mr Munro said the only statute mentioned in this case - the Criminal Law Act 2019 - was a straw in the wind and this act was "blowing around in the wind". Mr Bailey's declared right under section 44 prohibited his surrender to France and nothing that has happened since had come close to prohibiting that right, he said.
French authorities previously sought the surrender of Mr Bailey in 2010 but this application was refused by the Supreme Court in 2012, which held that section 44 prohibited surrender because the alleged offence was committed outside French territory and Irish law did not allow prosecution for the same offence when committed outside its territory by a non-Irish citizen.
A second French extradition request in respect of Mr Bailey was dismissed as an “abuse of process” by the High Court in July 2017. On that occasion, Mr Justice Tony Hunt held that the “unique features” of the case justified “termination” of the proceedings. He said the Minister was “estopped” or halted from obtaining an order for Mr Bailey's surrender in light of the Supreme Court's judgement in 2012 on identical relevant facts.
Mr Bailey and filmmaker Jim Sheridan were present in court for today's hearing.
Mr Munro will continue his submissions when the extradition hearing continues tomorrow before Mr Justice Burns. It is expected to last three days.