From top: Sophie Toscan Du Plantier; Ian Bailey (left); John D Fitzgerald SC
On RTÉ’s Morning Ireland.
Barrister John D Fitzgerald SC spoke to Rachel English about the decision yesterday by Mr Justice Donald Binchy, in the High Court, to endorse a European Arrest Warrant issued by France for West Cork-based British former journalist Ian Bailey.
Mr Bailey was arrested and released on bail following the endorsement and will appear in the High Court again on January 20th, 2020, but his case will be up for mention this Friday.
The endorsement of the warrant marks the third time that French authorities have sought Mr Bailey’s surrender in relation to the death of filmmaker Sophie Toscan du Plantier, who was found dead outside her holiday home in Schull almost 23 years ago, in December 1996.
The issuing of the warrant, and yesterday’s endorsement of the same, followed Mr Bailey being convicted of Ms Du Plantier’s murder in his absence in a Paris court earlier this year.
The three-judge Cour d’Assises in Paris imposed a 25-year prison sentence on him in his absence. Mr Bailey did not attend the French court and had no legal representation. He described the proceedings as a “farce”.
Documents which emerged in November 2011 showed that the late former Director of Public Prosecutions Eamon Barnes believed the Garda investigation into the murder was “thoroughly flawed and prejudiced” against Mr Bailey.
Mr Bailey has always denied any involvement in Ms Du Plantier’s death.
Further to this…
Rachel English: “This isn’t the first time that France has requested Ian Bailey’s extradition. What happened before?”
John Fitzgerald: “No, it’s not the first time. And this is in fact the third. This represents the latest in a series of requests by the French authorities stretching back almost 10 years.
“The Supreme Court refused to surrender Mr Bailey for the first time in 2012 on a number of grounds, the most important perhaps, for present purposes, of which was that we [Ireland] at the time didn’t prosecute for extraterritorial offences, unless those offences were committed by an Irish citizen.
“The French then returned with a warrant in 2017. That was dismissed in fairly firm and trenchant terms by Mr Justice [Tony] Hunt in the High Court who dismissed it as an “abuse of process”.
“But since then there have been a number of changes which have, certainly in the view of the French authorities, enabled them to come again, namely Mr Bailey has been tried in his absence in May of this year and convicted in his absence.
“Secondly, and perhaps most importantly, one of the basis of the Supreme Court judgment in 2012 was changed by legislation this year, in April of this year, to allow for us to prosecute offences committed abroad by persons who are ordinarily resident in Ireland which, in other words, would apply to Mr Bailey.”
English: “Right, so not only has he been convicted of the murder in his absence in France, the law here has changed as well. Now he was given bail yesterday. So what are the likely next steps in this process?”
Fitzgerald: “Well the next step is that it will proceed to a hearing. I mean I suppose it’s important to emphasise that what happened yesterday was simply an endorsement hearing and that is, really, something of a box-ticking exercise, merely to make sure that the warrant complies in very broad terms with the statute.
“It certainly doesn’t provide any basis, on its own, for his surrender. So what will happen now is, I imagine detailed enough points of objection by his lawyers will be filed and the matter will proceed to a further hearing in a few months.”
English: “If he was extradited, would he be given another trial?”
Fitzgerald: “Well, that’s a very interesting question because there’s always been something of a difficulty with European Arrest Warrants in relation to people who are tried in their absence. We don’t do it. Common law countries, such as Ireland and the UK, it’s almost unheard of that we would try people in their absence.
“It is done more commonly on the continent. And in order to make the system work, we only allow the surrender of people who are tried in their absence unless they were aware of the trial or had been personally summoned. Or else, if they weren’t aware, they’re given a guarantee of a full retrial.
“Now, what will be interesting about this warrant when we see it and I should emphasise I haven’t seen it. It’s been given to the parties but I haven’t seen it. What will be interesting is given that it seems that Mr Bailey was at least to some extent aware that the trial was going on, because it was widely covered at the time, he was certainly aware of it, he didn’t however take part in it to any extent.
“So it will be interesting to see whether the French authorities are offering him a full retrial. There was some media commentary at the time that he would but I suppose, more importantly, the nature of that retrial, mainly whether the conviction will be entirely set aside and it would be a full trial as we would recognise it, namely by the examination of witnesses, etc.”
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Solicitor Frank Buttimer in 2015
Following the decision in the High Court…
Mr Bailey’s solicitor Frank Buttimer spoke to Ivan Yates on Newstalk.
Ivan Yates: “Frank, what’s your reaction to today’s court decision?”
Frank Buttimer: “It’s really a reaction of outrage Ivan that the State, through the Minister for Justice’s office, is continuing to pursue, and indeed in my view, assist the persecution of Ian Bailey.
“What’s going on here, although one has to respect, if you like, the function of the High Court because it’s merely being asked to do something. But the way in which our State is facilitating an endless persecution of Ian Bailey is, to me, leave aside the fact I’m Ian Bailey’s lawyer, just like, as a citizen of this country, I just think it’s an absolute outrage at this point in time.”
Yates: “But we are part of a European Union with France in terms of free movement, of capital goods, of people. Surely there should be common extradition arrangements?”
Buttimer: “There is a common extradition arrangement, Ivan. That’s why we’re having this discussion. But the idea behind the institution of the EAW [European Arrest Warrant] system, is that it is based upon the concept of mutual respect between the member countries of the system.
“I would propose that the French are demonstrating zero respect for our system by persecuting Ian Bailey in circumstances where they are saying to us, first of all, way back in 2010, followed up in 2016, ‘why don’t you send him over to us to be prosecuted since you people are not going to do anything about it? Regardless of the fact that your DPP has not only repeatedly decided that he would not be prosecuted but your DPP has found that the evidence gathered against Mr Bailey was done so in a thoroughly flawed and prejudiced manner but why don’t you send him over to us and we’ll try him in France?’
“That itself is showing no respect, I would have suggested, to our system of justice. However, having been told twice that he could not be extradited, that there was not a reciprocity of criminality so that you cannot have him, they go behind our back again and in 2019, back around May or June, they try him again, knowing that he couldn’t be sent to be tried in the first place and they say, ‘well, look, we’ve had a trial now anyway, which is a show trial by the way, and why don’t you send him over, so that we can get him to serve the 25 years that we’ve given him’.
“I would suggest to you that that is the antithesis of respect.”
Yates: “How could or would the Irish Government say ‘no’ to this extradition request?”
Buttimer: “They should have said ‘no’ at the very, very beginning when the French came over in 2008 and asked us to provide our police file to allow them to start off what they were doing way back then but of course they didn’t and I have absolutely no doubt that knowing that there were some fundamental flaws and issues in relation to the police investigation, they sent off the file, with no checks and balances.
“The French, of course, with the bloodlust they’ve demonstrated in relation to Ian Bailey decided to use that evidence, to seek his extradition as far back as 2010.
“All of this is based on the decision to send that material in the first place and, since then, people should understand that the assistance of the kind that the French are seeking is not mandatory, it’s optional, and there are circumstances where the minister, who should have refused it in the first place in terms of giving the file, should then of course have said either in 2010 or beyond ‘well, no, we’re not going to give you assistance because we’ve decided already that there’s something fundamentally wrong with the thing in the first place so don’t you be having any kind of funny little show trials over there’.
“But no, we sent it on out and we continue to, you know, do the French bidding by doing what we’re doing.”
Yates: “Do you not accept that Sophie’s family and the French authorities believe their side of the story?”
Buttimer: “That’s of no concern to me. What I accept is, that in this country, which is the country for whose legal system I have respect, our country has said that Ian Bailey should not be tried and has repeatedly said that I have a fundamental knowledge of what has happened in relation to this case and I think that the mockery of the situation over in France, you should have seen what happened in that so-called trial, over a three-day period, and the manner in which the thing proceeded.
“Ian Bailey has constantly expressed his sympathies for the family…”
Yates: “But, Frank, why didn’t you turn up at that French trial? If you’re representing Ian Bailey, I could understand why he himself wouldn’t go over, but why didn’t you have some representation there to put your side of the story?”
Buttimer: “Because it wouldn’t have been heard.”
Yates: “How so? Surely he was entitled to a defence?”
Buttimer: “He wasn’t entitled to any defence. And he was determined to be guilty over there before there was ever a trial. That’s why.”
Yates: “All right, so what happens now?”
Buttimer: “Well the case has been adjourned until the 20th of January to allow us to make submissions to the High Court in relation to the reasons why we feel this grotesque travesty of justice should not be furthered.
“The State will then probably put in replies to our submissions and the High Court will determine the issues that are to be determined.”
Buttimer: “He’s a prisoner in this country, he can’t leave, his life has been fundamentally destroyed by what’s been done to him.”
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