Supreme Court refuses surrender to France due to lack of reciprocity in extraterritorial murder prosecution laws.

[2012] IESC 16

THE SUPREME COURT

174/2011

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O’Donnell J.

Between:

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

Applicant

and

IAN BAILEY

Respondent

JUDGMENT of Mr. Justice Hardiman delivered on the 1st day of March, 2012.

1. This is the appeal of Mr. Bailey against the judgment of the High Court delivered the 18th March, 2011, and its order perfected on

the 13th April, 2011, whereby it was ordered that Mr. Bailey be surrendered to France and that he be committed to prison pending

such surrender. Subsequently it was ordered that the order for surrender and committal be stayed pending appeal. Mr. Bailey was

ordered to pay to the Minister the costs of the proceedings. The judgment of the High Court was that of The Hon. Mr. Justice Peart

who ordered the surrender of the appellant. The learned trial judge certified the following point as being one of exceptional public

importance in accordance with the provisions of s.16 (12) of the European Arrest Warrant Act, 2003 as amended by section 12 of the

Criminal Justice (Miscellaneous Provisions) Act, 2009:

“Whether the surrender of a person is prohibited by Section 44 of the Act where the offence for which surrender is sought

is committed in the State and where the victim is a national of the requesting State which seeks to exercise an extra-

territorial jurisdiction to prosecute the offence under its own laws and in circumstances where the Director of Public

Prosecutions in this State has decided not to prosecute the person in respect of that offence”.

2. The appellant seeks that the order mentioned above be set aside.

3. This case is unique on its facts and is of considerable legal importance. It raises a number of issues which are not governed by any

direct authority. In particular, there does not appear to have been a previous case where the forcible delivery of an Irish resident,

long established in Ireland though not an Irish citizen, to another country was requested so that he could be subjected to

proceedings there for an offence allegedly committed in Ireland. Moreover, this request for forcible delivery was made more than

thirteen years after the crime was allegedly committed, and after the Irish Public Prosecutor, the Director of Public Prosecutions

(D.P.P.”), had decided, following a detailed analysis of the case, that the evidence did not warrant a prosecution against Mr. Bailey.

However the State says that these factors are totally irrelevant to the present case.

Factual Background.

4. From the European arrest warrant in this case and the other evidence offered, it appears that on the night of the 22nd - 23rd

December, 1996, Sophie Toscan Du Plantier was found dead near a property she owned in Schull, County Cork, which is of course in

Ireland. I mention expressly this obvious fact because it is essential to part of the legal analysis of one of the grounds of objection to

delivery.

5. About thirteen years and two months later an authority in France issued a European arrest warrant for Ian Bailey. Mr. Bailey is a

British citizen who is long established in County Cork.

6. The warrant states that surrender is sought “en vue de poursuites pénales” which is translated as “for the purpose of criminal

prosecution”. The offence mentioned in the warrant is described as “assassinat” translated as “murder”. The victim is identified as

Sophie Toscan Du Plantier and the place of the crime is stated to be Cork, Ireland. The penalty applicable to the crime is described as

“Réclusion criminelle a perpétutié” or “criminal reclusion in perpetuity”.

7. In the warrant Mr. Bailey’s nationality is stated to be British, but that of Sophie Toscan Du Plantier is not stated, event though this

would seem to be the alleged basis for French jurisdiction.

8. It appears therefore that Mr. Bailey’s forcible delivery to France is required so that he can be investigated (see below) in that

country for an offence allegedly committed in Ireland a considerable time ago, and already fully considered by the prosecuting

authorities here. According to the High Court judgment, this is regarded as possible in French law because of a very distinctive

provision of that law, Article 113.7 of the Penal Code which is translated as follows:

“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

when the offence took place.”

9. It thus appears that French law claims a very wide jurisdiction, in fact a worldwide jurisdiction, over crimes of sufficient gravity

allegedly committed against French people wherever they occur.

10. Ireland does not claim any such worldwide jurisdiction in respect of offences committed against Irish citizens; Irish extraterritorial

criminal law is discussed later in this judgment.

11. Accordingly it is clear that the procedures to which it is intended to subject Mr. Bailey, if forcibly delivered to France, would

involve a criminal investigation (whose nature is discussed below) in respect of an offence which took place outside the territory of

France, and in the territory of Ireland. It would, accordingly, be an exercise of a French jurisdiction over a crime which took place

extraterritorially, in the sense of outside the territory of France. Such proceedings would also, according to what the Court has heard,

be prima facie statute barred since a ten year limitation period applies, which can however be displaced in certain ways. Neither the

prescription period, nor its possible suspension, are the subject of any comment or information whatsoever in the warrant.

Opacities in the Warrant.

12. The European arrest warrant (“E.A.W.”) in this case is in a common form, used whenever the E.A.W. procedure is sought to be

operated. Paragraph (f) of this warrant provides a heading:

“Other relevant information in this case” (optional information).

13. In a “note” to this heading the following words occur:

“It is possible to include here remarks pertaining to extraterritoriality, the acts suspending the application of the statute

of limitations, and other consequences of the violation.”

14. Despite the fact that this section of the common form warrant plainly gives an opportunity to state why and on what basis an

extraterritorial jurisdiction is being exercised and in what manner the statute of limitations is said to be suspended, these spaces have

been left blank in the warrant issued by the French authority. This is scarcely due to ignorance of French law or of the E.A.W.

procedure.

Ignoring the Irish Investigation.

15. The violent death of Madame Du Plantier was of course investigated by the Garda Síochána and the fruits of this investigation

were considered by the Director of Public Prosecutions (“D.P.P.”), the statutory public prosecutor in Ireland.

16. The latter concluded “a prosecution against Bailey is not warranted by the evidence”. This decision was reviewed and confirmed

on several occasions from 1999 onwards.

17. The French request does not in any way enter into the question of why the delivery of Mr. Bailey to France, against his will,

should be effected when the police and prosecutorial authorities in Ireland have considered the case and a decision has been made by

a high and independent official that the evidence does not warrant prosecution of him. Instead, the French authorities simply claim

that they are entitled to the forcible delivery of Mr. Bailey by virtue of the Council Framework Decision of 13th June, 2002 on the

European arrest warrant and the surrender procedures between Member States (2002/584 JHA) (“the Framework Decision”) as

transposed into Irish law by the European Arrest Warrant Act 2003 as amended (“the Act of 2003”). The warrant makes no mention

whatever of the Irish public prosecutor and the decision he made, that the evidence did not warrant a prosecution against Mr. Bailey,

nor of the fact that, as will be seen below, a French Court would be allowed to refuse delivery in such circumstances.

18. Mr. Bailey has been very thoroughly investigated in Ireland in connection with the death of Madame Du Plantier. There was

certainly, as will be seen, no lack of enthusiasm to prosecute him if the facts suggested that there was evidence against him. He has

been subjected to arrest and detention for the purpose of questioning. He has voluntarily provided, at the request of the gardaí,

forensic samples which have failed to yield incriminating evidence. The fruit of the investigation have been considered not once, but

several times by the D.P.P. who has concluded and reiterated that there is no evidence to warrant a prosecution against him. But the

French authorities, without commenting in any way on the Irish investigation and decision, or even acknowledging them as a matter

of fact in the warrant which has been issued, claim to be entitled to bring Mr. Bailey to France, there to subject him to a procedure

described below. It is, as will be seen, more than doubtful that France would deliver a person to Ireland if the situation were reversed,

but the State say that fact has no relevance.

An Unusual Feature.

19. In November, 2011, while this appeal was pending, the State authorities in Ireland wrote to Mr. Bailey or his advisers and enclosed

copies of certain newly discovered materials. These reached the Bailey side under cover of two separate letters. The first letter

enclosed copies of e-mails which appeared to be written by the former D.P.P., Mr. Eamonn Barnes and by Mr. Malachy Boohig, State

Solicitor for West Cork, and a separate memorandum about this case written by an unnamed official in the D.P.P.’s office. These

documents appear to record an alleged attempt by an unnamed senior garda or gardaí to procure Mr. Boohig to bring political pressure

to bear on the independent D.P.P. to prosecute Mr. Bailey for the murder of Madame Du Plantier. This attempt was resisted by the

person who was asked to set it in motion, Mr. Boohig, who immediately informed the D.P.P. who recorded the information as set out.

Apart from that he preserved silence on the matter and kept it confidential until the last possible moment, in November, 2011.

20. Under separate cover there was disclosed to the Bailey side a document, unsigned in the form in which it was presented, being a

forty-four page analysis of the case of Madame Du Plantier produced by the then D.P.P. or in his office and concluding, as mentioned

above, that “a prosecution against Bailey is not warranted by the evidence”. This is a detailed and reasoned document, in which

numerous individual pieces of evidence are individually considered.

21. It is, of course, most unusual that documents of this sort, plainly documents internal to the prosecuting and investigative

authorities, are disclosed in this fashion. It appears that the first set of documents were generated when the former D.P.P. sent them

or some of them to his successor’s office. The advice of the Attorney General was then taken following which the authorities were

advised to disclose the documents to Mr. Bailey, on the basis of their manifest importance.

22. The disclosures were made in November, 2011, just before the appeal in this matter was due to be heard. Because of the

disclosures, and to allow both parties to consider the position, the appeal was adjourned to Monday, 16th January, 2012. On the

preceding Friday, 13th January, 2012, a motion was heard in this Court in which Mr. Bailey sought to admit this new material on the

hearing of the appeal. The application was granted.

23. For present purposes all that now needs to be said about this newly disclosed material is, firstly, that the decision not to

prosecute Mr. Bailey was based on a detailed view taken of the evidence which was put forward by the gardaí and not, for example,

on the basis of any a priori attitude, or on the basis of any technicality, and secondly, that it appears that the former D.P.P.

considered that the garda enquiry into the case was “prejudiced” against Mr. Bailey, and flawed.

24. For reasons which will appear below, and at the request of the State, that portion of Mr. Bailey’s case opposing his forcible

delivery to France which relies on the newly discovered documents has not been heard, at least as yet. The State’s request in this

regard has also determined, in my mind at least, the order in which the other issues in the appeal should be addressed.

Unforeseen Development on the Appeal.

25. Mr. Bailey’s appeal proper against the High Court order began on Monday 16th January, 2012. Mr. Bailey was represented by Mr.

Martin Giblin S.C., Mr. Garrett Simons S.C. and Mr. Ronan Munro B.L. instructed by Frank Buttimer & Co. The Minister, the “Central

Authority” for the purposes of the European Arrest Warrants Act 2003 was represented by Mr. Robert Barron S.C. and Mr. Patrick

McGrath S.C. instructed by the Chief State Solicitor.

26. At the opening of the appeal it was indicated on behalf of Mr. Bailey that Mr. Garret Simons S.C. would argue the first three legal

matters on which Mr. Bailey was relying. These were that his forcible delivery to France was precluded, separately and independently,

by the terms of s.s.44, 42 and 21A of the European Arrest Warrants Act. It was indicted that Mr. Martin Giblin would later deal with

the other issues which may be described as the broader issues arising under s.37 of the Act. It was in relation to these latter issues

that it was proposed to deploy the new material.

27. The case proceeded as indicated above. The Court heard the submissions of Mr. Simons on behalf of Mr. Bailey on the first three

issues and heard the Central Authority’s submissions from Mr. Barron. It then heard Mr. Simons in reply.

28. In the course of Mr. Bailey’s case a statement of a French lawyer was put forward as evidence of the state of relevant French

Law. This had already been the subject of comment by another French lawyer in support of the request in the warrant. In the course

of his submissions, however, Mr. Barron produced as “additional information” a further statement of a French lawyer and who is also a

high official, on behalf of the French authority. This document was given to each member of the Court in French and Mr. Barron

undertook to produce an official translation the following day. It appears to me that nothing much turns on whether one reads the

document in its original French or in English. The relevant portions are extensively quoted and analysed having regard to both versions

later in this judgment.

29. This document is of very considerable significance because it appears from it that it is intended, if Mr. Bailey is forcibly delivered

to France, to make him participate in an investigative procedure at the end of which it may, or it may not, be decided to put him on

trial. This was immediately recognised as a matter of great significance by both sides because of the provisions of s.21A of the Act of

2003, which is set out below.

30. Having heard both sides’ submissions and seen the document presented by Mr. Barron on Wednesday 18th January, which itself

was simply the translation of a document on French law produced the previous day, the Court intended, as previously arranged, to

hear Mr. Martin Giblin S.C. on the s.37 points.

31. However, Mr. Barron S.C. on behalf of the State intervened and asked that the Court would not then proceed to hear the rest of

the submissions on behalf of Mr. Bailey, i.e. the s.37 points. He gave a number of reasons for this. Remarkably, they all related to a

row or, as Mr. Barron called it, “spat” within or between the law enforcement agencies:

“(a) The gardaí” might” object to the contents of the DPP’s 2001 memorandum. He said that the Commissioner and

the Superintendent in charge of the investigation objected to the contents of this document because they

dissented from it on factual grounds.

(b) He said that the document was open to substantial grounds of objection.

(c) He said that if one was to take the document into account one would need to hear what he called “the garda

side”.

(e) He said that there were facts not included in the document which would lead to different inferences or

conclusions being reached.”

32. Mr. Barron made no comment at all on the allegation of a Garda attempt to get a politician to intervene with the D.P.P. to have

Mr. Bailey prosecuted, despite the finding that evidence did not warrant this. He neither admitted nor denied this. Mr. Barron, in

answer to a question, said that he was making this request on behalf of the Minister. In answer to a further question, Mr. Barron said

that the gardaí had had the D.P.P.’s document for over 10 years, since 2001, the year it was written. Mr. Barron was then asked

whether the gardaí had previously objected to the document as he was doing now and he said that “they have internally objected”.

However he went on to say that “they can’t verify that these objections went to the D.P.P.”.

33. There was then some further discussion on the effect of the French authorities’ lawyer’s statement, now available in translation.

Mr. Barron said that its effect was that “I can’t rely on Olson in the way I was doing yesterday”.

34. This was a reference to a previous decision of this Court, Minister for Justice v. Olson which was a major plank in the State’s

argument that Mr. Bailey could be forcibly delivered to France despite the terms of s.21A.

35. Mr. Giblin S.C. on behalf of Mr. Bailey then said that the new document handed into Court, and its original produced the previous

day, made it clear that his side were entitled to win the s.21A point: there had been no decision to bring Mr. Bailey to trial.

36. At the request of the State the appeal was then adjourned firstly to 12 noon and later to 2pm to allow Mr. Barron to take

instructions as to whether he was asserting that he could succeed on the s.21A point. After the second adjournment Mr. Barron said

that the Minister’s position had not changed. He said that it was clear from the evidence and the statements of French law that the

warrant was a warrant for the purposes of prosecution, and that was sufficient for the purposes of s.21A.

37. Mr. Barron repeated his request that the Court should not then hear the s.37 argument, which was obviously going to be fraught,

but should first give judgment on the arguments already offered. He further requested that, if Mr. Bailey were successful on one of

these arguments, so that he was entitled to defeat the demand for his forcible delivery to France, the Court should nonetheless

proceed to give judgment on the two other points raised as well.

38. This was a very unusual request by the State. The Court will normally proceed to hear all the grounds of appeal relied on before

giving judgment on any of them. Moreover, the Court will not normally decide issues which it is not necessary to decide. Thus, if an

appellant is entitled to succeed by reason of the Court’s decision on the first point decided it will not normally go on to decide the

other points because it is unnecessary to do so in order to resolve the case. Indeed, any decision of an unnecessary point will usually

cause that part of the judgment to be regarded as “obiter”, that is as not involved in the rationale of the result and therefore not of

binding effect.

39. However, in response to Mr. Barron’s request, Mr. Giblin said that, by reason of the distress caused to Mr. Bailey and his family by

the prolonged proceedings, he had no objection to the Courts deciding the legal issues which had already been argued before

proceeding if need be to the next part of the case.

40. It was also said on behalf of Mr. Bailey that the new French material, although put before the Court by the State in support of

the application for Mr. Bailey’s forcible delivery to France, had the effect of establishing that the Court could not order Mr. Bailey’s

delivery, having regard to the provisions of s.21A of the Act. This was because the new material established quite clearly, and in

terms, that no decision had been made to put Mr. Bailey on trial for the offence specified in the warrant. To appreciate this point it is

necessary first to set out the provisions of s.21A, which will shortly be done.

41. The effect of the foregoing is that, at the request of one party and by consent of the other, the Court is going to give judgment

on the issues upon which it heard argument, or as many of them as may be appropriate, before if necessary hearing the rest of the

case. This is at the request of the State parties, which was acquiesced in, for the reasons given, by Mr. Bailey’s side. Moreover,

since the new evidence about French law, produced by way of “additional information” in the French language on Tuesday, 17th

January and in an official translation on the following day, seems to have triggered the request to defer part of the argument, it

seems logical to decide the point most obviously addressed by that evidence first. This is what has been described in the course of

the hearing as “the s.21A point”.

42. I may add that I would not have favoured deferring the hearing of the s.37 points on the grounds first mentioned by Mr. Barron,

to do with the need to contradict or controvert the decision of the D.P.P., at the suit of certain gardaí. Under our law, since the

Prosecution of Offences Act, 1974, it has been the role of the independent D.P.P. to decide whether or not a prosecution shall be

taken. Prior to the passing of that Act, the role was that of the Attorney General. It was decided to confer the role on an

independent public official to avoid any suggestion of bias or conflict of interest in the taking of that important decision in a particular

case.

43. That role, therefore, is the role of D.P.P. and not of the Government of the day, the Minister for Justice, or any other holder of

political office. Neither is it the role of the gardaí. It is their role to conduct an investigation, to seek advice where appropriate, from

the law officers, including the D.P.P., and to carry out his or her instructions in the matter of preferring charges. It would be very

wrong, and it is prohibited by statute, to bring any form of pressure to bear on the D.P.P. in the exercise of his role: it is particularly

objectionable to do so, or to attempt to do so, by the intervention of any holder of political office.

44. The statutory prohibition to which I refer is contained in s.6 of the Prosecution of Offences Act, 1974 as follows:

“6(1)(a) Subject to the provisions of this Section it shall not be lawful to communicate with … the Director or an

officer of the Director … for the purpose of influencing the making of a decision not to initiate criminal proceedings

or any particular charge in criminal proceedings”.

45. The Court does not sit here in order to arbitrate what Mr. Barron S.C. called “a spat between the gardaí and the Director of Public

Prosecutions”. The only aspect of this “spat”, if that is what it was, which is of any relevance to the present proceedings is that the

D.P.P. decided in the present case that the evidence produced to him by the gardaí did not warrant the bringing of a prosecution

against Mr. Bailey. The D.P.P. has succeeded to the functions of the Attorney General in this regard and that includes the function of

directing when a prosecution should be brought, and when a prosecution should not be brought, in the name of the people of Ireland.

It is important that a prosecution should be brought where that it is appropriate; it is no less important that no prosecution should be

brought when the evidence does not warrant it because to do so would seriously undermine respect for the law. That decision is for

the D.P.P. to make and not for the gardaí or anyone else, including this Court.

Section 21A of the European Arrest Warrants Act, 2003.

46. Mr. Bailey claims that his forcible delivery to France is precluded by the above section.

47. This provision in its present form provides 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, an try him or her

for, that offence in the issuing state, unless the contrary is proved.”

(Emphasis added)

48. On the hearing of the appeal, prior to the intervention of Mr. Barron described above, the appellant had taken issue with the

following findings of the learned High Court Judge:

“the investigating Judge in Paris has come to the view that there is sufficient evidence for the purpose of putting

the appellant into the next phase of the prosecution procedure, and that before the matter can proceed

further, his attendance before the investigating magistrate is required…this is what is sought to be achieved by

having the appellant surrendered. I do not read Monsieur Tricaud’s affidavit as disagreeing in any way that this is

what is occurring in this case.”

49. It appears to me that, apart from any other consideration, a determination “that there is sufficient evidence for the purpose of

putting the appellant into the next phase of the prosecution procedure” is not the same as a decision “to charge the person with,

and try him or her for, that offence in the issuing State”. Indeed, as will be seen, they are two quite different things, in French law.

50. The appellant also took issue with the High Court Judge’s finding that:

“It is also clear that only at the end of the instruction or examination phase, which cannot occur until the

appellant is brought before the judge, can a decision be made to put the appellant on trial.”

51. The appellant said that there was simply no evidence to ground these findings. The State parties had given no expert evidence of

French criminal law and procedure to that effect so that the only evidential material before the High Court, and before this Court until

additional material was supplied, was that of M. Tricaud, who was Mr. Bailey’s expert on French law.

52. M. Tricaud had commented on the above findings of the learned High Court Judge as follows:

“Both above propositions of French law are incorrect. All phases of French criminal procedure can proceed in the

absence of the Appellant. If the surrender of the Appellant is refused… his Honour Judge Gachon can proceed with

the examination in his absence and further the Appellant can be tried and sentenced in absentia.”

53. It appears that it was to counter this expert’s statement that the authorities decided to produce a new statement of a Mme.

Chaponneaux, described as a vice procureur of the [French] Republic. The relevant portion of this expert’s statement occurs on the

second and third pages of the official translation into English.

54. The second page (there is no numbering in the original) is headed “The Investigation Phase” and under this it is stated:

“If he were handed over to France by the Irish authorities, Ian Bailey would be at the investigation procedure

stage of the case.”

55. It is further stated:

“The aim of the investigation is to reveal the truth; it must consequently examine evidence of both innocence and

guilt”

56. Later again Mme. Chaponneaux states:

“The code of criminal procedure lays down that the principle of the presumption of innocence, whereby a person is

presumed innocent as long as his/her guilt has not been established, i.e. as long as a person has not been

sentenced [condamné] by a trial court, since only such a court can convict the person subject to trial.

This principle obviously applies to the investigation of a criminal matter. Indeed, this is only an interlocutory

procedure (procedure préparatoire) during which the person subject to trial (le justiciable) can be indicted (mise en

examen). But he/she cannot, under any circumstances, be sentenced [condamné] at this stage of the procedure.”

57. The word “condamné” in the French original is rendered as “sentenced” in the official English translation. It appears to me that

“convicted” would be a more appropriate translation: the literal meaning of the word is of course “condemned”. But the point is not

critical, since there can be no “sentence” without a preceding conviction.

58. On the third unnumbered page of the translation, the investigative procedures are described in some detail. It is then stated that,

after the procedure described has taken place:

“the investigating judge notifies the person either that he is or is not indicted” (le juge d’instruction notifie a la

personne soit qu’elle n’est pas mise en examen, soit qu’elle est mise en examen)”

59. The French phrase “mise en examen” is translated “indicted”. It is this, it appears to me, which is the beginning of the trial and it

is manifest from the statement of the vice procureur that this is something which may, or may not, happen in the case of Mr. Bailey.

60. The next statement of French law, following the one quoted above is as follows:

“The indictment is the act by which the investigating judge officially brings proceedings against a person on the

ground of serious or corroborating evidence rendering probable his participation, as perpetrator of, or accomplice in

the acts of which he is charged.”

61. A little later in the vice procureur’s document it is stated:

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

exonerating him, is not yet complete.”

(all emphasis supplied)

62. The document from which extensive quotations have been made above is, I believe, of evidential effect. It was sought to be

admitted by counsel for the Minister as “additional information”. Its contents are not controverted by Mr. Bailey’s lawyers. On the

contrary, they rely upon it and say it proves their case for them, on the s.21A issue.

63. It must be remembered that the issue is whether the court is required to refuse the surrender of Mr. Bailey on the grounds that “it

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

64. It is clear from the formulation of the subsection quoted above that the decision in default of which the Court must refuse to

surrender the person is not merely a decision to charge him with the offence, but a decision to try him for that offence. This is made

perfectly clear by the emphatic punctuation of s.21A(1), in particular in the last two lines of the subsection.

65. Against that background, one must consider the statement of the vice procureur. It seems plain to me from that statement that

no decision to try Mr. Bailey for the offence mentioned in the warrant has in fact been taken. There is first the uncompromising

statement:

“If he were handed over to France by the Irish authorities, Ian Bailey would be at the investigation procedure stage

of the case”.

66. This “investigation procedure stage” is described by the vice procureur as being “only an interlocutory procedure (procedure pré

paratoire) or “preparatory procedure”.

67. Moreover it is clear from the vice procureur’s statement that the evidence in the case, for or against Mr. Bailey, is not yet

complete and, therefore, that this “preparatory procedure” is not yet complete.

68. M. Tricaud’s statement that his preparatory procedure does not require Mr. Bailey’s presence is not contradicted.

69. The view - that no decision can be made whether or not to try Mr. Bailey for the offence in the warrant until after the end of the

investigative stage - is fully borne out by the judgment of the learned trial judge in a passage quoted above:

“It is also clear that only at the end of the instruction or examination phase can a decision be made to put the

appellant on trial”.

70. Therefore, no decision has been made to put Mr. Bailey on trial or “to try him for the offence specified in the warrant”. This

continues to be the position, and all the more clearly so, after the additional evidence of French law which has been presented.

71. It also appears from the statement of the vice procureur that the decision to indict the person, the “mise en examen”, is a

decision for the examining magistrate alone and, still more significantly, that it is a decision which he has not taken, and which he

may never take. The “indictment”, which is “the act by which the investigating judge officially brings proceedings against a person”,

has not yet issued and may never issue.

72. It appears to me, therefore, that on the evidence of the French authorities themselves, the Court can be affirmatively satisfied

“that a decision has not been made to try Mr. Bailey for the offence in the warrant”.

73. It will be noted from the terms of s.21A that the Court is prohibited from delivering a person if it is satisfied that a decision has

not been made “to charge the person with, and try him for” the relevant offence.

74. I am prepared to accept that the term “charge” is something different from “to try him”. But s.21A(1) is expressed conjunctively,

not disjunctively. The Court has to enquire whether a decision has been made both to charge the person with and to try him for the

relevant offence.

75. Section 21A plainly requires that, before an unconvicted person can be forcibly rendered to another country, there must be a

decision to put him on trial for the offence set out in the warrant and not for instance to deliver him simply for the purpose of being

investigated or questioned. This was made clear by the Irish Government when the Framework Decision was agreed in 2002.

76. In the course of the negotiations of the Framework Decision, Ireland made a “statement” which is recorded in a Council document

entitled “Corrigendum to the outcome of proceedings” (6/7 December, 2001). In the course of this there can be found the following

words:

“Ireland shall, in the implementation into domestic legislation of this Framework Decision, provides that the European

Arrest Warrant shall only be executed for the purpose of bringing that person to trial or for the purpose of executing

a custodial sentence or detention order”.

77. There are many good reasons for this stance, including the extremely prolonged course that preliminary proceedings may take in

inquisitorial systems. The French law appears to envisage a maximum period of detention of four years for this purpose, which would

be objectionable by the standards of any common law country. That is not to say that either the inquisitorial system, or the common

law accusatorial system, is superior: merely that very prolonged imprisonment without charge is unacceptable in the common law

system. This may explain the origins of s.21A. But no such explanation is needed, as the words of the Section are quite clear.

78. My learned colleague Fennelly J., in a judgment with which I am otherwise in complete agreement, discusses at paras. 114 and

115, how the case might have been determined if s.21A were worded differently. He considered, specifically, what the result might

have been if the section were worded along the lines of the statement quoted above.

79. Since this exercise is irrelevant to the outcome, and since naturally no argument was addressed to an entirely hypothetical issue,

I do not express even an indicative view on it.

80. But I am not to be taken as endorsing what Fennelly J. calls a “broad, purposive and conforming” approach to interpretation in a

matter concerning human and civil rights. Nor do I consider that the result of this case reflects any deficiency in Irish legislation. A

comparison with French legislation on the same topic, considered below, is instructive.

Some Authorities.

81. Section 21A was considered by this Court in Minister for Justice v. McArdle [2005] 4 I.R. 260. There, at pp 266 - 67, Murray C.J.

said:

“The mere fact that an arrest warrant is issued by a judge in a foreign jurisdiction may not of itself necessarily imply

that it is issued only for the purpose of charging the person concerned and putting him or her on trial for an offence

or offences… such a judge may require a suspected person to appear before him or to attend in his chamber in

connection with the conduct of the criminal investigation rather than for the purpose of charging that person with a

view to putting him or her on trial. Warrants issued for the purpose of such investigation could not be

considered as requiring the surrender of a person for the purpose of being tried for an offence.”

82. In the argument on the second day of the hearing of this appeal, before the French authorities’ statement of French law was

produced, Counsel for the Minister and the “Central Authority” Mr. Barron S.C. had argued that a decision to place Mr. Bailey on trial

had in fact been taken. He made this statement on the authority of the decision of this Court in Olson v. Minister for Justice [2011]

I.E.S.C. 1 This case, which related to a European Arrest Warrant issued by Sweden, is notable for its finding that:

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

Act and the ‘purpose’ referred in Article 1 of the Framework Decision”.

83. On the following page, however, it is said that:

“The requirement of the relevant decision, intention, or purpose can best be understood by identifying what is

intended to be insufficient on the issuance and execution of a European Arrest Warrant. A warrant issued for the

purpose of investigation of an offence alone, in circumstances where the investigation might or might not result in

a prosecution, would be insufficient.”

(All emphasis supplied)

84. The last sentence quoted seems to me to be entirely apt to describe the circumstances of Mr. Bailey’s case. It has been stated

by the vice procureur that Mr. Bailey, if forcibly removed to France, will be so removed for the “investigation procedure stage of the

case”; that this stage is merely a preparatory procedure after which he may, or may not, be sent for trial. The decision whether or

not to send him for trial has not yet been taken; the investigative procedure may also end in his not being sent for trial. At the end of

the investigating procedure the investigating judge will tell him “soit qu’elle n’est pas mise en examen, soit qu’elle est mise en

examen”. This form of words precisely mirrors the Olson formulation, referring to “a warrant issued for the purpose of an investigation

of an offence alone, in circumstances where the investigation might or might not result in a prosecution”. This has been explicitly

held by this Court to be insufficient.

85. It is recorded above that, after the production of the French expert opinion and its translation on Wednesday 19th January, 2012,

Mr. Barron stated that its effect was that he could not rely on the Olson case as he had done the previous day. The reason for this

statement is now, in my view, crystal clear. No decision to try Mr. Bailey for the offence mentioned in the warrant has been taken,

and none can be taken until the conclusion of the “investigation procedure stage”. Only then, according to the vice procureur, will

the investigating judge notify him “either that he is, or that he is not, indicted”. The presentation of this expert opinion has taken the

ground from under the Minister’s case as it was argued, and no alternative route to the same conclusion has been suggested to the

Court. In my view, there is no such alternative route.

86. Accordingly, I would hold that the Court is bound, by the express terms of s.21A(1) to refuse to surrender Mr. Bailey. I would also

find that, on the basis of the material transmitted by the French authorities, through the Central Authority, the presumption in the

following subsection has been rebutted or, in the words of the Act, that “the contrary is proved”.

The Section 44 point.

87. Mr. Bailey also independently objects to his forcible delivery to France on the basis that it is prohibited by s.44 of the Act of

2003.

88. Section 44 of the European Arrest Warrants Act 2003, provides as follows:

“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 permitted in a place other

than the State, constitute an offence under the law of the State.”

(Emphasis supplied)

89. It appears that this section is intended to give effect to the 4.7 of the Framework Decision. This article is headed:

“Grounds for optional non-execution of the European arrest warrant

The executing judicial authority may refuse to execute the European Arrest Warrant:

7. Where the European arrest warrant relates to offences which:

(a) are regarded by the law of the executing Member State as having been committed in whole or in part in the

territory of the executing Member State or in its place treated as such;

or

(b) have been committed outside the territory of the issuing Member State and the law of the executing Member

State does not allow prosecution for the same offences when committed outside its territory”.

90. In this instance, France is “the issuing Member State; Ireland is “the executing Member State”.

91. On the hearing of this appeal, both sides, it appeared, agreed that s.44 represented an attempt to give effect, at least in part, to

Article 4.7 of the Framework Decision. If that is so, it is of particular importance because the section would represent one of the very

few instances where this State has actually availed of a power, or of an option, to decline forcibly to deliver a person from Ireland on

grounds that other countries have availed of: see the Sections of the French Penal Code cited elsewhere in this judgment. This

accounts for the existence of what, to me, are disturbing cases where Ireland will forcibly render its citizens and residents to

countries which, in similar circumstances, would not forcibly render its citizens to Ireland.

92. A number of differences between the Framework Decision and the corresponding part of the Irish statute will be noted. Amongst

them are that Article 4 of the Framework Decision confers an option not to execute a warrant in certain circumstances, and confers

that option on “the executing judicial authority”.

93. Section 44 of the Act of 2003, by contrast, prohibits surrender in the event that the two conditions mentioned in this Section are

met. These are the conditions which appear on either side of the emphasised conjunctive word “AND”, in the version set out above.

94. Secondly, it will be observed that section 44 of the Irish legislation makes no attempt to enact a prohibition on surrender, or an

option not to surrender simply on the grounds set out at subparagraph (a) in the Framework Decision: instead, both the first and the

second conditions set out in s.44 must be met before surrender is prohibited, whereas the Framework Decision is disjunctively

expressed. If, therefore, the case were to be decided on the Framework Decision above, Mr. Bailey would plainly be entitled to the

protection of Article 4.7(a). But the Irish Statute is very different.

95. Thirdly, the second condition refers to a situation in which the facts said to constitute the offence are not “constituting an

offence under the law of the State” whereas the second trigger for a refusal to execute the warrant in Article 4.7 is that “the law

of the executing Member State does not allow prosecution for the same offences when committed outside its territory.”

96. The wording of the Irish statute (I say nothing about the Framework Decision) is a little difficult to understand because of the use

of too many words and their deployment in a peculiar and rather unnatural order. I believe that the effect of the second part of s.44

can more naturally and comprehensibly be expressed as follows:

“and the act or omission does not constitute an offence under Irish law, by virtue of having been committed in a

place other than Ireland.”

97. As appears from the preceding section of this judgment, French law is apparently prepared to assert jurisdiction in respect of a

crime of sufficient gravity committed against a French citizen by a French or foreign national (re, anyone) anywhere in the world.

On the other hand, in a significant contrast, Ireland will exercise jurisdiction only over an Irish citizen for an extraterritorial offence

of murder, regardless of the nationality of the victim. Since there is no dispute about this I will not set out the provisions of s.9 of the

Offences Against the Person Act 1861 as adapted by the Offences Against the Person Act, 1861 (Section 9) Adaption Order 1973,

which brings that situation about, to which my colleagues have referred.

98. Mr. Bailey, of course, is not an Irish citizen, as the E.A.W. makes clear. He is, and always has been, British. He is living here quite

lawfully, just as very many Irish people live quite lawfully in Britain.

99. That being so, one returns to a consideration of s.44. There is no dispute that the first condition set out there for the prohibition

of the surrender of a person has been met: the alleged offence specified in the European arrest warrant is plainly alleged to have

been committed in a place other than France, in Ireland. The entire issue arises from the second condition, as to whether the act

constituting the offence does or does not constitute an offence under the law of Ireland by virtue of having been committed in a

place other than Ireland.

100. One must ask what precisely is meant by the phrase:

“ 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.”

Approach to this Question.

101. I am happy gratefully to adopt the interpretation of the Section first proposed by the learned Chief Justice as follows:

“The Section prohibits the surrender of a person where the act of which the offence consists does not constitute

an offence in Ireland, by virtue of having been committed, i.e. because it was committed, in a place other than

Ireland.”

102. Since the offence alleged here was in fact committed in Ireland, the requirement in the section to consider whether the facts

alleged do not amount to an offence in Ireland, because they were committed outside Ireland, obviously requires consideration of a

counter-factual hypothesis. This is what the Court is compelled to consider by the legislation, as will be illustrated below.

Principles of Interpretation.

103. For the purpose of this judgment, and without deciding any more general point, I accept that this Court is to interpret the Irish

legislation “as far as possible in the light of the wording and the purpose” of the Framework Decision. In particular, in this case, it

must be considered in light of Article 4.7 thereof. But this cannot involve construing the Irish Act contra legem e.g. by the

disregarding of the wording of the Irish Act, by the deletion of words from it or by the addition of words to it, or, for example, by

ignoring of the fact that whereas the Article 4 of the Framework Decision gives an option to the executing judicial authority, s.44 of

the Irish Act is couched as a prohibition against execution of the warrant in certain circumstances.

An international example.

104. It may be useful, in view of the considerable difficulties involved in interpreting the Irish statutory text, to consider how the

Framework Decision including Article 4.7 has been transposed into the law of another Member State. I propose to take the example of

France, not simply because it is the requesting country in this instance, but because of the extremely transparent French process of

annual re-issuing of legislation which is a feature of its governmental practice, so that one can speak of the 2012 edition of the Penal

Code, the Code of Criminal Procedure etc., and also because of its excellent Legifrance service, an official government service for

French legislation, together with commentary. This is available on legifrance.gouv.fr and is described as “le service public de l’accès

au droit” or “the public service for access to law”. On it can be found the Constitution of France, the legislative provisions which are

“en vigueur” together with European law instruments and international law instruments. The ability to find, in one place, all the law

actually in force is a refreshing contrast with the position in Ireland. The service also makes its contents available in English and

Spanish. Comment or contrast with the position in Ireland is both painful and is unnecessary. In what follows, translation of French

material comes from this source, unless otherwise stated.

105. The Framework Decision was given effect in French law by the addition to the Code de Procédure Pénale of some fifty new

Articles. These are contained in Title X of the Code entitled “International Judicial Co-operation”, under Chapter IV, entitled “The

European Arrest Warrant and Procedures for Transfers between Member States resulting from European Council Framework Decision of

13 June, 2004”. Chapter IV contains all the fifty articles referred to, divided into four sections vis:

General Provisions (Articles 695-11 – 695-15)

Provisions relating to the issuance of the European arrest warrant by the French authorities (Article 695-16 – 695-

21)

Provisions relating to the execution of European arrest warrants issued by foreign authorities (Article 695-22 – 695-

46), and

Transit (Articles 695-47 - 695-51).

106. I now propose to look briefly at the French treatment of certain circumstances akin to those arising in this case. This is of

interest for the interpretation of the Irish legislation because it is to be presumed that the French provisions accurately and fairly

reflect the wording, and the purpose, of the Framework Decision.

107. Article 695.22 provides for the refusal of execution in certain cases namely:

“(4) where the offence for which it [the European Arrest Warrant] has been issued may be prosecuted and tried by

the French courts and the limitation period for prosecution or for executing the sentence has expired”.

108. The foregoing is the translation of the French text:

“(4) Si les faits pour lesquels il a été émis pouvaient être poursuivis et jugés par les juridictions françaises et que la

prescription de l'action publique ou de la peine se trouve acquise."

109. It may be noted, incidentally, that the text in both English and French distinguishes between prosecution on the one hand, and

trial on the other (“may be prosecuted and tried;” pouvaient être poursuivis et jugés). This if of interest in relation to the s.21A

ground of objection, above.

110. Equally, Article 695.24 provides that :

“The execution of a European Arrest Warrant may be refused:

1° if the requested person has been the subject of proceedings by the French authorities or these authorities

have decided not to initiate a prosecution or to put an end to one in relation to the offences for which the

arrest warrant has been issued;2° if the person wanted in relation to the execution of a custodial sentence or

safety measure is a French national and the competent French authorities undertake to put it into execution;

3° if the matters in respect of which it was issued were committed wholly or partly on French national

territory;

4° if the offence was committed outside the territory of the issuing member state and French law does not

permit the prosecution of the offence where it is committed outside French national territory.”

(Emphasis added)

111. Or, in the original:

"1º Si, pour les faits faisant l’objet du mandat d’arrêt, la personne recherchée fait l’objet de pousuites devant les

juridictions françaises ou si celles-ci ont décidé de ne pas engager les poursuites ou d’y mettre fin ;

2º Si la personne recherchée pour l’exécution d’une peine ou d’une mesure de sureté privatives de liberté est de

nationalité française et que les autorités française compétetes s’engagent a faire procéder a cette exécution ;

3º Si les faits pour lesquels il a été émis ont été commis, en tout ou en partie, sur le territoire français ;

4º Si l’infraction a été commise hors du territoire de l’État membre d’émission et que la loi française

n’autorise pas la poursuite de l’infraction lorsqu’elle est commise hors du territoire national."

(Emphasis added)

112. This last provision 695.24(4), is the corresponding provision to our s.44’s second phrase.

113. In the commentary on this Article in the Dalloz, 2012 edition of the Code it is stated that the investigating chamber may refuse

to execute the European arrest warrant where the Acts were partially committed on French territory. The commentary cites three

separate decisions, bearing record nos. 04-83.662, 04-83.663 and 04-83.664 of the Criminal Chamber of the Court of Cassation of 8th

July, 2004. These concerned appeals by the Attorney General against the decisions of the investigating chamber of the Court of

Appeal of Pau, refusing the surrender of three suspected terrorists (Aritza X, Amaya X and Yves X) to the Spanish authorities on foot

of a European arrest warrant. The cases were appealed by the authorities for alleged violation of Articles 113.2, already quoted in this

judgment and various sections of the fifty article code implementing the Framework Decision.

114. The order of the Cour de Cassation, insofar as relevant, is as follows:

“Attendu qu'il résulte de l'arrêt attaqué et des pièces de la procédure qu' [Aritza X.../Amaya X.../Yves X...] devant

la chambre de l'instruction ...a refusé de consentir à être remise aux autorités judiciaires espagnoles ;

Attendu que, pour refuser l'exécution de ce mandat, l'arrêt ... énonce qu'ils auraient été commis pour partie sur le

territoire français;

Attendu qu'en cet état...la chambre de l'instruction a fait l'exacte application de l'article 695-24, 3 , du Code de

procédure pénale ;

D'où il suit que les moyens ne sauraient être admis ;

Et attendu que l'arrêt a été rendu par une chambre de l'instruction compétente et composée conformément à la loi,

et que la procédure est régulière ;

REJETTE le pourvoi".

115. This may be translated as follows :

“Whereas it follows from the judgment under appeal and from the court records that [Aritza X…/Amaya X…/Yves

X…] was apprehended…by virtue of a European arrest warrant issued…by an investigating judge of the Audiencia

Nacional d’Espagne for the purpose of criminal prosecution before the examining chamber… refused to consent to be

surrendered to the Spanish judicial authorities;

Whereas, to refuse the execution of this warrant, having reiterated that the offences are… provided for by Article

695-23 of the Code of Criminal Procedure, the judgment recites that these [offences] were committed in part on

French territory;

Whereas in these circumstances...the examining chamber correctly applied Article 695-24,3 of the Code of Criminal

Procedure;

Hence it follows that the grounds of appeal are not made out;

And whereas the judgment was rendered by a court of competent jurisdiction and in accordance with the law, and

in the absence of procedural irregularity;

The appeal is dismissed”.

116. Thus, the lower court was entitled to refuse delivery to Spain on the ground that the offences were “committed in part” in the

territory of the executing State (France).

Effect of the foregoing.

117. The effect of the foregoing provisions of French law appear to me to be that if the boot were on the other foot, if Ireland made

a request to France for the delivery of a British citizen, like Mr. Bailey, from France to answer in Ireland a charge that he had

murdered an Irish person in France, in circumstances otherwise identical to those of the present case, such an application would be

liable to refusal on a number of grounds.

118. The most obvious of these grounds are, to continue the analogy with the present case, “the French authorities have decided

not to initiate a prosecution” [Article 695.24(1)]; that the matters in respect of which the warrant was issued “were committed

wholly or partly on French national territory” [Article 695.24(3)]; and perhaps others.

119. A third available ground of objection is particularly suggestive. The French Code citation in question is Article 695.24(4) of the

Code de Procédure Pénale. This deals with an offence committed outside the territory of the State which issues the European arrest

warrant (France in the example taken). If such a request is made to France (instead of by France, as here) the question is whether

French law permits or does not permit the prosecution of the offence when it is committed outside French national territory. This is

the question which arises as a matter of French law, it appears to me, whether or not the offence was in fact committed outside

French national territory.

120. The foregoing exploration of French law on some of the questions raised in this case is, of course, by no means conclusive of the

position in Irish law. It is possible, though perhaps unlikely, that the Irish legislature has less amply provided the Courts with powers of

a protective or a defensive nature against a European arrest warrant, than the French legislature has.

121. The real relevance of the French legislative provisions is that they, like the Irish ones, are designed to transpose into national

law the provisions of the Framework Decision. It is clear from a consideration of s.44 of the Irish Statute and para. 695.24(4) of the

French Code, that each provision is directed as implementing, in the relevant country, Article 4.7(b) of the Framework Decision. It is,

on that account, that the French provision cited is a useful and suggestive aid to the construction of the Irish statute enacted to the

same end. Each provision addresses the same situation: forcible delivery is sought for an offence which was not committed in the

territory of the issuing State. Perhaps it was committed in the territory of the executing State, or perhaps it was committed in the

territory of a third State. There is no other possibility. Neither the Irish, nor the French, legislation distinguishes those situations. But

in either case, delivery from France may be refused if French law does not permit the prosecution of the [i.e. the same] offence when

it is committed outside France.

122. This, as it happens, precisely reflects the conclusion which I have come to in relation to s.44 of the Irish Statute. The French

provision is both more elegantly and more precisely worded, and therefore easier to construe. But that, in itself, would mean nothing.

What it signifies is that the Irish and French provisions are each attempts to implement the same part of the Framework Decision. The

clear French provision therefore fortifies me in the conclusion to which I have come about the less transparent Irish provision.

123. As I have mentioned, neither the French nor the Irish provision distinguishes in its terms between an offence committed in the

executing State, and an offence committed in a third country. Once this is realised, the conclusion I have mentioned above becomes

inevitable. But in the High Court judgment in the present case this inevitable result is avoided by holding that s.44 prohibits surrender

only in respect of offences which are committed in neither the issuing nor the executing State. It is to this central finding that I now

turn.

The High Court Judgment.

124. The learned High Court Judge, in the course of his judgment, adopted a very particular and, in my view, rather forced

construction of s.44. In the course of doing so, in my view, he effectively amended the section. Having declared that he would

“interpret s.44 by reference to any other relevant Sections of the Act of 2003, and in the light of the aims and objectives of the

Framework Decision” he declared that it was not contra legem (against the law) to hold that s.44 of the Act of 2003 only prohibits

surrender in respect of offences which are committed in a country other than the issuing State (France) and other than this State

(i.e. in a third State). Therefore the section did not apply at all in this case.

125. Apart from the dubiety, as I see it, of amending or drastically glossing a section of a statute in that fashion, I cannot see any

basis, legal or logical, for the interpretation of s.44 which the learned trial judge propounds. It was the Minister’s case that the

legislation makes no attempt, in s.44 or elsewhere, to import the provisions of Article 4.7(a) of the Framework Decision. Secondly,

neither the Framework Decision nor the Act contain anything to suggest that either has in contemplation only a crime committed in a

third State i.e. neither Ireland nor France. In my view this is simply the reading of words into the statute which the Oireachtas did not

consider proper to use in the section.

126. The fact that the Framework Decision makes no attempt to limit the effect of the relevant portion (Article 4.7) to “third country”

cases, that is to cases where the crime is alleged to have occurred in a country other than the issuing State (here, France) or the

executing State (here, Ireland), is in my view fatal to the basis of the learned trial judge’s interpretation. If the Framework Decision is

silent on this topic, and it appears to me to be silent, it cannot form the basis of an “interpretation” of s.44 along the lines suggested.

Even more fundamentally, the reading of words into a statute cannot fairly be described as an interpretation of that statute.

Section 44.

127. Having thus been respectfully critical of the learned trial judge’s approach, I must immediately concede that the section is not

easy to construe. I repeat that this is the fault of the draftsmanship, particularly a tendency to use too many words and to use them

in an odd order. In this case, the offence was undoubtedly committed in Ireland, so that there is no question of it not being a crime in

Irish law. On one view, but in my opinion a simplistic one, that logic would operate to disapply the section.

128. But that, I think, is not the correct interpretation of the section. Like Fennelly J., I have derived considerable assistance from

the very fine text book written by Mr. Remy Farrell S.C. and Mr. Anthony Hanrahan B.L., “The European Arrest Warrant in Ireland”

(Clarus Press, Dublin , 2011. Like Fennelly J. I consider it remarkable this authoritative source was not expressly mentioned in

argument. I wish to express my entire agreement with what is said at para. 12-21 about s.44 in its application to a case like this:

“Where it is clear that the offence in the warrant is an extraterritorial offence, the court must consider whether the

offence would be amenable to prosecution on an extraterritorial basis in this jurisdiction. This, clearly, amounts

to the court engaging in a hypothetical test whereby it essentially substitutes the State for the position of the

requesting State in relation to the offence described in the warrant”. (Emphasis added)

129. I do not easily yield to the proposition that the section enjoins a hypothetical test on the Court. But having considered the

section at considerable length I believe it is open to no other interpretation. The learned authors continue:

“Presumably where the place of commission of the offence is Ireland the court must essentially ignore this

fact and assume for the sake of the exercise that the place of the offence is another State. It is less clear what

the position is where the requesting State has asserted extra territorial jurisdiction on a particular basis Is the Court

restricted to considering whether the State would exercise as extraterritorial jurisdiction on the same basis or can it

consider whether extraterritorial jurisdiction might be exercised on an alternative basis? The Act provides little

assistance in this regard. However, the underlying principle of reciprocity would seem to predicate in favour of the

Court being restricted to considering whether extraterritorial jurisdiction could be exercised in theory on a similar

basis as opposed to on some other ground”.

130. In my view this construction arises from the words of s.44 itself, and from their being rooted, via Article 4.7 of the Framework

Decision, in the principle of reciprocity. I entirely agree with Fennelly J.’s lucid treatment of the historical origins of this principle. I

would indeed go further than Fennelly J. felt able to go at an earlier point in his judgment: I do consider it clear that a principle of

reciprocity underlines the extradition of suspects accused of committing extraterritorial offences. It is unnecessary to consider the

need for reciprocity in other circumstances.

131. In considering s.44 it is necessary to bear in mind the contents of the provision of the Framework Decision which it was

endeavouring to implement. This permitted a judicial authority to refuse to execute a warrant if (at 4.7(b)) the warrant related to

offences which:

“have been committed outside the territory of the issuing member state [France] and the law of the executing

member state [Ireland] does not allow prosecution for the same offences when committed outside its territory”.

132. This plainly raises the legal status in Irish law of offences committed outside Irish territory. But the offence here was in fact

committed within Irish territory, so the exercise required by the Framework Document, and by s.44, is necessarily a hypothetical one.

To those who consider this over elaborate and unduly removed from the facts of the present case, I can only say that I do not

disagree, but that the exercise required to be carried out is that enjoined by the statute and the Framework Decision, and there is

nothing the Court can do about that.

133. I am fortified in these conclusions by a citation from another distinguished text book, Blextoon and Van Ballegooij Handbook on

the European Extradition Warrant [2005]. At p.74 the following is said:

“Only one provision in the Framework Decision alludes to the principle of reciprocity. According to Article 4, section

7 sub. (2) the executing judicial authority is allowed to refuse the extradition of a European Arrest Warrant,

whenever such a warrant envisages offences which may have been committed outside the territory of the issuing

Member State and the law of the executing Member State does not allow prosecution for the same offence when

committed outside the territory of the executing Member State. In the corresponding situation the executing State

would simply not be able to issue an arrest warrant due to a lack of jurisdiction. The provision restores the

equilibrium by offering this state the possibility to restrict the scope of its performances to its own expectations in

similar circumstances. The Section mirrors Article 7, section.2 of the European Convention on Extradition”.

134. Having regard to the total difference between the manner in which Ireland and France exercise extraterritorial jurisdiction over a

non-national in relation to a murder committed outside their respective territories, I agree with the learned Chief Justice that there is

no reciprocity between Ireland and France on the facts of this case.

135. I wish to emphasise my agreement with the contents of the judgment of Fennelly J., commencing with the assertion that “a

sensible and fair interpretation of Article 4.7(b) demands the recognition of a principle of reciprocity”. Viewed in that light, I agree

that the second phrase of s.44 can only refer to a corresponding but (for that very reason) hypothetical offence of murder committed

outside Ireland. I also agree that the issue is whether the crime of murder generally, when committed outside Ireland would

“constitute an offence under the law of the State”.

136. Viewed in that light, I agree with the conclusion of Fennelly J. that it is quite possible to interpret s.44 in conformity with Article

4.7(b).

137. The crime here was committed not only outside France, but in Ireland.

138. If the positions were reversed, a murder outside Ireland is not a crime in Irish law, unless committed by an Irish citizen.

139. Mr. Bailey is not an Irish citizen (and, in any event, the D.P.P. has determined there is no case against him).

140. Section 44 operates to preclude his forcible delivery to France because Irish law does not confer a power to prosecute on the

same basis as France: there is an absence of reciprocity.

141. I would refuse to deliver Mr. Bailey to France on this ground independently. In view of this, I do not think it necessary to go on

to consider Mr. Bailey’s objections under s.42 or to hear and decide his objections under s.37. Whether Mr. Bailey won or lost on

these grounds, it would make no difference to the fact that his forcible delivery to France must be refused. For the same reason, it is

not necessary to go into the objection to delivery grounded on s.37.

Conclusion.

142. I would refuse to order the forcible delivery of Mr. Bailey to France.