Supreme Court allows appeal against surrender order, dismissing Minister's application due to flawed domestic investigation.

THE SUPREME COURT

[Appeal No: 174/11]

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O’Donnell J.

Between/

The Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Ian Bailey

Respondent/Appellant

Judgment delivered on the 1st day of March, 2012 by Murray J.

This is an appeal by the above named appellant against an order of the High Court made pursuant to the provisions of the European

Arrest Warrant Act, 2003, as amended, directing his surrender to France for the purpose of being prosecuted and tried there for an

offence of murder alleged to have been committed on the night of the 22nd/23rd December, 1996 in the County of Cork.

The Order of the High Court was made on foot of an application by the Minister, the respondent in this appeal, pursuant to the

provisions of the Act of 2003. The application was for an order for the surrender of the appellant on foot of a European Arrest

Warrant issued by a judicial authority in France. The European Arrest Warrant Act, 2003 has been substantially amended in particular

by the Criminal Justice (Terrorist Offences) Act, 2005 and the Criminal Justice (Miscellaneous Provisions) Act, 2009. References to the

Act of 2003 refer to that Act as amended except where otherwise indicated. That Act gives effect in national law to the Council

Framework Decision of 13th June, 2002 on the European Arrest Warrant and the Surrender Procedures between Member States

(2002/584/JHA) (hereinafter the ‘Framework Decision’).

The European Arrest Warrant states that surrender is sought for the purpose of conducting a prosecution against the appellant on a

charge of the alleged murder of Mme. Sophie Toscan du Plantier, a French citizen.

The background of facts and arguments of the parties have been outlined in the judgment of the Chief Justice and therefore I will

only refer to certain salient features for the purposes of this judgment.

One of the singular aspects of this case is that the victim of the murder alleged in the EAW was a French citizen. That fact is crucial

to the competence or jurisdiction of the French courts to try the appellant. Under French law France exercises extra-territorial

jurisdiction in respect of, inter alia, the offence of murder where the victim is a French citizen. As will be noted later, Ireland exercises

extra-territorial jurisdiction also in respect of the offence of murder but this is exercised not on the basis of the citizenship of the

victim but on the basis of the alleged perpetrator of the crime being an Irish citizen. Otherwise, the murder of an Irish citizen in

another country does not constitute an offence under Irish law. In this case the appellant is a British citizen and does not have Irish

or French citizenship.

In this respect the High Court judgment cites article 113.7 of the Penal Code of France which provides:

"French Criminal law is applicable to any felony, as well as to any misdemeanour punished by imprisonment, committed

by a French or foreign national outside the territory of the French Republic, where the victim is a French national at the

time the offence took place."

Other special features of this case relate not only to the fact that the crime was committed in Ireland with no foreign connection

other than the citizenship of the victim and that of the alleged perpetrator, the appellant, but that the death of Mme. du Plantier was

the subject of a full and extensive police investigation by An Garda Síochána, arising from which comprehensive files were ultimately

submitted to the Director of Public Prosecutions (hereafter the D.P.P.) so that he could decide whether or not a prosecution should

be brought against the appellant before the courts of this country.

In the event the D.P.P. decided that no prosecution should be brought on the grounds that the garda file did not disclose the

existence of sufficient evidence against the appellant which would justify charging him with any offence arising from the death of

Mme du Plantier. It is not in issue, at least for the purposes of these proceedings, that the death of Mme du Plantier resulted from an

unlawful killing.

The decision of the D.P.P. that criminal proceedings should not be brought against the appellant in respect of the death in question

would have been a manifest and complete bar to the surrender of the appellant by virtue of s.42 of the Act of 2003 but for an

amendment to that section by s.83 of the Criminal Justice (Terrorist Offences) Act, 2005.

Section 42(c) provided that a person should not be surrendered under the Act if the D.P.P. had decided not to bring proceedings

against him for an offence consisting of an act that constituted an offence specified in the European Arrest Warrant.

Section 83 of the Act of 2005 amended section 42 in substance by re-enacting the section with the omission of paragraph (c) just

referred to. So section 42 of the Act as amended only contains a prohibition on the surrender of a person if the D.P.P. (or the

Attorney General) is considering but has not yet decided whether to bring criminal proceedings or, such proceedings have been

brought against the person sought in respect of the relevant offence. It is not disputed that s.42, in its amended form has no

application to the circumstances of this case. What is contended is that the appellant it entitled to the benefit if s.42(c) in its original

form since that section was law at the time the D.P.P. decided not to prosecute him.

The State on the other hand asserts that only s.42 in its currently amended form applies so that there is no bar on this ground to the

appellant's surrender.

This appeal comes before this Court on foot of a point of law of exceptional public importance as certified by the High Court and

which is referred to in the judgment of the Chief Justice. Having thus had liberty to appeal to this Court the appellant was entitled to

advance wider grounds of appeal against the decision of the High Court to order his surrender. There were essentially four grounds of

appeal which are as follows:

(i) His surrender is prohibited by paragraph (c) of s.42 of the Act of 2003 notwithstanding its amendment by s.83 of

the Act of 2005. Paragraph (c) of s.42 in the Act of 2003 provided that a person could not be surrendered if the

D.P.P. had decided not to bring proceedings against the person concerned for an offence corresponding to the one

in the European Arrest Warrant. Paragraph (c) was removed from the Act by s.83 of the Act of 2005 but since a

decision had been taken in 1997 by the D.P.P. not to prosecute the appellant a proper interpretation and application

of paragraph (c) of s.42 prohibited the appellant's surrender notwithstanding the amendment of the 2005 Act.

(ii) Section 44 of the Act of 2003 provides "A person shall not be surrendered under this Act if the offence specified

in the European Arrest Warrant issued in respect of him or her was committed or is alleged to have been

committed in a place other than the issuing state and the act or omission of which the offence consists 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 appellant contends that s.44 constitutes the prohibition against his surrender on the grounds that the offence

specified in the European Arrest Warrant is one to which s.44 applies since it was committed in a place other than

the issuing State, France, and if, as it is put on his behalf, the same offence was committed outside of Ireland, for

example, it would not constitute an offence under the laws of the state by virtue of having been committed in a

place other than the State.

(iii) For his third ground of appeal the appellant relies on s.21A of the Act of 2003 as inserted by s.79 of the Act of

2005.

Section 21A, ss.1, provides that "Where a European Arrest Warrant is issued in an issuing state in respect of a

person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the

person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that

offence in the issuing state." (emphasis added)

The appellant contends that on the evidence and material placed before the High Court and further on the evidence

and material placed before this Court concerning the circumstances in which the European Arrest Warrant was

issued this Court must be satisfied that no decision has yet been made (a) to charge or prosecute the appellant

with or, in any event, (b) to try him, for the offence specified in the warrant. Accordingly the Court must refuse the

surrender of the appellant.

(iv) The last and fourth ground of appeal is based on a contention by the appellant that the surrender on foot of

the European Arrest Warrant would constitute an abuse of the process of the courts. For present purposes it is

sufficient to state that this is based on a range of matters including delay, that the surrender request is allegedly

based on false factual information and on the basis of material and information which was the product of an

investigation which it was discovered, subsequent to the High Court hearing, has been described by the then

Director of Public Prosecutions as a Garda investigation which was "thoroughly flawed and prejudiced". In this

context the appellant relies on s.37 of the Act of 2003. That section prohibits surrender under the Act if to do so

would, inter alia, be in breach of the State's obligation under the European Convention on Human Rights or any

provision of the Constitution.

In this judgment I propose to address principally the issue raised by the appellant pursuant to s.21A of the Act of 2003, namely as to

whether there was a decision by the French authorities to prosecute and try the appellant within the meaning of the Act of 2003.

Prohibition of surrender where no decision to charge or to try the appellant (s.21A)

Article 1.1 of the Framework Decision defines and sets out the purpose of a European Arrest Warrant in the following terms:

"1. The European Arrest Warrant is a judicial decision issued by a Member State with a view to the arrest and surrender

by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a

custodial sentence or detention order." (emphasis added)

Article 1.2 creates the obligation of the Member State to execute any European Arrest Warrant "on the basis of the principle of

mutual recognition and in accordance with the provisions of this Framework Decision".

Section 10 and s.16 of the Act of 2003, as amended, give effect to that obligation.

Section 10 provides:

"Where a judicial authority in an issuing state issues a

European Arrest Warrant in respect of a person—

(a) against whom that state intends to bring proceedings for the offence to which the European Arrest Warrant

relates, or

(b) who is the subject of proceedings in that state for an offence to which the European Arrest Warrant relates,

…

that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested

and surrendered to the issuing state." (emphasis added)

Section 16(1) provides that the High Court, once it is satisfied as to certain formal matters such as the identity of the arrested

person and the due indorsement of the warrant, may make an order surrendering the person to the Requesting State.

There is however, in s.16(1)(d) a proviso which is of direct relevance to the issue in this case.

The High Court may only make an order for the surrender of a person provided that:

"(d) The High Court is not required, under section 21A, 22, 23 or 24 (inserted by ss. 79, 80, 81 and 82 of the

Criminal Justice (Terrorist Offences) Act, 2005), to refuse to surrender the person under this Act, …" (emphasis

added)

Of the sections referred to in paragraph (d) only s.21A is relevant and that is the section on which the appellant relies in this case.

Section 21A prohibits the surrender of a person the subject of a European Arrest Warrant if the Court, that is to say the High Court,

or this Court on appeal, is satisfied that a decision has not been made to charge the person with, and try him or her for the offence

specified in the warrant.

Section 21A states as follows:-

"21A.—(1) Where a European Arrest Warrant is issued in the issuing state in respect of a person who has not been

convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a

decision has not been made to charge the person with, and try him or her for, that offence in the issuing state.

(2) Where a European Arrest Warrant is issued in respect of a person who has not been convicted of an offence

specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for,

that offence in the issuing state, unless the contrary is proved." (emphasis added)

It is self-evident that the wording of s.21A is significantly different from the language used in Article 1 of the Framework Decision to

which s.10 and s.16 otherwise purport to give effect. As has been seen Article 1 speaks of surrender for the purpose "of conducting a

criminal prosecution" and s.10 provides that a person "shall" be surrendered to the issuing state in accordance with the provisions "of

this Act and the Framework Decision" where that person "is the subject of proceedings in that State for an offence to which the

European Arrest Warrant relates".

Entirely consistent with that section and the Framework Decision, s.11(1) of the Act of 2003 requires that a European Arrest Warrant

shall "be in the form set out in the annex to the Framework Decision".

That form, as contained in that annex, only requires the judicial authority of the requesting State to state "I request that the person

mentioned below be arrested and surrendered for the purpose of conducting criminal prosecution of executing a custodial sentence

or detention order."

(Self-evidently we are only concerned here with a request for the purpose of conducting a criminal prosecution.) The terminology

used in the French version of that form (and in Article 1.1 of the Framework Decision) is "poursuites penal".

European Arrest Warrant in this case is in the form provided for in the annex to the Framework Decision and required by s.11 of the

Act of 2003.

In fact in virtually all cases in which an order for surrender has been made pursuant to the Act of 2003, have been made on foot of

warrants which stated no more than that the warrant was issued for the purpose of conducting a criminal prosecution, without more.

These were all considered to conform to the requirements of the Act of 2003 and the Framework Decision.

On the other hand s.21A appears to create a dichotomy. It is a curiously constructed provision. Subsection 2 of s.21A creates a

presumption in favour of a European Arrest Warrant issued in respect of a person who has not been convicted of an offence. That

subsection provides that it shall be presumed, where such a warrant is issued, that the requesting judicial authority has made a

decision to charge the person with, and try him or her for the offence in question. It is not a presumption that the warrant has been

issued for the purpose of conducting a criminal prosecution but rather that a "decision" has been made to charge the person and try

him.

That presumption may be rebutted and the surrender must be refused if the Court is satisfied that such decisions have not been

made, either no decision to charge or no decision to try that person. The fact that the warrant has been issued for the purposes of

conducting a criminal prosecution within the meaning of Article 1.1 of the Framework Decision or that the person is someone whom

the requesting State "intends to bring proceedings for an offence" (in the language of s.10 of the Act) is not sufficient, in those

circumstances, to permit an order for surrender to be made.

The Framework Decision does not make it a pre-condition to surrender that the requesting state has made a decision "to try" the

requested person.

I consider it useful to address the issues raised by the appellant in this context in two stages namely:

(a) Was the European Arrest Warrant issued "for the purposes of conducting a criminal prosecution"?

(b) Was there a decision to charge and try the appellant for the offence of murder?

"For the purposes of conducting a criminal prosecution"

If it were the case that the European Arrest Warrant in this matter was not issued for the purpose of conducting a criminal

prosecution then of course, on that ground alone, the application would fail for non-compliance with Article 1.1 of the Decision and

s.10 of the Act of 2003.

Before addressing that particular aspect of the matter I think it appropriate to make a few general comments.

It is a long established principle of extradition law that persons are not extradited for the purposes of questioning them as suspects

but for the purpose of charging and prosecuting them with a criminal offence so that they may be brought to trial in a Court of law.

That principle is also reflected in the system of surrender established by the Framework.

The terms of the Framework Decision and the Act make it clear that surrender on foot of a European Arrest Warrant may only be

applied for and granted for the purposes of prosecuting someone for a criminal offence and this excludes the surrender of any person

for the purposes of being investigated by the investigative authorities, such as the police or a judge, where no decision to conduct a

prosecution has been taken. Thus an application for surrender because the police concerned wish to "eliminate the person from their

enquiries" or wish the person concerned to "assist them with their enquiries" would have to be dismissed as ill-founded. There is no

issue between the parties on this underlying principle.

Thus a person cannot be surrendered pursuant to the Act of 2003 solely because he or she is suspected of having committed an

offence and the relevant authorities wish to question the person concerned or have him or her assist them in one form or another in

their enquiries or investigations. This is so irrespective of whether the authorities concerned are judicial or police.

It may be said generally that once the commission of a serious criminal offence is discovered it is followed by a police inquiry, whether

or not directed by a superior authority such as a public prosecutor or an investigating magistrate, with a view to identifying, on the

basis of evidence admissible in a court of trial, the person or persons who should be charged with the offence and then brought to

trial.

Thus, and again one is speaking in general terms, police inquiries or a judicial investigation may commence with no suspects, a range

of suspects or a particular suspect, depending on the circumstances in which the crime was committed and information as known to

the police.

As evidence is gathered there comes a point, assuming such evidence is of sufficient weight and admissible in a court of law, when

the appropriate authority decides that a person, perhaps hitherto a suspect, should be charged with an offence, then that person

becomes an accused rather than a suspect. The purpose of charging that person with the offence concerned is to put him or her on

trial so that if he or she pleads guilty or is convicted at trial, appropriate penal sanctions will be imposed.

A decision to charge a particular person with a specific criminal offence is normally the point at which a prosecution is commenced.

There is usually, if not invariably, a distinction between the initial decision to prosecute and a decision that the accused should be

put on trial.

For example, in Ireland a decision whether or not a person should be prosecuted for an indictable criminal offence is normally taken by

the Director of Public Prosecutions. Such a decision taken by the D.P.P. is a decision as to whether a person should be charged and

the particular offence which should be the subject matter of the charge. The D.P.P.'s own published guidelines state "A prosecution

should not be instituted unless there is a prima facie case against the suspect. By this is meant that there is admissible, substantial

and reliable evidence that a criminal offence known to the law has been committed by the suspect. The evidence must be such that

a jury properly instructed on the relevant law, could conclude beyond reasonable doubt that the accused was guilty of the offence

charged".

Thus, in this country, the prosecution is initiated by a decision to charge. For the purpose of proceeding further with the prosecution

the person is invariably brought before a judge of the District Court on the charge, or charges, specified by the D.P.P. (There are also

the procedures by which a person to be charged is brought before the Special Criminal Court but this is not relevant for present

purposes). In principle, the Gardaí have, in many circumstances, the power to arrest and charge a person with an indictable offence

and bring the accused before the District Court for that purpose, although in practice the directions of the D.P.P. are usually sought

before such a charge is brought. When a prosecution is initiated by the decision to charge a person with a criminal offence he or she

does not have the status of a suspect but one of an accused who is the object of a criminal prosecution.

When a prosecution has been initiated in the foregoing circumstances it is the District Court, a court of summary jurisdiction, which

must make the decision that the accused should be tried before the court of trial, the Circuit Court or the Central Criminal Court. That

is not a function of the D.P.P.

Before such a decision is made certain procedures must be followed in proceedings before the District Court. From the 19th century

until the amendment of the Criminal Procedure Act, 1967, in 1999 a court of summary jurisdiction had to decide whether the

prosecutor had sufficient evidence to justify putting an accused on trial. Under the Act of 1967 that procedure was known as a

preliminary examination. In the course of such proceedings the judge of the District Court was required to consider various

documents, including a statement of evidence that is to be given by each witness relied upon by the prosecution, the exhibits in the

case and any deposition or statement taken in the course of the preliminary examination proceedings. For that purpose both the

prosecution and the accused were entitled to give evidence on sworn deposition and also to require the attendance of any person,

including the prosecution witnesses, who could be examined or cross-examined on their evidence. The accused could also make an

unsworn statement to the Court.

Section 8 of the Act of 1967 provided that the accused could only be sent for trial before the court of trial if, at the conclusion of

the proceedings, the judge of the District Court was of the opinion that there was sufficient case to put the accused on trial. The

section also provided for the discharge of the accused and the termination of the prosecution in the event that the judge not being

satisfied that there was sufficient evidence to put the accused on trial for any indictable offence and the evidence before him did not

disclose any summary offence upon which the accused could be tried in the District Court.

If the District Court judge decided that the accused should be tried the Act expressly required him to make an order in writing and

sign it. It is that order, an order returning the accused for trial, which gave jurisdiction to the court of trial to try the accused.

That procedure was substantially modified by the Criminal Justice Act, 1999 and the preliminary examination procedures as contained

in the Act of 1967 was abolished.

Nonetheless, it remains the position under the Act of 1967, as amended, that where, as a result of a decision by the D.P.P. to

prosecute, a person is charged with an indictable offence that person must be brought before the District Court on such a charge and

it is for the District Court to decide that the accused should be put on trial. This is so even though the discretion of the judge of the

District Court is greatly limited by reason of the abolition of the preliminary examination as such. Nonetheless certain procedures must

be followed in District Court proceedings before the District Court can make an order that the accused stand trial. The first of these is

that the prosecutor, having consented to the accused being sent forward for trial, must serve on the accused certain documents

which include the charges against him, a list of the witnesses the prosecutor proposes to call at a trial and a statement of the

evidence that is expected to be given by each of them. Nonetheless there are circumstances in which the District Court may refuse

to send an accused forward for trial such as where he is found unfit to plead, as expressly provided in the amending legislation. The

District Court also has an inherent jurisdiction to ensure that the law has been complied with such as that the offence is one which is

known to the law. (See for example the judgment of this Court (unreported, 28 February 2012) in D.P.P. v. Devins). Moreover, if the

prosecutor refuses to give a consent to the accused being sent forward for trial the District Court may terminate the prosecution

proceedings by striking them out. The Court may also strike out the proceedings where the prosecutor has not served the relevant

document on the accused either within 42 days of the accused being brought before the District Court or within a more extended

period fixed by the Court.

In any event it remains the case that it is for the District Court to decide that the accused be tried and that it is the order of that

court that the accused should stand trial which confers jurisdiction on the court of trial to try the accused.

The foregoing procedures are described simply to illustrate that between the initiation of a prosecution following a decision to

prosecute there may be further procedures and proceedings of a substantive nature which must occur before there is an actual

decision that the accused should be put on trial for the offence or offences with which he or she is charged. Even though such

procedures or proceedings may result in a termination of the prosecution and a decision that the accused not be put on trial that

does not mean that there was no decision to conduct a prosecution against the accused. Once the D.P.P. has decided to prosecute

a particular person on a specified charge there is, in my view, a decision to conduct a prosecution against him such as would come

within the ambit of Article 1.1. This is so even if the accused is abroad and out of the jurisdiction and his surrender or extradition

must be obtained before he is actually charged and brought before the District Court on the charge or charges specified in the

decision to prosecute. (See statements to this effect by O'Donnell J. in MJELR v. Olsson as cited below).

I would add, as has been stated in Minister for Justice Equality and Law Reform v. McArdle [2005] 4 I.R. 420 and Minister for

Justice Equality and Law Reform v. Ollson (Supreme Court, 13 January 2011), the fact that there has been a decision to charge or

prosecute a person with an offence on the basis that there is sufficient evidence justifying such a step does not mean that police

enquiries or any investigation or gathering of evidence necessarily ceases. No-one suggests that a person may not be charged with

an offence until all possible evidence has been obtained or that a criminal investigation, by whomever conducted, cannot be

continued after a person has been charged. Thus it is relevant to bear in mind that the mere fact that there may be continuing

enquiries or investigations into the circumstances of an offence this would not of itself deprive the person concerned of his or her

status, so to speak, of an accused or as a person in respect of whom a prosecuting authority or a judicial authority was conducting a

criminal prosecution.

It is nonetheless the case that with 27 Member States of the European Union and a multiplicity of legal systems it may not always be

easy for a court in a requested country to ascertain whether a point has been reached in the criminal process of the requesting

country in the case concerned where a decision has been taken to prosecute the requested person or the point at which there has

been a decision to try.

The French European Arrest Warrant

For the purpose of addressing the first aspect of that issue the starting point must be the European Arrest Warrant. That states that

the warrant is issued "for the purpose of conducting a criminal prosecution" (poursuites penales). Therefore, prima facie it complies

with the requirements of the Act of 2003 and the Framework Decision as regards its purpose.

In respect of every European Arrest Warrant there is, what is often referred to as the underlying warrant, a domestic judicial decision,

to which the European Arrest Warrant seeks to give effect. Thus Article 8 of the Framework Decision requires, inter alia, that each

European Arrest Warrant should contain, "evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial

decision having the same effect". This is reflected in s.11(1)(d) of the Act of 2003 which requires that European Arrest Warrant shall

specify, inter alia, "that a warrant for his or her arrest or other order of a judicial authority in the issuing state having the same

effect has been issued in respect of " the offence in the warrant. That is a reference to the domestic order or warrant to which a

European Arrest Warrant seeks to give effect.

The form of the European Arrest Warrant as specified in the Framework Decision and referred to in s.11 of the Act of 2003 has a

specific section for the provision of such information. Paragraph (b) of that standard form contains the sub-heading "Decision on

which this European Arrest Warrant is based:".

In this particular European Arrest Warrant that portion of the warrant contains the following reference to the French underlying

warrant: "warrant for arrest or equivalent decision of justice: warrant for arrest issued on 16th February 2010 by Mr. Patrick

Gachon, Examining Magistrate at the High Instance Court of Paris for the purpose of criminal prosecution". As regards the sub-

heading "Enforceable judgment" the European Arrest Warrant goes on to state "warrant for arrest pursuant to s.131 of the Code of

Penal Procedure, dated 16th February 2010".

Moreover, in the further information given at paragraph (e) of the European Arrest Warrant it is stated "in the course of the

investigation carried out by the Garda, [sic] serious and convincing clues ("des indices graves et concordants") were accumulated

against a journalist named Ian Bailey, of such a nature as to justify that he be charged" ("mise en examen").

Accordingly, the European Arrest Warrant itself discloses that the European Arrest Warrant is based on a decision of the High

Instance Court of Paris to issue a warrant dated 16th February, 2010 for the arrest of the appellant for the purpose of a criminal

prosecution. The warrant further discloses that material placed before the investigating magistrate, Mr. Gachon, was sufficiently

serious and convincing as to justify that he be charged with the offence of murder.

The French arrest warrant was issued on the 16th February, 2010 and it was on the basis of that warrant that the European Arrest

Warrant was issued on February 19th 2010.

At the hearing of the appeal before this Court a document prepared and transmitted by the requesting judicial authority, the relevant

State Prosecutor in France, was admitted as part of the material before the Court. In that document the State Prosecutor sets out in

a very clear way the course which the criminal process has taken in this matter before the investigating judge or magistrate. A clear

description of the "investigative phase" or "phase d'instruction" in French criminal procedure is given.

In that document, entitled "Observations by the State Prosecutor of the Paris Tribunal de Grande Instance…", the requesting judicial

authority stated that such an arrest warrant by the investigating judge "can be issued if serious or corroborating circumstantial

evidences exist regarding a person which make it likely that he or she could have taken part, as perpetrator or accomplice, in

committing a crime." That document goes on to state "these are the same criteria which obliges the investigating judge to indict a

person when he or she is physically present."

This explanation or statement concerning the French criminal process was not put in issue.

Of course the appellant was not before the French court or within its jurisdiction and therefore could not be personally charged with

the offence and the judge was not obliged to actually indict him because the appellant, Mr. Bailey, was not physically present.

It is clear that the next step in the criminal process in France, however it is characterised, is that the appellant be arrested and

brought before the investigating judge as a person charged with the criminal offence of murder. Mr. Daniel Tricaud, a French lawyer

acting for the appellant, acknowledged, in statements concerning French law and the criminal procedure in this case, that the point

had been reached in the criminal procedure under French law to charge the appellant with the crime of murder.

M. Tricaud acknowledged that the decision of the investigating judge to issue a warrant is more or less or equivalent to the charging

of the appellant with the offence of murder. He also stated that "It means that the investigating judge has indicated that there is

sufficient evidence against the respondent to warrant further criminal prosecution…". Here the continuation of the "phase

d'instruction" is characterised as a prosecution against the appellant and not simply an investigation in the ordinary and English

language meaning of that term, although he went on to dispute that this "necessarily" meant that there was enough evidence to

place him on trial. Indeed the French prosecutor in the statement referred to took issue with a number of statements made by M.

Tricaud in the statements which he furnished to the Court but on the crucial facts relating to the procedures before the investigating

judge there does not seem to be a fundamental conflict. In any event I find that the statement of the French prosecutor gives a

clear and objective explanatory account of the proceedings before the investigating judge and I consider it sufficient to rely on that

statement for the purpose of addressing the points in issue in this context. There can be no doubt, in my mind, that the investigating

judge has decided that the appellant be charged with the offence of murder.

In any event, as pointed out above, the European Arrest Warrant states quite clearly that it was issued for the purpose of

conducting a criminal prosecution against the appellant. As this Court has previously held, (see MJELR v. McArdle) such a statement

is prima facie evidence of the purpose for which surrender is sought and it would "normally require cogent evidence to the contrary

to raise a genuine issue as to the purpose for which the warrant in question has been issued and the surrender sought".

On the basis of the material before the Court I am quite satisfied that the appellant's surrender is sought, not because he is a mere

suspect, but because the investigating judge has concluded that there is evidence of sufficient weight to justify that he be charged,

as an accused, of the criminal offence of murder.

In short it is quite clear that a point has been reached in the French criminal process where a decision has been made, by an

authority duly authorised to do so, to charge the appellant with a criminal offence on the basis of "serious" evidence (indices graves)

that he has committed a crime. It is also clear from the statement of the French prosecutor that the appellant will enjoy, in the

procedures which would follow if brought before the judge, all the procedural rights of an accused person.

Accordingly, on the facts before the Court I am satisfied that the European Arrest Warrant in this case, as it expressly so states, has

been issued for the purpose of conducting a criminal prosecution, on foot of a specified charge, against the appellant within the

meaning of Article 1.1 of the Framework Decision and in that respect meets the requirements of s.10 of the Act of 2003. It also

follows that it has not been established that there was no decision to charge the appellant within the meaning of s.21A. On the

contrary, there clearly was a decision to charge him.

Was there a decision "to try" the appellant?

This aspect of the issue in this case can be summed up in fairly succinct terms. Should this Court conclude, on the basis of the

material before it, (much of which was not before the learned High Court judge and in particular, so far as this aspect of the case is

concerned, the comprehensive statement of the French prosecutor) that there has been no decision either express or implied to put

the appellant on trial it must refuse the Minister's application. It is a fairly net issue of fact.

In the document lodged with this Court on behalf of the French prosecutor, already referred to above, the prosecutor addresses the

current state of the criminal proceedings before the investigating judge as well as describing those which have been followed to date

and which would, if the appellant was surrendered, be followed subsequently.

I do not consider it necessary, for present purposes, to recite that statement in full or to analyse all the aspects of the investigatory

phase (phase d'instruction). I do propose to refer to certain salient elements of it (indicating where I am quoting from the document)

those features are not really in issue between the parties.

First of all it was pointed out that when a crime is committed in France (other than for certain offences, which can be described for

present purposes as minor offences) the State Prosecutor must refer the matter to an investigating judge (Juge d'Instruction). It is

then that the investigating judge who takes charge of "investigating" the case "[T]his phase of investigation (phase d'instruction)

precedes that of the trial".

"The investigating judge is only responsible for a procedure preparatory to the trial procedure."

The investigating judge is a judge (‘magistrat’) of the Tribunal de Grande Instance. He holds an independent judicial office.

The purpose of the investigation (‘instruction’) is to ascertain the truth of what occurred and the judge must examine all evidence

that is to say all evidence concerning both innocence and guilt. Accordingly, all evidence is gathered in a single investigation case file

(dossier d'instruction).

This file may be consulted at any time by all the parties, including the accused. Before becoming a party to the investigation a person

cannot have access to the case file. Because the appellant is not yet a party (although he could have applied through his lawyer to

become a party) to the proceedings he is not entitled to investigate the case file. Once actually charged, in France, he automatically

becomes a party to the investigation and becomes entitled to consult the case file at any time and obtain a copy of any document on

it.

This investigation phase is also described as "an interlocutory procedure" (procedure preparatoire) during the course of which the

person may be indicted but not tried or sentenced.

In this case the investigating judge issued a warrant for the arrest of the appellant on a charge of murder.

It is crucial to note that according to the French Judicial Authority, the issuing of such a warrant is governed by article 122 of the

Code of Criminal Procedure of France. That article states that "an arrest warrant can be issued if serious or corroborating

circumstantial evidence exists regarding a person which make it likely that he or she could have taken part, as perpetrator or

accomplice, in committing a crime."

The French prosecutor emphasised that:

"These are the same criteria which oblige the investigating judge to indict a person when he or she is physically

present."

As has already been pointed out earlier in this judgment the French "investigating phase" has reached a point where there has been a

decision to charge the appellant with the offence of murder. He has not of course, yet actually been charged with that offence

because he has not been brought before a French court. Should he be surrendered to the authorities in France the investigatory

phase will continue. However, it clear that the decision to charge and therefore prosecute the appellant for the offence of murder is

not contingent or conditioned on any further evidence coming to light since it is quite clear that the decision to charge was based on

the weight of the evidence and according to criteria which are equivalent to the criteria applied when a decision is being made to put

a person on trial.

Therefore, although the so called investigatory phase (‘phase d'instruction’) continues it continues in the form of a prosecution of the

appellant as his lawyer M. Tricaud properly acknowledged in the quotation referred to above. It is clear that the appellant would not

be before the Court as a suspect but as an accused. It is also clear that the procedure which remains to be followed is a procedure

which may lead to a decision that the appellant be tried in the court of trial. Again, as the document makes clear the court of trial is

a court other than the court to which the investigating judge is attached. Thus, in approaching this matter the substantive nature of

the so called investigating phase and the point at which it has now arrived must be taken into account. It is not one in my view to be

equated with an inquiry or an investigation for the purposes of ascertaining whether a prosecution should be brought against a

particular person. That stage has already been reached and passed in the French procedure.

The French prosecutor then points out that the investigation phase, after charge, is indeed pursued further. Regard must be had to

the substantive nature of this stage of those proceedings, rather than relying on the fact that in English it is described as the

investigatory phase (‘Phase d’instruction’)

In that statement she states

"With this end in view, it should be noted that during the judicial investigation, Mr. Ian Bailey and his lawyer will be able

to make requests for specific action. More specifically, the parties may ask for:

"Any medical or psychological examination or any constructive measures relating to the personality of the indicted

person,

- their hearing or their examination, the hearing of a witness, any hostile questioning, including a witness testifying under

conditions of anonymity,

- transport to sites relevant to the case or production by one party of evidence useful for the investigation.

- any expertise or cross-examination.

The lawyer may also request that experts be required to carry out some research or hear certain appointed individuals

capable of providing technical information."

It also outlines other rights which the appellant, as an accused, or his lawyer, is entitled to exercise. The appellant will be questioned

by the investigating judge and he has a right to refuse to answer such questions. All of this is preparatory or preliminary to any

decision that he should be tried. As was pointed by the prosecutor the investigating judge may decide, at any point in the course of

this phase or at least at the end of it, that the prosecution should proceed no further and that the appellant should not be tried. It is

in this context that the prosecutor emphasised that the function of the investigating judge was to examine and ascertain all relevant

evidence, not just that which might point towards the guilt of the accused but also evidence which may tend to exonerate him from

any criminal offence.

The document does contain, to my mind, a statement of key importance to this aspect of the case. That statement by the

prosecutor is made in the following terms:

"It must be clearly understood that the evidence in the case, supporting the charge against Mr. Ian Bailey or

exonerating him, is not yet complete"

That statement was made just before the prosecutor went on to explain the nature of the judicial investigation that would follow

after Mr. Bailey has been brought before the investigating judge, and which, incidentally, could only be followed if he is brought before

the investigating judge. Those are the matters which I have just referred to above concerning further examination of witnesses and

so forth.

It is in that context, and on the basis of those factual matters in this case, that the question as to whether a decision has been

made "to try" the appellant must be determined.

A similar issue arose in a case before this Court and was dealt with in a judgment by O'Donnell J. (nem diss). That was his judgment in

MJELR v. Olsson. In that case the surrender of Mr. Olsson was sought by the Swedish authorities on foot of a European Arrest

Warrant. The evidence in the case made it clear that he would not be prosecuted with the offences set out in that warrant until the

Swedish prosecutors had interviewed him. It was also common case that as a result of such an interview by the prosecutors it could

transpire that the criminal prosecution would be brought to an end and abandoned. In that case it was stated, by the Swedish

prosecutor that under Swedish law the investigation process may be only formally concluded when the accused is present. The

accused must be presented with the information obtained in the investigation and given the opportunity to reply to same. However,

no formal charges can be laid until the conclusion of the investigation as the prosecutor is legally incapable of arriving at a final

decision to prosecute until they meet the accused and hear his objections and perhaps obtain additional evidence.

In that case the Court decided to order the surrender of Mr. Olsson.

In the course of his submissions counsel for the Minister relied on the judgment of the Olsson case and on the basis of the facts

before this Court at that point submitted that the considerations which led the Court to order a surrender in that case also applied in

this one, notwithstanding that the investigatory or instruction phase of the proceedings had not been actually completed.

In the context of that case Mr. Justice O'Donnell, in addressing the issue as to whether there had been a decision to prosecute and

try Mr. Olsson within the meaning of s.21A stated as follows:

"Thus, the concept of the “decision” in s.21A should be understood in the light of the “intention” referred to in s.10 of

the Act and the “purpose” referred to in article 1 of the Framework Decision.

When s.21A speaks of “a decision” it does not describe such decision as final or irrevocable, nor can it be so interpreted

in the light of the Framework Decision. The fact that a further decision might be made eventually not to proceed, would

not therefore mean that the statute had not been complied with, once the relevant intention to do so existed at the

time the warrant was issued. The Act does not require any particular formality as to the decision; in fact, s.21 focuses

on ( and requires proof of ) the absence of one. The issuing state does not have to demonstrate a decision. A court is

only to refuse to surrender a requested person when it is satisfied that no decision has been made to charge or try that

person. This would be so where there is no intention to try the requested person on the charges at the time the

warrant is issued. In such circumstances, the warrant could not be for the purposes of conducting a criminal

prosecution."

He also pointed out "What is impermissible is that a decision to prosecute should be dependent on such further investigation

producing sufficient evidence to put a person on trial." And in his concluding paragraph he stated "… before a Court can refuse to

surrender a person requested under such a warrant, it must be satisfied by cogent evidence to the contrary that a decision has not

been made to charge the particular person with, and try him or her for, the offence."

In that case O'Donnell J. in effect concluded that the evidence before the Court, notwithstanding the procedural process, namely the

interview of the accused by the prosecutor, which had to be carried out after his surrender and before he could be formally charged

and tried, Mr. Olsson had not discharged the onus placed upon him by s.21A(2). That is to say there was not sufficient evidence

produced by him to satisfy the Court that no decision had been taken to prosecute and try him.

After the document prepared by the French prosecutor and referred to earlier in this judgment, had been lodged with the Court on

behalf of the Minister, counsel for the Minister conceded that he could not rely on the decision in Olsson, to the extent which he had

in his submissions to this Court in the course of oral argument the previous day.

As I have already indicated, the key statement in the prosecutor's document is the following "It must be clearly understood that the

evidence in the case, supporting the charge against Mr. Ian Bailey or exonerating him, is not complete." It was emphasised also that

the "phase d'instruction" was not complete and no decision to try the appellant would be made until it was complete.

No argument was advanced on behalf of the Minister seeking to reconcile those statements with the approach adopted by this Court

in the Olsson case.

On the facts of this case as outlined above and in particular as explained in the document of the French prosecutor presented on the

last day of the hearing, the conclusion must be that there has not been, expressly or impliedly, any decision to try the appellant for

the offence specified in the European Arrest Warrant.

Since one must conclude, as a matter of fact, that no decision has been made to try, as opposed to charge the appellant with that

offence, the application for the surrender of the appellant must refused in accordance with s.21A. On that ground I would dismiss the

application. The prohibition against surrendering a requested person where the Court is satisfied that no decision has been made to

try him is a creature of the act of 2003 as amended and not the Framework Decision.

Section 42 of the Act 2003 as amended by the Act of 2005

As noted at the outset of this judgment s.42(c) of the Act of 2003 provided, before its amendment in 2005, that a person shall not

be surrendered on foot of a European Arrest Warrant if the Director of Public Prosecutions had decided not to bring criminal

proceedings against the person whose surrender is sought where the offence specified in the warrant is the same as that in respect

of which the D.P.P. had decided not to prosecute.

If that paragraph of s.42 was still in force at the time of the Minister's application then it would constitute a bar to the appellant's

surrender. That provision was removed by s.83 of the Criminal Justice (Terrorist Offences) Act, 2005. The appellant has nonetheless

argued that he should receive the benefit of the prohibition set out in paragraph (c) of s.42 arguing, inter alia, that it was in force at

a time when the D.P.P. had taken a decision not to prosecute him for the offence which is now specified in the European Arrest

Warrant.

I agree with the Chief Justice for the reasons given in her judgment, that s.42(c) does not apply to an application for surrender, such

as this, which has been brought after the coming into force of the Act of 2005 and therefore this ground of appeal is not well

founded.

Section 44 of the Act of 2003

The appellant has submitted that his surrender pursuant to the Act of 2003 is prohibited by virtue of s.44 of that Act since the

offence which he is alleged to have committed, as specified in the European Arrest Warrant, is, in the terms of s.4, "alleged to have

been committed in a place other than the issuing State and the act or omission of which the offence consists does not, by virtue of

having been committed in a place other than the State, constitute an offence under the law of the State".

In his judgment in this case Fennelly J. has comprehensively analysed the meaning and import of s.44 and concluded that the section

applies to the offence specified in the warrant in this case and therefore that the section constitutes a bar to the surrender of the

appellant pursuant to the provisions of the Act. I do not consider it necessary to embark upon a similar analysis since I agree fully

with the reasons and conclusions of Fennelly J. in this regard. I also agree with the judgment of the Chief Justice on this point.

Accordingly, I agree that the appeal should be allowed and the application of the Minister dismissed on this ground also.

Section 37 and infringement of fundamental rights.

Section 37 of the Act is to be found in Part 3 of the Act entitled "Prohibition on Surrender". The section provides that a person shall

not be surrendered under the Act if the surrender would be incompatible with the State's obligation under the European Convention on

Human Rights or its protocols or if his or her surrender would constitute a contravention of any provision of the Constitution.

In relying on this section the appellant advanced a range of grounds claiming that his surrender was prohibited by that section. I do

not consider it necessary to refer to them in great detail but he alleged, inter alia, that his surrender would be an abuse of process

due to delay, due to the fact that the D.P.P. had decided not to prosecute him in this country and that the surrender request, relying

as it did on information and evidence provided by the Gardaí to the French authorities, was based, at least in part, on false factual

information.

The basis on which the appellant relied on s.37 took a dramatic turn when important and relevant material was disclosed to his

solicitor not long before the appellant's appeal was due for hearing in this Court.

Before referring to that material I should refer to the fact that counsel for the Minister, at the conclusion of his submissions on s.26A

asked the Court to decide the first three issues in the appeal before addressing the issues raised by the appellant pursuant to s.37 of

the Act. This was on the basis that if any of these issues were decided in favour of the appellant that would bring an end to these

proceedings in his favour and there would be no need for the Court to enter upon an examination of the issues raised by the appellant

on foot of the new material. Counsel submitted that it was in the public interest to decide these issues first. He also stated that the

Garda Síochána would be disputing certain facts which were stated in the material and would be seeking an opportunity to do so if

the issues arising from it had to be addressed. It was not in the public interest that this issue be heard. No indication was given as to

what facts would be disputed nor was any affidavit or document placed before the Court giving any such indication.

Counsel for the appellant "reluctantly" agreed to this approach. He had submitted that the appeal should clearly be allowed, inter alia,

having regard to the statement of the French prosecutor which was now before the Court and the approach of counsel for the

Minister with regard to it and the Olsson case.

It is clear that the issues raised by the appellant in this regard are properly before the Court in this appeal, the Court having decided

to admit the material in question as being relevant to the issues which he has raised pursuant to s.37. It is ultimately a matter for the

Court to decide whether it would accede to the request of the parties in this regard.

The material included a redacted letter from the former Director of Public Prosecutions who was Director at the time when it was

decide not to prosecute the appellant for the offence in question and a comprehensive analysis of the Garda investigation and the

evidence which it had produced on which a decision by the Director not to prosecute was based.

The material is of the highest importance emanating as it does from one of the law officers of the State. It is also dramatic and

shocking in its content. Some of the more shocking statements of fact are made by those who purport to have first hand knowledge

of those facts. In the circumstances I do not propose to go into it in great detail. The former Director of Public Prosecutions

expressed his concern as to the possible consequences for the appellant if surrendered, and subsequently imprisoned “on the basis of,

inter alia, “evidence” and conclusions provided by what I regarded at the time as having been a thoroughly flawed and prejudiced

Garda investigation culminating in a grossly improper attempt to achieve or even force a prosecutorial decision which accorded with

that prejudice. I felt accordingly that as a matter of ordinary justice I was obliged to bring that matter to appropriate attention."

The investigation analysis included, for example a description of how a person, not the appellant, was arrested and deprived of liberty

on one occasion for an unlawful purpose, and shockingly the same person was again picked up, arrested, deprived of liberty in the

teeth of prior directions from the Director of Public Prosecutions that an arrest of that nature would not be lawful.

Such conduct in the course of a police investigation, if true, strikes a blow against the fundamentals of the rule of law on which this

State is founded. Given the source and knowledge of the persons who made these statements they cannot be regarded as simply

contentious, raising as they do issues fundamental to the constitutional protections which citizens and other persons in this country

expect to enjoy.

Of course any examination of this material would necessarily involve the hearing of evidence and in particular evidence from any

person adversely affected by them if they sought to deny or rebut particular factual matters. Issues then raised could only be

resolved by a trial in a court of first instance. They are not issues that are susceptible to being resolved in a court of final appeal

such as this Court.

Accordingly, if the Court considered that these issues should be addressed and decided in the course of these proceedings that issue

would have to be remitted to the High Court for trial.

In the light of the decision of the Court as a whole to allow this appeal and dismiss the application of the Minister on other grounds, I

am satisfied that the interests of the due administration of justice and the achievement of finality in these proceedings would not

justify such a course.

Therefore, I do not think it is necessary or appropriate that the issues raised pursuant to s.37 of the Act be addressed and decided in

these proceedings.

Accordingly, I would allow the appeal for the reasons stated earlier in my judgment and dismiss the Minister's application.