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Cite as: [2012] IESC 16, [2012] 4 IR 1

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Judgment Title: Minister for Justice Equality and Law Reform v Bailey

Neutral Citation: [2012] IESC 16

Supreme Court Record Number: 174/2011

High Court Record Number: 2010/144 EXT

Date of Delivery: 01/03/2012

Court: Supreme Court

Composition of Court: Denham C.J., Murray J., Hardiman J., Fennelly J., O'Donnell J.

Judgment by: Denham C.J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
Denham C.J.	Link	Appeal allowed - set aside High Court Order
Murray J.	Link	Appeal allowed - set aside High Court Order
Hardiman J.	Link	Appeal allowed - set aside High Court Order
Fennelly J.	Link	Appeal allowed - set aside High Court Order
O'Donnell J.	Link	Appeal allowed - set aside High Court Order

Outcome: Allow And Set Aside

THE SUPREME COURT

[Appeal No: 174/2011]

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 March, 2012 by Denham C.J.

1. This appeal arises in unique circumstances and raises unprecedented questions of law.

2. A European Arrest Warrant, hereinafter referred to as “the warrant”, was issued by the Republic of France and dated the 19th February, 2010, in respect of Ian Bailey, the respondent/appellant, referred to as “the appellant”. The warrant relates to the murder of Mme. Sophie Toscan du Plantier, a French citizen, on or about the 23rd December, 1996, in Schull, County Cork, Ireland.

3. The appellant has resisted his surrender pursuant to the warrant to France.

4. On the 18th March, 2011, the High Court (Peart J.) delivered a judgment and ordered the surrender of the appellant to the French authorities. However, on the 13th April, 2011, the High Court certified that the decision involved a point of law of exceptional public importance. Thus, the appellant has brought an appeal to this Court, pursuant to s. 16(12) of the European Arrest Warrant Act, 2003, as amended by s. 12 of the Criminal Justice (Miscellaneous Provisions) Act, 2009.

Certified Question
5. On the 13th April, 2011, the High Court certified that the following is a point of law of exceptional public importance and that it is in the public interest that an appeal should be taken to this Court:-

“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.”

Grounds of Appeal
6. The appellant filed a Notice of Appeal on the 15th April, 2011, in which the grounds of appeal were stated as follows:-

The learned High Court judge erred in law and/or in fact or in a mixed question of law and fact in that he:

(i) found there was jurisdiction to surrender the appellant pursuant to the European Arrest Warrant Act, 2003;

(ii) found that there was jurisdiction to surrender the appellant in that he found that the prohibition on surrender contained in s. 44 of the Act of 2003 related only to cases where the offence for which surrender is sought was committed outside the territory of the State (Ireland) and the issuing state;

(iii) found that s. 42(c) of the Act of 2003 as originally enacted did not prohibit the surrender of the appellant in that he found that the scope of the amendment to section 42 of the Act of 2003 contained in s. 68 of the Criminal Justice (Terrorist Offences) Act, 2005 was such that the said amendment applied to the European Arrest Warrant issued in respect of the appellant;

(iv) found that the surrender of the appellant, in the circumstances of the case, was not:

(a) an abuse of process, or

(b) contrary to s. 37 of the Act of 2003, or

(d) oppressive, invidious or unjust;

(v) found that the surrender of the appellant was not prohibited by s. 21 A of the Act of 2003, in other words that the learned trial judge ought to have been satisfied that a decision has not been made to charge the appellant with, and try him for, the offence (for which surrender is sought) in the issuing state;

(vi) found as a fact that, as a matter of French law, before the criminal proceedings in the issuing state could proceed, the attendance of the appellant was required before the juge d’instruction in the issuing state;

(vii) made findings of fact in regard to French law based on sections of the French legal criminal code not properly adduced in evidence and in respect of which the parties did not have an opportunity to consider and/or make submissions;

(viii) failed to require the provision of additional documentation pursuant to s. 20(1) of the Act of 2003, whether to determine the ground as set out at paragraph 5 above or otherwise.

Background Facts
7. The background facts were stated by the High Court (Peart J.), from which account I set out the following summary:-

7(i) The surrender of the appellant is sought by a judicial authority in France on foot of the warrant which issued there on the 19th February, 2010. That warrant was transmitted to the Central Authority here, following which, on the 23rd April, 2010, it was endorsed for execution by the High Court. On that date also, the appellant was arrested. On the following day he was brought before the High Court as required by s. 13 of the European Arrest Warrant Act, 2003 as amended, and has been on bail since that date pending the completion of this application.

7(ii) The warrant states that surrender is sought for the purposes of prosecuting the appellant on a charge of murdering Mme. Sophie Toscan du Plantier, a French citizen, on the night of 22nd /23rd December 1996 in West Cork, Ireland.

7(iii) An unusual aspect of this application for surrender is that the murder in question occurred in this State and not in France. However, the victim of the murder was a citizen of France, and under the laws of France, the French courts have jurisdiction to prosecute and put on trial an accused in relation to the murder of a French citizen even where it occurs outside France.

7(iv) Another unusual feature of this case is that the appellant was questioned by An Garda Síochána here following the death of Mme. Sophie Toscan du Plantier, as were a considerable number of other persons. A file was sent to the Director of Public Prosecutions, referred to as ‘the DPP’, and a decision was made that the appellant would not be prosecuted on any charge relating to her death. A letter dated the 5th July, 2010, from the DPP to the appellant’s solicitor, Frank Buttimer, confirmed this, and further stated that the file has been reviewed on a number of occasions since that decision was made, and most recently in 2007. The DPP stated again that on all occasions the original decision not to prosecute the appellant was confirmed. In accordance with the DPP’s general policy no reasons for this decision were given, but it was stated in the letter that it was in accordance with the DPP’s Guidelines for Prosecutors available on the DPP’s website.

Issues
8. There are four main issues on this appeal. They are:-

(i) The meaning and application of s. 44 of the European Arrest Warrant Act, 2003, referred to as ‘the Act of 2003’.

(ii) The meaning and application of s. 42 of the Act of 2003, and its amendment by the Criminal Justice (Terrorist Offences) Act, 2005, referred to as ‘the Act of 2005’.

(iii) The meaning and application of s. 21A the Act of 2003, as amended by the Act of 2005.

(iv) Section 37 of the Act of 2003, and submissions on fair procedures and abuse of process.

Motion
9. On the 13th January, 2012, the appellant brought a motion to this Court seeking, inter alia, liberty to adduce new evidence in the proceedings. This new evidence was referred to as:-

(a) disclosure material as set out in the letter from the DPP to the solicitors for the appellant (including enclosures) dated the 4th November, 2011; and

(b) disclosure material as set out in the letter from the Mutual Assistance Division of the Department of Justice (including enclosures) to the solicitors for the appellant dated the 9th November, 2011.

10. The Court granted the application on the 13th January, 2012, and indicated that it would give its reasons at a later date.

11. The new evidence was advanced as being material and especially relevant to the fourth issue.

12. The appeal commenced before the Court on the 16th January, 2012. On the 18th January, 2012, Mr. Barron S.C., counsel for the Minister for Justice and Equality, requested the Court to decide the first three points of law which had been argued at that time, before considering the fourth issue. This application was made after a new document from the French authorities was before the Court on the 17th January, 2012, with the English translation proffered on the 18th January, 2012. Mr. Giblin, S.C., counsel for the appellant, referred to the distress of the appellant and his family during these proceedings, and stated that it was a pity that the new document from the French authorities had not been before the High Court. He stated that his instructions were not to object to the Court dealing with the three legal issues at this stage. He stated that his client accepted that this would be best.

13. Consequently, the Court reserved judgment on the first three issues raised in this appeal, and adjourned the balance of the appeal.

14. I will address the three issues in the order in which they were argued before the Court. Thus, the first issue arises on the meaning and application of s. 44 of the Act of 2003

Section 44 and extra-territoriality
15. 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.”

16. The appellant, who, though resident in West Cork for many years, is a citizen of the United Kingdom, submitted that surrender is prohibited under the provisions of s. 44 of the Act of 2003, since the offence was committed outside the issuing State (France), and the law of the executing State (Ireland) does not permit the prosecution in the State of an offence of murder committed outside the State where the accused person is other than an Irish citizen. As provided for in s. 9 of the Offences Against the Person Act, 1861, as amended, only an Irish citizen is amenable to such a charge in this State. The section stands to be interpreted in the light of the provisions of Article 3 of the Offences Against the Person Act 1861 (Section 9) Adaption Order, 1973 (S.I. 356 of 1973).

17. In the circumstances of this case the alleged offence was not committed in the issuing state – France. The query then arises as to whether s. 44 covers the situation in this case, where the alleged offence occurred in Ireland. It is a question of construing section 44.

18. The High Court interpreted s. 44 by reading into it the additional words: “and other than this State”. The learned High Court judge held:-

contra legem

to hold that section 44 of the Act of 2003 prohibits surrender in respect of offences which are committed in a country other than the issuing state

and other than this State

(i.e. in a third state), and where under the law of this State such an offence does not, by reason of having been committed in a third state, constitute an offence. That does not do violence to section 44 when one considers section 42 and the Framework Decision in tandem with it.

I conclude therefore that surrender is not prohibited by the provisions of section 44 or Article 4.7 of the Framework Decision and in particular paragraph (b) thereof. “

[Emphasis added]

19. The Framework Decision provided grounds for optional non-execution of a warrant. It states in Article 4 that the executing judicial authority may refuse to execute the warrant in a number of circumstances, including, in paragraph 7:-

“4.7: 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 a place treated as such;

(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.”

20. The Framework Decision thus provides two options in Article 4.7 for non execution of a warrant. The choice of applying the options was made by the Oireachtas.

21. In Ireland, the initiating legislation was the Act of 2003. Article 4.7(a) was ultimately not incorporated as part of Irish legislation, and thus it is not an option open to the Court.

22. The option described in Article 4.7.b of the Framework Decision was implemented by the legislature in the provisions of s. 44 of the Act of 2003, which has not been amended in any later legislation and which retains the same wording since its enactment.

23. It appears to me that the words of s. 44 are clear: a person shall not be surrendered if two specific conditions are satisfied. The first part of the section states that:-

“A person shall not be surrendered under this Act if the offence specified in the European Arrest Warrant in respect of him or her was committed in a place other than the issuing State …”

The first of these conditions is that the offence was committed or alleged to have been committed in a place other than the issuing State. In this case the offence of murder of Mme. Toscan du Plantier took place in Ireland and thus outside the issuing State, which is France. Therefore, the first condition is met. However, this finding is insufficient to prohibit surrender under s. 44 of the Act of 2003 and it is necessary to consider the balance of the section, the second condition.

24. This first issue therefore turns on the meaning of the words in the balance of s. 44, which sets the second condition as:-

“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”.

It is helpful to read the third phrase before the second, in construing the meaning of the section. This would thus be:

“and the act or omission of which the offence consists does not, constitute an offence under the law of the State, by virtue of having been committed in a place other than the State”.

These are clear words and so may be considered and applied literally. 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.

25. The terms of s. 44 are an option, exercised by Ireland, grounded on Article 4.7.b. of the Framework Decision.

26. The European Arrest Warrant procedure is based on the concept of mutual trust and confidence between judicial authorities of the Member States. However, Article 4.7 of the Framework Decision and s. 44 of the Act of 2003 reflect other principles also. It is necessary to analyse the Article and the section to determine the issue raised by the appellant.

27. The travaux préparatoires on Article 4.7 of the Framework Decision, and thus on the foundations of s. 44 of the Act of 2003, are of interest. It is unfortunate that they were not opened to the Court by counsel.

28. The concept of reciprocity has long been utilised by States in making extradition treaties.

29. The European Convention of Extradition 1957 provided in its Article 7:

Article 7 – Place of Commission

“1. The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory.

2. When the offence for which extradition is requested has been committed outside the territory of the requesting Party, extradition may only be refused if the law of the requested Party does not allow prosecution for the same category of offence when committed outside the latter Party’s territory or does not allow extradition for the offence concerned.”

30. Article 26 provided for reservations, stating:-

“1. Any Contracting Party may, when signing this Convention or when depositing its instrument of ratification or accession, make a reservation in respect of any provision or provisions of the Convention.

2. Any Contracting Party which has made a reservation shall withdraw it as soon as circumstances permit. Such withdrawal shall be made by notification to the Secretary General of the Council of Europe.

3. A Contracting Party which has made a reservation in respect of a provision of the Convention may not claim application of the said provision by another Party save in so far as it has itself accepted the provision.”

31. The Explanatory Memorandum on Article 7 states:-

“Paragraph 1 permits a Party to refuse extradition for an act committed in whole or in part within its territory or in a place considered as its territory. Under this paragraph it is for the requested Party to determine in accordance with its law whether the act was committed in whole or in part within its territory or in a place considered as its territory. Thus, for example, offences committed on a ship or aircraft of the nationality of the requested Party may be considered as offences committed on the territory of the Party.

Paragraph 2 was inserted in order to take into account the law of countries which do not allow extradition for an offence committed outside the territory of the requesting Party. This paragraph provides that extradition must be granted if the offence has been committed outside the territory of the requesting Party, unless the laws of the requested Party do not authorise prosecution for an offence of the same kind committed outside its territory, or do not authorise extradition for the offence which is the subject of the request.

Under the terms of Article 26, a reservation may be made in respect of this paragraph, making it subject to reciprocity.”

32. Thus, under the previous Extradition system, where treaties were made between states, the specific treaty could make provision for a reservation, and make it subject to reciprocity.

33. The document dated 4th December, 2001, from the Permanent Representatives Committee, to Council, entitled “Proposals for a Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States”, 14867/01 COPEN 79 CATS 50 stated:

“3. Grounds for optional non-execution.

3.1 Grounds linked to the place where the act on which the grounds for the European arrest warrant was committed:

Several delegations (NL/EL/IRL/L,/DK/A and S) wanted to introduce additional grounds for optional non-execution, making it permissible to refuse to execute a European arrest warrant issued for acts committed in whole or in part on the territory of the executing Member State or committed outside the territory of the issuing Member State, if the law of the executing Member State does not allow prosecution of offences of the same type committed outside the territory of the executing Member State. This question should be examined together with the French proposal referred to in point 1 above.

The Presidency will make a proposal to COREPER/COUNCIL on this point as part of an overall compromise.”

The Framework Decision annexed (as of 4th December 2001) included:

”7. [Where the act on which the European arrest warrant is based was committed in whole or in part in the territory of the executing State or in a place treated as the territory of that Member State, and the competent authority of the executing State undertakes to conduct the prosecution or to execute the sentence

.]”

The footnote 2 stated:-

“NL (supported by EL/IRL/L/DK/A and S) has made a broader proposal, based on Article 7 of the 1957 European Extradition Convention:

‘Where the European arrest warrant envisages offences which:

(1) are regarded by the law of the executing Member State as having been committed in whole or in part in its territory or in a place treated as the territory of that Member State;

(2) 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 the territory of the executing Member State.’”

Thus, Ireland was one of the delegations seeking to introduce additional grounds for optional non-execution at this stage of the consideration of the proposed Framework Decision.

34. At the 2396th Council Meeting – Justice, Home Affairs and Civil Protection – Brussels, on the 6th and 7th December, 2001, the Council examined a draft Framework Decision on the European Arrest Warrant and the surrender procedures between Member States, on a compromise proposal. The Presidency was able to record the agreement of 14 delegations on its compromise. One delegation was unable to support the proposal. The main features of the compromise were:-

• The arrest warrant is broad in scope. In particular, it gives rise to surrender in respect of 32 listed offences … without verification of the double criminality of the act and provided that the offences are punishable in the issuing Member State by a custodial sentence of a maximum of at least 3 years.

• A territoriality clause making it optional to execute an arrest warrant in respect of offences committed in the executing State for acts which took place in a third State but which are not recognised as offences by the executing State.

• A retroactivity clause making it possible for a Member State to process requests submitted prior to the adoption of the Framework Decision under existing instruments relating to extradition.

35. On the 6th December, 2001, the Presidency noted agreement of 14 delegations on the draft Framework Decision, one delegation could agree only on a narrower list of offences in Article 2(2). The draft Article 4 was headed as grounds for optional non-execution. It contained seven sections by which “[t]he executing judicial authority may refuse to execute the European arrest warrant” if the conditions in any section were adopted into domestic law. The draft Article 4.7 was:-

“The executing judicial authority may refuse to execute the European arrest warrant […]

7. Where the European arrest warrant envisages offences which:

(3) are regarded by the law of the executing Member State as having been committed in whole or in part in its territory or in a place treated as the territory of that Member State;

(4) 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 the territory of the executing Member State.”

This draft indicates an agreement that the second option not to surrender would lie when the offence in issue had 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.

36. The final wording agreed upon for Article 4.7 of the Framework Decision was:-

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 a place treated as such;

37. Ireland did not opt for Article 4.7.a. But the roots of Article 4.7.b. may be seen in Article 7 of the European Convention on Extradition, 1957, and there is a clear line of thought through to Article 4.7.b. of the Framework Decision.

38. Whether one classifies it as an option as to extra-territoriality or reciprocity, Article 4.7.b. makes provision for an exception to the requirement of surrender which is a fundamental principle of the Framework Decision.

39. Article 4.7 has been described as an example of the principle of reciprocity in the Framework Decision. As stated in Blextoon and van Ballegooij, eds., Handbook on the European Arrest Warrant, (T.M.C. Asser Press, 2005) in chapter 6. The Principle of Reciprocity, by Harman van der Wilt at p. 74:-

“Only one provision in the Framework Decision alludes to the principle of reciprocity. According to Article 4, s. 7 sub. (b), the executing judicial authority is allowed to refuse the execution of a European Arrest Warrant, whenever such a warrant envisages offences which 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 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. This section mirrors Article 7, s. 2 of the European Convention on Extradition.”

40. Therefore it is necessary to consider the law in Ireland on extra-territoriality and the offence of murder. This is to be found in s. 9 of the Offences Against the Person Act, 1861, as amended, as follows:

“Where any Murder or Manslaughter shall be committed on Land out of the United Kingdom, whether within the Queen's Dominions or without, and whether the Person killed were a Subject of Her Majesty or not, every Offence committed by any Subject of Her Majesty, in respect of any such Case, whether the same shall amount to the Offence of Murder or of Manslaughter, may be dealt with, inquired of, tried, determined, and punished in any County or Place in England or Ireland in which such Person shall be apprehended or be in Custody, in the same Manner in all respects as if such Offence had been actually committed in that County or Place; provided that nothing herein contained shall prevent any Person from being tried in any Place out of England of Ireland for any Murder or Manslaughter committed out of England or Ireland, in the same Manner as such Person might have been tried before the passing of this Act.”

41. This section was adapted by S.I. No. 356/1973: Offences Against the Person Act, 1861 (Section 9) Adaptation Order, 1973, which provided:-

“The Government, in exercise of the powers conferred on them by section 12 of the Adaptation of Enactments Act, 1922 (No. 2 of 1922) (as adapted in consequence of the enactment of the Constitution), and section 5 of the Constitution (Consequential Provisions) Act, 1937 (No. 40 of 1937), hereby order as follows:

1. This Order may be cited as the Offences against the Person Act, 1861 (Section 9) Adaptation Order, 1973.

2. The Interpretation Act, 1937 (No. 38 of 1937), applies to this Order.

3. Section 9 of the Offences against the Person Act, 1861, shall be construed and have effect as if—

(a) the reference to land out of the United Kingdom, whether within the Queen's dominions or without, were a reference to land outside the area of application of the laws of the State,

(b) the reference to a subject of Her Majesty were a reference to a citizen of Ireland and the reference to any subject of Her Majesty were a reference to any citizen of Ireland, and

42. Thus, applying the above law, Ireland could request France to surrender to Ireland an Irish citizen for an alleged murder committed in France. However, Ireland could not make a successful request to France to surrender to Ireland a citizen of the United Kingdom for the offence of an alleged murder committed in France. The act of murder in another state is not an offence which may be prosecuted in this State except where it is committed by an Irish citizen. There is no jurisdiction in Ireland to prosecute for an offence of murder committed outside the area of the application of the laws of the State, unless an ingredient in that crime is that the alleged offender was an Irish citizen.

43. It appears to me that the learned High Court judge fell into error in adding the words “and other than this State” to the words of s. 44 of the Act of 2003 in his analysis. The words of s. 44 are clear, are not ambiguous, and do not include the words “and other than this State”.

44. By section 44 of the Act of 2003, Ireland adapted into Irish law Article 4.7.b. of the Framework Decision, which itself had roots in the Convention on Extradition, 1957, Article 7. The systems of extradition following on the Convention on Extradition, 1957 were different, separate treaties were entered into between States. Today in Europe, pursuant to the Framework Decision, there is a new system, a system of surrender of persons between judicial authorities, based on mutual trust and confidence. However, s. 44, and Article 4.7.b., have roots in the system of reciprocity that existed under the earlier regime and this informs the construction of s. 44.

45. I construe s. 44 as enabling Ireland to surrender a person in respect of an offence alleged to have been committed outside the territory of the issuing State in circumstances where the Irish State would exercise extra-territorial jurisdiction in reciprocal circumstances. Ireland would not have jurisdiction to surrender to France a citizen of the United Kingdom for a murder committed in France. Applying s. 44, and the principles upon which it was founded, the appellant has established grounds to succeed on the first legal issue. The reciprocity that is required in construing s. 44 is a factual reciprocity concerning the circumstances of the offences. Offences that take place outside of the territory of a State require specification of the circumstances when that State will exercise jurisdiction. The reciprocity in this case requires Ireland to examine its law as if the circumstances of the offence were reversed. Here the circumstances are that a non-citizen of either the issuing or executing State is sought by the issuing State in respect of a murder of one of its citizens which took place outside the issuing State. The Court then must determine under Irish law if Ireland could request the surrender of a non-citizen of either Ireland or the executing State in respect of a murder of one of its citizens which took place outside Ireland. Ireland does not have jurisdiction to seek the surrender of a British citizen from France in respect of a murder of a person of any citizenship and which took place outside of Ireland. Thus, I would allow the appeal on this first issue.

Section 42 of the Act of 2003, and its amendment by the Act of 2005
46. The second legal issue on this appeal relates to the construction and application of s. 42 of the Act of 2003, and its amendment by the Act of 2005.

47. Section 42 of the Act of 2003 provided originally:-

“A person shall not be surrendered under this Act if—

(a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings against the person for an offence,

(b) proceedings have been brought in the State against the person for an offence consisting of an act or omission that constitutes in whole or in part the offence specified in the European arrest warrant issued in respect of him or her, or

(c) the Director of Public Prosecutions or the Attorney General, as the case may be, has decided not to bring, or to enter a nolle prosequi under section 12 of the Criminal Justice (Administration) Act 1924 in proceedings against the person for an offence consisting of an act or omission that constitutes in whole or in part the offence specified in the European arrest warrant issued in respect of him or her, for reasons other than that a European arrest warrant has been issued in respect of that person.”

48. However, s. 42 of the Act of 2003 was amended by the Criminal Justice (Terrorist Offences) Act, 2005, which provided in section 83:-

“The Act of 2003 is amended by the substitution of the following section for section 42:

‘42.—A person shall not be surrendered under this Act if—

(a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings against the person for an offence, or

(b) proceedings have been brought in the State against the person for an offence consisting of an act or omission of which the offence specified in the European arrest warrant issued in respect of him or her consists in whole or in part.’.”

49. Thus paragraph (c), as appeared in the earlier statute, is not retained as part of the statute law from 2005.

50. Section 42(a) of the Act of 2003 provides that where the DPP or the Attorney General is considering, but has not yet decided, whether to bring proceedings against the person for an offence, the person shall not be surrendered. This section does not apply to the appellant. The DPP has considered and decided not to prosecute the appellant.

51. Section 42(b) of the Act of 2003 provides that where proceedings have been brought in the State against the person for an offence which constitutes in whole or in part the offence specified in a European Arrest Warrant, a person shall not be surrendered. This section also does not apply to the appellant. Proceedings were not brought in this State as the DPP decided that the appellant should not be prosecuted for the murder of Mme. Toscan du Plantier.

52. I will consider s. 42(c) of the Act of 2003 in the context of the facts of the case.

53. The DPP informed the appellant sometime after his arrest in 1998 that he did not intend to prosecute him for the murder of Mme. Toscan du Plantier. Later, s. 42(c) of the Act of 2003 would have precluded the surrender of the appellant to France. Thus, if France had sought the surrender of the appellant between 2003 and 2005 this subsection would have been a ground upon which to prohibit his surrender. However, s. 42(c) was omitted from the amended section in 2005. Thus, it is necessary to consider whether the appellant obtained and/or retained any rights under s. 42(c) of the Act of 2003.

54. Under s. 42(c) of the Act of 2003, the appellant could not have been surrendered to France for the alleged offence of the murder on the night of 22nd to 23rd December, 1996 of Mme. Toscan du Plantier. This raises the issue as to whether the amended s. 42 of the Act of 2005 has any effect on the position of the appellant.

55. The Act of 2005 introduced a number of changes in the Act of 2003, and they were set out in Part 8. Section 68 provided:

“The amendments effected by this Part (other than section 83) shall apply to European Arrest Warrants, and facsimile and true copies thereof, that are endorsed under section 13, or produced under section 14(7), of the Act of 2003

after

the passing of this Act.”

[Emphasis added]

Thus all amendments, except the amendment to s. 42, are expressly stated to apply to European Arrest Warrants that are endorsed under s. 13 or produced under s. 14(7) of the Act of 2003, after the passing of the Act.

56. The amendment to s. 42 of the Act of 2003 by s. 83 of the Act of 2005, is not included in the specifically stated provision quoted. So it is necessary to construe the statute.

57. To construe s. 42(c) of the Act of 2003, and its removal, the appellant submitted that it would be helpful to look at the Interpretation Act, 2005. However, this Interpretation Act came into force on the 1st January, 2006, per s. 1, whereas the Act of 2005 (the Criminal Justice (Terrorist Offences) Act, 2005), was signed into law on the 8th March, 2005, i.e. before the Interpretation Act, 2005 became law. Thus, it is more appropriate to consider s. 21 of the Interpretation Act, 1937, which provides:-

“(1) Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal shall not—

(a) revive anything not in force or not existing immediately before such repeal takes effect, or

(b) affect the previous operation of the statute or portion of a statute so repealed or anything duly done or suffered thereunder, or

(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the statute or portion of a statute so repealed, or

(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence against or contravention of the statute or portion of a statute so repealed which was committed before such repeal, or

(e) prejudice or affect any legal proceedings, civil or criminal, pending at the time of such repeal in respect of any such right, privilege, obligation, liability, offence, or contravention as aforesaid.

(2) Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then,

unless the contrary intention appears

, any legal proceedings, civil or criminal, in respect of any right, privilege, obligation, or liability acquired, accrued, or incurred under or any offence against or contravention of the statute or portion of a statute so repealed may be instituted, continued or enforced, and any penalty, forfeiture, or punishment in respect of any such offence or contravention may be imposed and carried out as if such statute or portion of a statute had not been repealed.”

[Emphasis added]

58. The Interpretation Act, 1937, expressly provides that, unless the contrary intention appears, any repeal of a statute shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the statute. The Interpretation Act, 1937, refers to the right of a person which has been acquired. Before considering whether a contrary intention appears, it must be determined whether the appellant acquired a right.

59. If the Interpretation Act, 2005 is considered, the appellant having submitted that it would be helpful, the same issue arises - as to whether the appellant acquired a right, which protects him from being surrendered, under s. 42(c) of the Act of 2003.

60. There is no general right not to be prosecuted. In relation to the issue of a prosecution in Ireland, the DPP has decided, based upon the enquiries of the Garda Síochána, that the appellant will not be prosecuted in Ireland for the offence of the murder of Mme. Toscan du Plantier in County Cork. Further, after a number of reviews, this decision was affirmed on each occasion. The appellant has been informed of the decision.

61. A decision of a prosecutor not to prosecute may be reviewed if, for example, new evidence is discovered. Thus, the decision may change – even in a cold case. An accused does not have a general right or privilege not to be prosecuted.

62. The issue on this appeal is whether or not the appellant should be surrendered pursuant to the warrant, under the European Arrest Warrant procedure. Thus, the issue is whether he has acquired a right not to be surrendered. Of primary importance is that the procedures under the Act of 2003, as amended, mandate surrender, unless specific conditions are met.

63. Under the extradition system a person does not have a general right not to be extradited. In particular, a change in the law on extradition does not give rise to a general right not to be extradited. The circumstances of each case require to be considered.

64. In Sloan v. Culligan [1992] 1 I.R. 223 s. 3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, referred to as ‘the Act of 1987’, excluded a range of offences from the definition of political offence. Section 1(4) of the Act of 1987 provided: “[t]his Act applies, except where otherwise provided, in relation to an offence whether committed or alleged to have been committed before or after the passing of this Act,” It was submitted that the Act of 1987 could not remove from offences deemed political in 1980 the right or entitlement not to be extradited because this would breach the Article 15.5 and Article 40.3 of the Constitution of Ireland, 1937. In giving the decision of the Court Finlay C.J. stated at 272 to 273:

“The Court is satisfied that the plaintiff did not have at any material time what has been described in the submissions before the Court as a vested right, either to freedom or to protection from being delivered up to serve these sentences on the basis that the offences in respect of which they were imposed constituted political offences, either of which rights has been interfered with or left unprotected by virtue of the effect and provisions of the Act of 1987 and, in particular, of s. 1, sub-s, 4 thereof. The right of the plaintiff, as of every other citizen, concerning the question of his delivery into another State for the purpose of serving a sentence lawfully imposed on him in that State, was, the Court is satisfied, a right at any given time to proper, due and fair procedures concerning an investigation of the validity of the warrant in respect of which he is delivered, and to a fair, proper and due inquiry into the protections applicable in law, within the State at the time of the application for his delivery, which may afford him a protection arising from the concept of a political offence or from any other of the concepts appropriate to prevent such a delivery. The provisions of the Act of 1987 constitute a development of the law applicable to the delivery of persons out of the jurisdiction of this State and into the jurisdiction of the Northern Ireland courts, amongst others, which the legislature in accordance with the decision of the State to ratify the European Convention on the Suppression of Terrorism, done at Strasbourg on the 27th January, 1977, has validly decided to enact. Upon the passing of that statute the right of every citizen and every person affected by it simply is to its due application, and its application with regard to the provisions of s. 3 thereof to a case where an offence was committed before the passing of the Act of 1987, but where a warrant requesting the delivery of the person concerned was not issued until after the passing of the Act, does not constitute, the Court is satisfied, any failure on the part of the State to defend, vindicate or protect any personal right of the plaintiff.

The Court is, therefore, satisfied that s. 1, sub-s. 4 of the Act of 1987 has not been established as being invalid, having regard to any provision of the Constitution.”

65. Applying that rationale to this case, I am satisfied that the appellant has not established any vested right not to be surrendered. He has a right to due and fair procedures. On this issue, the second of the legal issues, on the application of s. 42 of the Act of 2003, the appellant has not established any vested right not to be surrendered that would be protected under s. 21 of the Interpretation Act, 1937, or s. 27 of the Interpretation Act, 2005. A consequence of this finding is that the question of whether a contrary intention is apparent does not arise.

66. The current law is to be found in s. 42 of the Act of 2003, as amended. I am not satisfied that the appellant has established that he has a right to a benefit of a section of an Act which has been repealed, and thereby that he may not be surrendered. Consequently, I would not allow the appeal on this ground.

Section 21A of the Act of 2003, as amended by the Act of 2005

67. The third legal issue relates to the warrant. There is a fundamental obligation on Member States to surrender a person under the Framework Decision. The Framework Decision, in Article 1, defines the warrant and the obligation to execute it. It states that:-

“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 …”

Thus, Member States shall execute any warrant on the basis of the principle of mutual recognition and in accordance with the Framework Decision.

68. Section 10 of the Act of 2003, as amended, provides, inter alia:-

“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 an offence to which the European arrest warrant relates,

(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.”

Therefore, a state shall surrender a person when a judicial authority is an issuing state issues a warrant in respect of a person against whom the issuing state intends to bring proceedings, subject to the Act of 2003, as amended, and the Framework Decision. The appellant in this case has raised the issue of the law pursuant to s. 21A of the Act of 2003, as amended.

69. The third legal issue submitted on behalf of the appellant is based on s. 21A of the Act of 2003, as inserted by s. 79 of the Act of 2005.

70. Section 21A of the Act of 2003, as inserted by the Act of 2005, provides:-

“(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]

71. Thus s. 21A(1) provides that where a European Arrest Warrant is issued in the issuing State, in this case France, in respect of a person who has not been convicted of an offence specified, then the High Court “shall”, i.e. it is mandatory, 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, the offence in the issuing State.” The key words require that a decision has been made to charge the person with and to try him for the offence in France.

72. A presumption is raised in s. 21A(2). It provides that where a European Arrest Warrant is issued for a person who has not been convicted it shall be presumed that a decision has been made “to charge the person with, and try him or her for”, the offence in the issuing State, unless the contrary is proved. In this case the issue is determined on the documents before the Court, which address the matter of the steps taken in the issuing State.

73. Thus it is necessary to consider the warrant and other documents to determine the application of s. 21A.

The Warrant

74. The first, and most important, document, is the warrant itself. The translation of the first paragraph states:-

“This warrant has been issued by a competent judicial authority. I request that the person as hereafter identified be arrested and transferred to the judicial authorities for the purpose of conducting a criminal prosecution, or for the execution of a custodial sentence or detention order.”

Thus this is not helpful as it states the alternative purposes for which a warrant could be sought, but does not identify the purpose in this warrant.

75. A later paragraph states that the decision on which this warrant is based is a warrant for arrest issued on the 16th February, 2010, by Mr. Patrick Gachon, Examining Magistrate at the High Instance Court of Paris, for the purpose of criminal prosecution. Thus the purpose of the warrant is identified.

76. The warrant states that it relates to one violation of a “ticked-box offence” under Article 2.2 of the Framework Decision. It sets out a series of statements, including that Mme. Toscan du Plantier died in a house she owned in Co. Cork.

77. Included in the series of statements, on the warrant, is the following:-

“In the course of the investigation carried out by the Garda, serious and convincing clues were accumulated against a journalist named Ian Bailey, of such a nature as to justify that he be charged.”

Thus the warrant relies on the Garda investigation in Ireland and states that it justifies that the appellant be charged. In fact, the DPP has decided, and reviewed the decision on a number of occasions, that the results from the Garda investigation do not warrant that the appellant be charged.

78. There are a series of further statements relating to evidence from the Garda investigation. It includes:

“Marie Farrell stated she had seen Ian Bailey on 23rd December 1996 around 03.00 a.m., nearby Kealfada Bridge, namely at a short distance from the residence of the victim. By repeated acts of intimidation, directly or indirectly Ian Bailey tried to cause Marie Farrell to change her statement.”

There is no reference to other events subsequent to Ms. Farrell’s first statement, or to the subsequent investigation relating to the statement.

79. The warrant is stated to be for murder, pursuant to sections 221 – 1 and 221 – 3 of the Penal Code. The offence is ticked in the list of offences as being “wilful homicide and serious assault and battery”.

80. The warrant also states that it relates to the seizure and transfer of the items susceptible of being used for prosecution purposes.

81. The warrant is signed by Mrs. Nicole Blondet, described as “Vice Prosecutor, Magistrate of the Judicial Order”.

Evidence of foreign law
82. In the High Court there was evidence of foreign law advanced by the appellant. A statement of law by Dominique Tricaud, a specialist in criminal law, made on the 13th August, 2010, includes the following paragraphs:-

“In this case, it is not clear how precisely the proceedings began. Normally, there is a preliminary examination (

L’inquete preliminaire

) which may or may not result in the appointment of an investigating judge. In criminal matters in France, (one should understand that this term corresponds to the most serious offences, such as murder, rape, armed robbery, etc.), the preliminary enquiry can be entrusted to the police under the authority of the Public Prosecutor before the appointment of an investigating judge.

As a result of the preliminary stage of the proceedings, I do not have automatic access to the file of the investigating Judge Gachon. I will have a right to see the Court file when the Respondent first appears before the investigating judge in France. I could apply at this stage of the proceedings to His Honour Judge Gachon to be recognised as the lawyer of the Respondent, but this application does not have to be granted.

My impression is based on a reading of the European Arrest Warrant, and as a result of conversations with Mr. Frank Buttimer, the solicitor of the Respondent in Ireland, that the appointment of the investigating judge, Judge Gachon, was on foot of the information sent by the Irish Police only. However, I cannot put it further than being my impression only as I do not have access to the files of the investigating judge at this moment.

The issuing of the said arrest warrant on the 16th February, 2010, is roughly equivalent to charging the Respondent with the offence. It means that the investigating judge has indicated that there is sufficient evidence against the respondent to warrant further criminal prosecution (though not necessarily enough evidence to place him on trial). The prosecution is now in the phase of “l’instruction”, or the examination phase. When the person (in this case the Respondent) has been arrested and appears before the investigating judge, the investigating judge can confirm the charge or simply hear the person as a witness.

It is worth noting that the case of the Respondent is unusual in two respects Firstly, his whereabouts are known, and secondly, he lives outside France. Normally, if the person under investigation was present in France, and his whereabouts were known, the investigating judge would simply direct his arrest and have him/her brought before the investigating judge without formally issuing a warrant for arrest.

After the end of the current phase, “l’instruction” or examination, the “juge d’instruction” or investigating judge, Patrick Gachon, will make a decision whether or not there is sufficient evidence to send the Respondent for trial which will be in the Court d’Assize, a court for the trial of serious offences.

It cannot be inferred from the existing French proceedings that there is sufficient evidence to send the Respondent for trial, or that there has been a decision to try the Respondent. Only the investigating judge can make the decision whether or not to send the Respondent for trial. If there is not sufficient evidence the Respondent will not be sent for trial, the process will end at the examination phase. If the investigating judge refuses to send the Respondent for trial, this decision may be appealed to the Court of Appeal.”

83. In this Court there were submissions that the warrant did not meet the requirements of s. 21A. The appellant was permitted to put in fresh evidence, as was the Minister for Justice and Equality, the applicant/respondent, referred to as “the Minister”.

84. A further statement was filed from Dominique Tricaud on behalf of the appellant. The statement is dated the 12th January, 2012. The statement includes the following paragraphs:-

“ I refer to the warrant for arrest issued in respect of the Appellant on the 16th February, 2010, by Mr. Patrick Gachon, Investigating judge at the High Instance Court of Paris for the purpose of criminal prosecution (hereafter referred to as “His Honour Judge Gachon”). I also refer to the European Arrest Warrant issued in respect of the Appellant by Mrs Nicole Blondet, Vice Prosecutor, Magistrate of the Judicial Order, issued on the 19th February, 2010.

His Honour Judge Gachon is the investigating judge or juge d’instruction in the case of the Appellant.

I also refer to the Judgment of the High Court in the above entitled matter dated the 18th March, 2011 of his Honour Mr. Justice Michael Peart. It contains an interpretation of Article 80 of the Procedure Penale of France which, in my view, is incorrect.

It has been stated in the above-mentioned judgment at page 28 that ‘it is a necessary procedural step in the [French] prosecution procedure he may not be put on trial until this right has been afforded to him … it is apparent that until his right has been afforded to the Appellant, no final decision to send him forward for trial on the charge can be made.’ Further it has been stated at page 31 that ‘but it is also clear that he is correct in saying that only at the end of the instruction or examination phase, which cannot occur to the Appellant is brought before the Judge can a decision be made to put the Appellant on trial’. 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 in the above entitled proceedings His Honour Judge Patrick Gachon can proceed with his examination in his absence and, further, the Appellant can be tried and sentenced in absentia.

Obligation to close the phase of l’instruction and send forward for trial once there is sufficient evidence.

His Honour Judge Patrick Gachon, pursuant to Article 175 of Procédure Pénal, once he considers that there is sufficient evidence to send the Appellant for trial to the Court d’Assize (or other competent trial court) he loses jurisdiction. In other words, if he concludes that there is sufficient evidence, he must close the file and send the Appellant for trial.

I therefore know as a matter of certainty that His Honour Judge Patrick Gachon has formed the view that there is not enough evidence, at the moment, to send the Appellant for trial and therefore close the examination phase or phase of l’instruction. I am aware from checking with the relevant Court office in Paris that the case was not closed as of the 3rd November, 2011. It therefore is the case that the decision to prosecute is dependent on the investigation producing sufficient evidence to put the Appellant on trial.”

85. According to the first statement of Dominique Tricaud, on this expert evidence, the issuing of the arrest warrant in France is roughly equivalent to a decision to charge the appellant with the offence. However, there is also the requirement under s. 21A of the Act of 2003, as amended, that there have been a decision to try him for the offence.

86. New evidence was admitted in this Court, on the application of the Minister, on behalf of the issuing State. It is headed “Observations by the State prosecutor at the Paris Tribunal de Grande Instance on the affidavit from Mr. Daniel Tricaud dated the 12th January, 2012.” It commences:-

“First of all, it should be specified that Mr. Tricaud is not acting as lawyer for Mr. Ian Bailey in the judicial inquiry under way in France, because the latter has not been indicted in France and has therefore not yet been able to appoint officially, before the investigating judge, a lawyer to assist him.

Mr. Tricaud therefore has no access to the case being examined in Paris under the authority of Mr. Patrick Gachon, the Vice-President in charge of the investigation.

Consequently, anything Mr. Tricaud may report about his knowledge of the case is based only on rumours or impressions and can in no way result from an analysis of the case.

In order to understand properly Mr. Bailey’s current procedural situation in France, it seems to me necessary to specify, first of all, certain points of the French investigation and decision procedure, and then, more specifically, the default (in absentia) decision mentioned by Mr. Tricaud if Mr. Bailey were not handed over. I shall conclude with a few observations on the different points raised in the affidavit.

This manner of proceeding will provide you with a better grasp of the French judicial system and consequently of the future that would await Mr. Bailey if he were handed over by the Irish authorities.

Points of French judicial procedure that will be of interest to Ian Bailey

Mr. Ian Bailey was issued with a European arrest warrant by my good offices on the basis of an arrest warrant issued by the investigating judge.

Mr. Bailey has therefore not yet been tried or even indicted.

The Code of Criminal Procedure (Article 122) states that an arrest warrant can be issued if serious or corroborating circumstantial evidences exist regarding a person which makes it likely that he or she could have taken part, as perpetrator or accomplice, in committing a crime.

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

Put very simply, when a crime is committed, the state prosecutor may – or in criminal cases must – refer the matter to the investigating judge. It is then the investigating judge who takes charge of “investigating” the case – i.e. leading the inquiry. This phase of investigation precedes that of the trial, which focuses on the person’s level of culpability.

The role of the investigating judge must therefore be distinguished from that of any jurisdiction that may try Mr. Ian Bailey. The investigating judge is only responsible for a procedure preparatory to the trial procedure.

A second level of investigating jurisdiction exists: the investigating chamber of the court of appeal, which may subsequently issue a ruling on appeal about the decisions taken by the investigating judge.”

87. The document from the State Prosecutor of the Paris Tribunal de Grande Instance continued:-

“A)The investigation phase

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

Principles:

The investigating judge is a magistrate of the Tribunal de Grande Instance.

Like all the magistrates of that court, he is independent. The judicial authority’s independence is enshrined in the constitution (Article 64); the independence of the court’s magistrates is reinforced by their permanence, also enshrined in the constitution.

These rules are recalled in Article 4 of the Statute of the Magistracy.

The aim of the investigation is to reveal the truth; it must consequently examine evidence of both innocence and guilt. This principle is set out in Article 81 of the Code of Criminal Procedure.

By virtue of this principle, all the points under investigation are gathered in a single case file, the investigation case file, which may be consulted at any time by all the parties.

Before becoming a party to the investigation, a person cannot have access to the case file. Because Ian Bailey is not yet a party to the proceedings, neither he nor his lawyers have yet been able to consult the investigation case file.

Any person indicted becomes party to the investigation, after which his/her counsel is able to consult the case at any time. Indeed, under French law the defence has access to the case file. The first publication of each document is free of charge.

The Code of Criminal Procedure (preliminary article) lays down 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 the person has not been sentenced by a trial court, since only such a court can convict a person subject to trial.

This principle therefore obviously applies to the investigation of a criminal matter. Indeed, this is only an interlocutory procedure during which the person subject to trial can be indicted but he/she cannot, under any circumstances, be sentenced at this stage of the procedure.”

[Emphasis as in the original document]

Thus it is clear that if the appellant were surrendered to France on the warrant it would be at the investigation stage of the case.

88. This document sets out clearly the investigation and decision procedure in France. It states plainly that if the appellant were handed over to France by the Irish authorities he would be at the investigation procedure stage of the case.

89. It is a question of Irish law as to whether this meets the requirements of s. 21A of the Act of 2003, as amended.

90. The Irish law is stated clearly, and with no ambiguity, in s. 21A of the Act of 2003, as amended. It provides that where a warrant is issued in an issuing State in respect of a person who has not been convicted of an offence specified in the warrant, the 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 for, the offence in the issuing State. It is expressed in a mandatory form.

91. There are two areas where tensions of interpretation may arise. Differences may arise between the legal systems of the Member States, which apply the Framework Decision. Also, the implementing legislation in Member States may differ, although such legislation should be interpreted to implement the Framework Decision, unless it is contra legem.

92. In Criminal Proceedings against Pupino (Case C-105/03) [2005] E.C.R. 1-05285, the Court of Justice adopted the principle of conforming interpretation to framework decisions adopted pursuant to the Treaty on the European Union. It was stated at para. 43 that:-

“[t]he Court Concludes that the principle of conforming interpretation is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called upon to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 2(b) EU.”

However, the principle was qualified at para. 44 and 47:-

“It should be noted, however, that the obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, … The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity [with Community law] cannot serve as the basis for an interpretation of national law

contra legem

. That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.”

93. In Minister for Justice, Equality and Law Reform v. Dundon [2005] 1 IR 261, Minister for Justice, Equality and Law Reform v. Altaravicius [2006] 3 IR 148 and Minister for Justice, Equality and Law Reform v. Tobin [2008] 4 IR 42, this Court has restated and applied these principles.

94. In a recent decision of this Court issues arising under s. 21A were considered and analysed.

95. In Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 IR 384, the accused was a citizen of Sweden in this jurisdiction, against whom the Swedish authorities issued a European Arrest Warrant in relation to four offences, for which they intended to prosecute him. The High Court ordered the respondent’s surrender to Sweden, and his appeal to this Court was dismissed. The primary issue in that case was as to legal assistance, which is not in issue in this case. However, consideration was given also to s. 21A of the Act of 2003, as amended.

96. O’Donnell J., in giving a judgment with which the other members of the Court agreed, analysed s. 21A. He stated at pp. 399 – 400:-

“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 of 2003 and the ‘purpose’ referred to in art. 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 of 2003 does not require any particular formality as to the decision; in fact, s.21A 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.

The requirement of the relevant decision, intention or purpose can best be understood by identifying what is intended to be insufficient for the issuance and execution of a European arrest warrant. A warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient. Here it is clear that the requested person is required for the purposes of conducting a criminal prosecution (in the words of the Framework Decision) and that the Kingdom of Sweden intends to bring proceedings against him, (in the words of s.10 of the Act of 2003) Consequently it follows that the existence of any such intention is virtually coterminous with a decision to bring proceedings sufficient for the purposes of section 21A. As Murray C.J., pointed out in Minister for Justice v. McArdle [2005] IESC 76, [2005] 4 IR 260, that result is not altered by the fact that there may be a continuing investigation, or indeed that such investigation will be assisted by the return of the requested person.

It would be entirely within the Framework Decision and the Act of 2003 if, after further investigation, the prosecution authorities decided not to prosecute because, for example, they had become convinced of the requested person’s innocence. There would still have been an ‘intention’ to prosecute, and a decision to do so at the time the warrant was issued and executed. Accordingly the warrant would have been issued for the purposes of conducting a criminal prosecution. 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. In such a situation there is in truth no present ‘decision’ to prosecute, and no present ‘intention’ to bring proceedings. Such a decision and intention would only crystallise if the investigation reached a certain point in the future. In such a case any warrant could not be said to be for the purposes of conducting a criminal prosecution: instead it could only properly be described as a warrant for the purposes of conducting a criminal investigation. In such circumstances, a court would be satisfied under s.21A of the Act of 2003, as amended that no decision had been made to charge or try the requested person.”

[Emphasis added]

97. Consequently, applying that judgment, a court is to refuse to surrender a requested person when it is satisfied that no decision has been made to charge and try him. A warrant issued for the purposes of their investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient. In such circumstances a court could be satisfied under s. 21A of the Act of 2003, as amended, that no decision had been made to charge and try the requested person.

98. Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 IR 384 was decided on its facts, and the facts in this case are different. That case turned on the evidence before the Court, and this case turns on the evidence before this Court. I would distinguish the determination in that case, because of the facts of this case. However, the analysis is helpful.

99. Under Irish law, s. 21A of the Act of 2003, as amended, ensures persons are not surrendered for the purposes of investigation. Section 21A requires that the Court shall refuse to surrender the person sought if it is satisfied that a decision has not been made to charge the person with and try him for the offence of murder of Mme. Toscan du Plantier.

100. On the evidence before the Court, it is clear that a decision has been made equivalent to a decision to charge the appellant. However, no further decision has been made. The appellant is sought for a criminal investigation, for the investigation procedure in France, and no decision has yet been made in France to try him for the murder. Consequently, he may not be surrendered in accordance with section 21A of the Act of 2003, as amended. The national law is clear on the requirements it lays down.

101. This third issue is decided on Irish law, on the terms of s. 21A of the Act of 2003, as amended, which require that a decision have been made in France “to charge the person with, and try him or her for” the offence. It is clear from the facts of the case on the documents before the Court, that while a decision has been made in France equivalent to charging the appellant, that decision does not incorporate a decision to try him for the murder of Mme. Toscan du Plantier. Thus a court could not be satisfied that the terms of section 21A are met.

102. Therefore, I would allow the appellant’s appeal on this ground of appeal.

103. For the reasons given, I would allow the appeal of the appellant on the legal issue raised on s. 44 of the Act of 2003. The appellant raised also the terms of s. 42 of the Act of 2003, as amended. I do not find that the appellant has established any right or privilege arising under the repealed s. 42(c) of the Act of 2003. Thus, I would not allow an appeal on this second legal issue. The third legal issue raised the terms of s. 21A of the Act of 2003, as amended. For the reasons given, it is clear that the requirements of Irish law have not been met, for while there has been a decision equivalent to charging the appellant in France, there has been no decision to try him for the murder of Mme. Toscan du Plantier. Consequently, the requirements of s. 21A of the Act of 2003 have not been met. I would allow the appeal on this ground also.

104. Consequently, I would allow the appeal in the first and third of the legal issues.

105. The fourth issue raised by the appellant and the motion were adjourned pending the determination of these three legal issues. As I would allow the appeal on two of the issues raised, in accordance with the jurisprudence of this Court, there is no necessity to proceed to consider a further issue. In fact if the fourth issue were to proceed it could not be completed in this Court, but would have to be remitted to the High Court for a full hearing. In all the circumstances, it is not necessary to proceed with the fourth issue as I would allow the appeal on the first and third legal issues.

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 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, he clearly was charged.

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 "this 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.

JUDGMENT of Mr. Justice Hardiman delivered on the
1^st day of March, 2012.
This is the appeal of Mr. Bailey against the judgment of the High Court delivered the 18^th March, 2011, and its order perfected on the 13^th 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”.

The appellant seeks that the order mentioned above be set aside.
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.
From the European arrest warrant in this case and the other evidence offered, it appears that on the night of the 22^nd - 23^rd 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.

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.

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”.

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.

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.”

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.

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.

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.
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).

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.”

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.
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.

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.

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 13^th 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.

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.
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.

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.

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.

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, 16^th January, 2012. On the preceding Friday, 13^th 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.

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.

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.
Mr. Bailey’s appeal proper against the High Court order began on Monday 16^th 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.

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.

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.

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.

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.

Having heard both sides’ submissions and seen the document presented by Mr. Barron on Wednesday 18^th 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.

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.”

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.”.
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”.

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.

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.

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.
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.

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.

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.

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.

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, 17^th 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”.
___________________________________________________________
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.

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.

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”

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

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.”

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.

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.”

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.

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.”

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.

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.

”

It is further stated:

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

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.”

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.

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)

”

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.

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.

”

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)

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.

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…”.

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.

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”.

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

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.

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

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”.

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.

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.

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”.

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.

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.

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.

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”.

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.

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.

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.

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.
Section 21A was considered by this Court in Minister for Justice v. McArdle [2005] 4 IR 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.

”

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] IESC 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”

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)

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.

It is recorded above that, after the production of the French expert opinion and its translation on Wednesday 19^th January, 2012, Mr. Barron stated that its effect was that he could not rely on the Ollson 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.

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.
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.

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

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)

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;

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

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.

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”.

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.

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.

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.”

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.”

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.
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.

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.

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.
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

.”

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.

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.
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.

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).

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.

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”.

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."

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.

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]

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)

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

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 8^th 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.

The order of the Cour de Cassation, insofar as relevant, is as follows:
“ur de Cassation, Chambre criminelle, du 8 juillet 2004, 04-83.663, Inédit

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".

This may be translated as follows :illet 2004
Cour de Cassation, Chambre criminelle, du 8 juillet 2004, 04-83.663, Inédit

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”.

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.
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.

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.

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.

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.

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.

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.

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.
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.

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.

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.
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.

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)

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”.

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.

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”.

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.

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

”.

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.

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”.
_________________________________________________________
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).

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

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

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

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.

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

JUDGMENT of Mr. Justice Fennelly delivered the 1st day of March 2012.

1. On the night of 22nd – 23rd December 1996 Madame Sophie Toscan Du Plantier, a French citizen, was brutally murdered at or near her home in Schull, County Cork.

2. Nobody has ever been charged with her murder. However, France wishes to pursue a prosecution against the appellant, a citizen of the United Kingdom, who is resident in Ireland. A French judicial authority has issued a European arrest warrant seeking the surrender of the appellant to France for that purpose. Under French law, such a prosecution is, in principle, possible. France exercises extra-territorial jurisdiction in respect of crimes, including murder, committed against French citizens, regardless of the nationality of the perpetrator. Irish law on extra-territorial criminal jurisdiction is the converse. In the case of murder, it will exercise extra-territorial jurisdiction over an Irish citizen, regardless of the nationality of the victim. In the first case, the citizenship of the victim and in the second case that of the alleged perpetrator determines jurisdiction.

3. The present case presents the further complicating feature that the crime, while committed outside France, was committed, not in a territory outside Ireland, but in Ireland itself. Thus, the State would have been in a position to prosecute the appellant for the crime here. However, although the appellant was at one time regarded as a suspect, the responsible prosecuting authority, the Director of Public Prosecutions, (“the DPP”) has, on at least two occasions, firmly decided that there is no sufficient evidence to warrant charging him. In the state of the law as it existed under the Act of 2003 in its original form, section 42 of the Act would have acted as a bar to his surrender. That provision was removed by amending legislation in 2005. Furthermore, Ireland has not implemented the option, available to the State in the Framework Decision, to refuse to surrender for offences committed or deemed to have been committed in Ireland.

4. Both the Framework Decision on the European Arrest Warrant and the European Arrest Warrant Act, 2003 contain provisions relevant to the surrender of persons sought in respect of extra-territorial offences. The latter contains an imperfectly expressed embodiment of the former. The European Convention on Extradition of 1957 previously catered for the matter and was reflected in Irish law by the Extradition Act, 1965. It is unclear whether a principle of reciprocity underlies the extradition of suspects accused of committing extra-territorial offences. There is certainly no reciprocity between the French and Irish positions regarding the prosecution of extra-territorial offences.

5. The Framework Decision is, of course, a measure of European Union law, whose interpretation can be determined finally only by the Court of Justice of the European Union. The Act of 2003 must be interpreted in conformity with the Framework Decision. However, this Court has not been given the authority to refer questions of interpretation to that Court. It will not have that power until 2014. Nor has the Court of Justice to date had occasion to pronounce on the legal issue which is before this Court. Thus, this Court must interpret the Framework Decision and the Irish implementing Act, without the assistance of the Court to which final interpretative authority has been assigned.

6. These remarks are made in a context where the appellant objects to his surrender to France in reliance on section 44 of the Act of 2003. His objection failed in the High Court. He appeals to this Court with the benefit of a certificate from the High Court that the point is a matter of exceptional public importance.

7. For present purposes, as the Chief Justice explains in her judgment, there are four principal legal issues for consideration. They are:

a. Whether the surrender of the appellant is prohibited by s. 44 of the Act of 2003;

b. Whether the appellant is entitled to object to his surrender pursuant to s. 42 of the Act of 2003 by reason of the legal effects of the decision of the DPP not to prosecute him;

c. Whether the Court is obliged to refuse to surrender the appellant on the ground that no decision has been made to charge and to try him in France;

d. Whether there has been abuse of process by the Irish State authorities, for the purposes of s. 37 of the Act of 2003.

In this judgment, I will deal with the issues mentioned at (a) and (c) above. I agree with the Chief Justice and with O’Donnell J that the appellant is not entitled to succeed on this appeal pursuant to s. 42 of the Act (ground (b)). I also agree with the Chief Justice that it is unnecessary to deal with the issues raised under s. 37 of the Act of 2003.

The proceedings to date

8. The European Arrest Warrant was issued in France on 19th February 2010 and transmitted to the Central Authority here for execution. On the 23rd April 2010, it was endorsed for execution by the High Court. The respondent was arrested and brought before the High Court.

9. The appellant included, in his Statement of Points of Objection before the High Court a claim that his surrender ought not to be granted because:

“It [his surrender] is contrary to section 44 of the Act of 2003 (as construed in conformity with Article 4(7)(b) of the Framework Decision)…..as the alleged crime was 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 offence when committed outside its territory, as the [appellant] is not an Irish citizen.”

10. Section 44 of the Act of 2003 provides as follows:

11. Peart J heard the application in the High Court and on the 18th March, 2011, delivered a judgment in which he ordered the surrender of the appellant to the French authorities.

12. Peart J noted particularly that a file had been sent to the DPP and that a decision had been made not to prosecute the appellant on any charge relating to the death of Mme. du Plantier. A letter dated 5th July 2010 to the appellant’s solicitor, confirmed that the file had been reviewed on a number of occasions, most recently in 2007, and that “on all occasions the original decision not to prosecute [the appellant] was confirmed”.

13. Counsel for the Minister argued in the High Court, as he has in this Court, that section 44 does not apply to the present application for surrender, because the offence was committed in the State. In other words the section applies only when the offence in the warrant was committed in a place other than the State.

14. Peart J rejected that submission. The section means, he held, that surrender is prohibited, where two conditions are met: firstly, the offence alleged in the warrant, was committed outside the issuing state, France in this case; secondly, under the law of the executing State, here Ireland, the same offence, when committed outside Ireland, does not constitute an offence under Irish law. The learned judge noted that in his experience--and he has extensive experience of European arrest warrant cases--this case was unique, in as much as the offence was committed not just outside the issuing state but in the executing state.

15. Having thus rejected the primary submission of the Minister, the learned judge, nonetheless, accepted a modified version of it.

16. Firstly, he noted the submission made on behalf of the appellant to the effect that section 44 is based on the principle of reciprocity which requires that one state should not be required to extradite a person for an offence if it could not request extradition for the same offence were the roles reversed, and that the principle is directed at ensuring an almost perfect balance of mutual obligations between states. He recalled his own earlier decision in Minister for Justice, Equality and Law Reform v. Aamond [2006] IEHC 382 (High Court, 24th November 2006) where the offences in a Danish European arrest warrant were alleged to have been committed outside the territory of Denmark (but not in Ireland) – in a third state. An earlier request for Mr Aamond’s extradition under the provisions of the Extradition Act, 1965 had been considered by this Court in Aamond v Smithwick [1995] 1 ILRM 61, which I will discuss later.

17. Counsel for the Minister submitted that the interpretation of section 44 contended for by the appellants failed to give effect to the objective of Article 4.7 of the Framework Decision.

18. The Minister argued that there is nothing in Irish law to prevent surrender where the offence alleged in the warrant was committed in Ireland. Ireland, as a Member State, could have but did not exercise the option conferred by Article 4.7(a) of the Framework Decision. That would have enabled the State, in implementing the Framework Decision, to include in Irish law a ground of refusal of surrender in cases where the offence was regarded by the law of Ireland, as the executing Member State, as having been committed in part or in whole in the territory of the State. The Minister referred to section 42 of the Act of 2003, as amended in 2005, which provides for a prohibition of surrender for offences under Irish law in two instances only. They are, firstly, where the DPP is considering, but has not yet decided, whether to bring proceedings against the person whose surrender is sought for the offence, (section 42(a)) and, secondly, where proceedings have in fact been brought in the State (section 42(b)). Neither of these provisions applies in the present case.

19. Counsel for the Minister submitted that, it was clearly not the intention of the Oireachtas that a person would not be surrendered simply because the offence for which he is sought had been committed in this State: otherwise the Act of 2003 would have so provided. Section 44 had not given effect to the objective of Article 4.7(a) and regard should be had to the over-riding objective of surrender pursuant to Article 2.

20. The learned judge accepted these submissions as being broadly correct and that there was nothing within the Framework Decision to suggest, much less require, that the surrender of the respondent to France be prohibited. Section 42 would have been the obvious place to provide for an optional ground for refusal where the offence is regarded by Irish law as having been committed in part or in whole in the territory of the State.

21. Peart J expressed his conclusion on this issue as follows:

“But in reaching a conclusion on this issue the Court must look at the entire Act and the Framework Decision and interpret section 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. If one has regard to the manner in which section 42 has been enacted, and has regard also to the absence of any provision of the Framework Decision which requires that surrender be refused in the circumstances of this particular offence, it is not contra legem to hold that section 44 of the Act of 2003 prohibits surrender in respect of offences which are committed in a country other than the issuing state and other than this State (i.e. in a third state), and where under the law of this State such an offence does not, by reason of having been committed in a third state, constitute an offence. That does not do violence to section 44 when one considers section 42 and the Framework Decision in tandem with it.” (emphasis added)

22. It is important to understand this reasoning, as it is essentially supported by the Minister on the appeal. In the first part of that paragraph, the learned judge was essentially saying that the State had not exercised the option to provide for refusal of surrender under Article 4.7(a) of the Framework Decision in cases where the offence specified in the warrant is regarded in law as having been committed in the State. Section 42 was the most closely relevant section, but it was silent on this issue. In the second part of the paragraph, he appears to interpret section 44 as applying to cases where the offence is committed in a third country (neither the issuing nor the executing Member State) but, by use of the phrase, “other than this state,” excludes its application to cases where it was committed in the State. He refers to the contra legem principle and suggests that he is not doing violence to section 44, but he does not consider the conformity of section 44 with Article 4.7(b) of the Framework Decision.

23. Having thus rejected the claim that surrender was prohibited by section 44 and having ordered the surrender of the appellant, the learned 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”.

24. One of the appellant’s grounds of appeal is that the learned High Court judge erred insofar as he found that there was jurisdiction to surrender the appellant and, more specifically, insofar as he held that the prohibition on surrender contained in section 44 of the Act of 2003 related only to cases where the offence for which surrender is sought was committed outside the territory of the State (Ireland) and the issuing state.

The legal background

25. The effect of section 9 of the Offences against the Person Act, 1861 as amended by the Third Schedule to the Criminal Law Act, 1977 and Article 3 of the Offences against the Person Act, 1861 (Section 9) Adaptation Order, 1973 [S.I. No. 356 973] is that the Courts of Ireland have jurisdiction to prosecute an Irish citizen for an offence of murder or manslaughter committed outside the jurisdiction and irrespective of the nationality of the alleged victim. The section and the Statutory Instrument are quoted in full in the judgment of the Chief Justice.

26. Section 44 constitutes an implementation of Article 4.7(b) of the Framework Decision. That provision, in turn, replicates in substance a provision of the European Convention on Extradition, (“the Paris Convention”), done at Paris on 13th December 1957.

27. Article 7 of the Paris Convention, under the heading, “Place of commission,” provided:

1. The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory.

2. When the offence for which extradition is requested has been committed outside the territory of the requesting Party, extradition may only be refused if the law of the requested Party does not allow prosecution for the same category of offence when committed outside the latter Party's territory or does not allow extradition for the offence concerned

28. Article 26 of the Paris Convention permitted a reservation to be made in respect of Article 7 but provided that a contracting party “which has made a reservation of a provision of the Convention may not claim application of the said provision by another party save in so far as it has itself accepted the provision.” The Explanatory Memorandum to the Convention states that the effect of this provision is to make any reservation “subject to reciprocity.”

29. Effect was given in Irish law to the terms of the Paris Convention by the combined effect of section 8(1) of the Extradition Act, 1965 and, in the case of any particular other country, by Statutory Instrument. The full terms of that section should be noted:

“Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Government are satisfied that reciprocal facilities to that effect will be afforded by another country, the Government may by order apply this Part in relation to that country.” (emphasis added)

30. By virtue of the Extradition Act 1965 (Part II) (No. 23) Order 1989 (S.I. No. 9 of 1989] the government, in exercise of power in that behalf conferred by section 8 of the Act of 1965, applied the Paris Convention in relation, inter alia, to Denmark.

31. The Supreme Court considered the Paris Convention, as thus applied to Part II of the Extradition Act, 1965, in Aamond v Smithwick, cited above. That case concerned a request by Denmark under Part II for the extradition of the applicant in respect of drug smuggling offences alleged to have been committed on the high seas, thus outside the territory of Denmark, the requesting State. The applicant was detained in accordance with the Act pending his extradition to Denmark. He applied pursuant to Article 40.4 of the Constitution for his release, in reliance on Article 7 of the Paris Convention, arguing that extradition for an extraterritorial offence was precluded in a case where this State did not also allow prosecution for such an offence when committed outside the national territory. At the time, it was not possible to prosecute him in Ireland for offences of the type for which he was sought. Finlay C.J. delivered the judgment of this Court. He considered that the provisions of Part II of the Act provided “what might be described as basic requirements and guidelines for cases where the government being satisfied that appropriate reciprocal facilities will be afforded by another country apply Part II of the Act of 1965 to a request for extradition in a case where no convention or extradition treaty or agreement exists.” (see page 68 of the report). The Chief Justice was satisfied that the provisions of Article 7.2 of the Convention applied and that their application was mandatory, because, inter alia, they provided “a clear protection in certain circumstances to an individual against the detention and extradition which is provided for in the scheme.”

32. That case was, of course, decided against the background of the Extradition Act, 1965 in application of the Paris Convention. The surrender of Mr Aamond was subsequently sought pursuant to the Act of 2003 and refused in a ground not relevant to the present proceedings.

33. Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender of persons between Member States was, in due course, adopted and implemented in Irish law by the Act of 2003. The original proposal for the Framework Decision did not include Article 4.7 (a) or (b). It included a provision which would have permitted refusal of surrender in respect of an offence committed outside the issuing Member State where the offence in question did not exist under the law of the executing State.

34. On 4th December a number of Member States proposed the introduction of additional grounds for non-execution based on Article 7 of the Paris Convention. Hence Article 4.7 was adopted. The Framework Decision does not, however, contain any provision for reservation on the lines of Article 26 of the Paris Convention.

35. Article 4.7 of the Framework Decision is headed “Grounds for optional non-execution of the European arrest warrant,” is essentially expressed in similar terms to Article 7 of the Paris Convention. It provides that the “executing judicial authority may refuse to execute the European arrest warrant” in cases specified in seven paragraphs. As noted above, the Chief Justice in Aamond v Smithwick considered that Article 7.2 of the Paris Convention conferred protection on individuals.

36. The paragraph of Article 4 of the Framework Decision, which is relevant for present purposes is in paragraph 7 and is as follows:

“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 a place treated as such;

37. It is not clear whether the availability of these grounds for non-execution depends on whether they have been adopted in the Member State’s implementing legislation or whether they are available to the national court, when performing the function of executing judicial authority. It was not argued on behalf of the appellant that he could rely on Article 4.7(b) other than by virtue of its implementation in the form of section 44 of the Act of 2003. Thus, I will not consider the possibility that the appellant could invoke Article 4.7(b) directly.

38. It is common case, as was accepted by Peart J, that section 44 represents the exercise by the State of the option in favour of non-execution provided for by Article 7.4(b).

Submissions on the appeal

39. The appellant submits that Peart J misinterpreted section 44 by reading into it the additional words “other than this State (i.e. in a third state),” thus making the section inapplicable on the facts of this case. It is submitted that the decision in Aamond v Smithwick required the Extradition Act, 1965 to be treated as penal legislation and interpreted strictly, that the same principle applies to the Act of 2003 and that the requirement of conforming interpretation derived from the judgment of the Court of Justice in Case C-105/03 Pupino [2005] ECR I-5285 does not justify the insertion of these words. In any event, on the ordinary literal interpretation of section 44, it does not include the added words.

40. At the hearing of the appeal, Mr Garret Simons, Senior Counsel, submitted, on behalf of the appellant, that section 44 recognises a principle of reciprocity. The executing Member State is not required to surrender the person unless it practises extra-territorial jurisdiction in the same circumstances. Section 44 should be given a purposive interpretation. It was submitted that the learned High Court judge mistakenly restricted the purpose of section 44 by limiting it to Article 2.1. The object of section 44 is to implement Article 4.7(b) and it should be interpreted in conformity with that provision.

41. When analysing whether the offences are the “same offences” for the purpose of Article 4.7(b), a legal, not a factual approach is required. Put otherwise, in deciding whether Ireland does or does not allow prosecution “for the same offences when committed outside its territory,” the expression “the same offences” must be taken as including not only the factual components of the offence but also the conditions pertaining to the exercise of extra-territorial jurisdiction. That exercise in the present case will take account of the different bases on which the two states exercise extra-territorial jurisdiction. The crucial element, so far as Ireland is concerned, is that the offence of murder, when committed outside Ireland, cannot be prosecuted here unless the alleged perpetrator is an Irish citizen. This is not a necessary or relevant element under French law.

42. The Minister maintains on the appeal the stance he took in the High Court. He argues throughout for a plain and literal approach to the interpretation of section 44 and accepts that paragraphs (a) and (b) of Article 4.7 provide for two entirely different situations. He says that section 44 is the statutory provision whereby the Oireachtas, when implementing the Framework Decision in domestic law, chose to avail in a particular manner of the ‘extra-territorial’ opt-out allowed for by Article 4.7(b) of the Framework Decision. The Oireachtas never chose to avail of the-opt out contained in sub-paragraph (a) of Article 4.7. Therefore, the Minister says, section 44 has no application in this case, where the offence for which surrender is sought was not committed in a third state and this is the plain and literal meaning of section 44 of the Act. If the offence alleged in this case had been committed outside Ireland, for example in the United Kingdom, the section might have operated as a bar to surrender. It has no application to the present case because the offence was committed in the State.

43. The Minister, presumably concerned to address the divergence between the language of section 44 and the terms of Article 4.7(b), submitted that, although an executing State may refuse to order surrender where the offence is committed outside its territory and the executing State would not have jurisdiction to prosecute, this option was taken up in section 44 of the 2003 Act but in a qualified way, by applying the option only where the acts or omissions in question were committed outside the State.

44. In support of this position, the Minister advances a somewhat complex argument, by introducing section 42 of the Act to his analysis. As has been seen, the learned High Court judge also sought assistance from section 42. What the Minister says can, I hope, be fairly paraphrased as follows. Article 4.7(a) of the Framework Decision permitted a Member State to provide in its laws for refusal of surrender (the Framework Decision says “non-execution”) where, under its law, the offence is regarded as having been committed in whole or in part in the territory of that State. The Minister accepts that the Oireachtas never chose to avail of this opt-out.

45. However, the Minster has submitted that section 42, as originally enacted, prohibited surrender in all circumstances where offences under Irish law could be the subject of possible prosecution. The section, as originally enacted contained three paragraphs, (a), (b) and (c). These provided for the following three situations:

• Where the DPP or Attorney General was considering but had not yet decided whether bring proceedings against the person for the offence in question (section 42 (a));

• Where proceedings had been brought against the person for that offence in the State (section 42 (b)); and

• Where the DPP or Attorney General had decided not to bring a prosecution or had entered a nolle prosequi (section 42 (c).

The provision for the third situation by paragraph (c) was repealed by section 83 of the Criminal Law (Terrorist Offences) Act, 2005.

46. According to the Minister, the Oireachtas, in enacting section 42, had in effect closed off the possibility of surrendering a person who had committed an offence in Ireland. The Minister accepted the existence of a fourth possibility, namely where no consideration had ever been given to the person in question being prosecuted in the State. The important phrase is in effect. The Minister does not contend that section 42 is an actual implementation of Article 4.7(a).

47. The Minister submits that the-opt out provision in Article 4.7(b) was adopted into Irish Law under the 2003 Act as originally amended through the combined effect of sections 42 and 44 of that Act. The Oireachtas made conscious decisions as to which of the opt-outs in the Framework Decision it would avail of and as to whether to adopt them in their entirety. Not all of the opt-outs were adopted and the forms of the opt-outs are not identical. In effect, surrender was barred under section 42, where the offence was committed in Ireland under Section 42. The Minister appears to reach this conclusion by equating the question of law, i.e., whether the offence was regarded as having been committed in Ireland, with the three questions of fact which arose under section 42 as originally enacted and the two such questions after the 2005 amendment. Each of those concerns decisions whether or not to prosecute.

Problems of interpretation

48. The question raised by the appellant’s objection is whether section 44 of the Act of 2003 prohibits his surrender, a question which depends in turn on how that section is to be interpreted. Two closely related issues of interpretation need to be considered.

49. The first of these is the application of the rule of conforming interpretation of national law in the light of the measure of the law of the European Union, here the Framework Decision, which it implements. The second is whether the national measure, section 44 in particular, is to be considered solely in the light of the general objective of the Framework Decision as expressed in particular in Article 2 or whether the relevant rule is rather Article 4.7(b) and whether that provision confers rights on individuals. It is also necessary to bear in mind, in any event, that the method of interpretation to be used when interpreting a Framework Decision is not necessarily a simple literal one.

50. Having determined the correct approach to interpretation generally, I will turn to a consideration of section 44 in particular.

Conforming interpretation

51. The principle that the courts of the Member States are obliged to interpret any particular provision of national law in the light of the provision of the law of the European Union (formerly the European Community) it is intended to implement is called the principle of conforming interpretation. Pupino, cited above, applies to framework decisions adopted under the now defunct “Third Pillar” a principle of conforming interpretation originating in Case 14/83 Von Colson and Kamann [1984] ECR 1891. It has been explained and adapted in later cases most notably Case C-106/89 Marleasing [1990] ECR I-4135. As explained by the Court of Justice in the latter case:

“in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.” (emphasis added).

52. In Case C-105/03 Pupino [2005] ECR I-5285, the Court of Justice extended that principle to framework decisions adopted under the Treaty on European Union (TEU) in spite of the absence from that Treaty of any provision corresponding to Article 10EC on which its previous case-law had principally relied in justification of the principle. The Court cited, in particular, the fact that Article 35 TEU conferred on the Court a jurisdiction to give preliminary rulings combined with the fact that even Member States which had not made the declaration necessary to permit its courts to make references were entitled to present observations to the Court. The Court explained:

“The jurisdiction [to make references for preliminary ruling] would be deprived of most of its useful effect if individuals were not entitled to invoke framework decisions in order to obtain a conforming interpretation of national law before the national court.”

That principle requires the national court, where necessary, to “consider the whole of national law in order to assess how far as it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision” (paragraph 42).

53. The Court described the basic nature of the obligation in similar terms to those used in Von Colson and Kamann. It is to interpret the national law “as far as possible, in the light of the wording and the purpose” of the framework decision.

54. The Court recognises that there are two types of limits to the obligation of the national court:

• Firstly, the court’s obligation is to interpret in conformity with the framework decision only insofar as that is possible; it is not obliged to set aside the national law, i.e., it need not act contra legem;

• Secondly, the interpretative obligation may be subject to limits derived from general principles of law; in particular, the obligation does not require the imposition of criminal liability.

55. Furthermore, as can be seen from the reasoning in Pupino, individuals are entitled to rely on the principle in order to invoke the terms of framework decisions. The specific questions posed to the Court by the Italian court in Pupino concerned provisions of a framework decision which required national law to provide facilities to child victims appearing as witnesses in criminal prosecutions. In that context, the Court held that the Framework Decision had to be interpreted “in such a way that fundamental rights, including the right to a fair trial as set out in Article 6 of the [European Convention on Human Rights]………………are respected.(paragraph 59).

56. The effect of the Pupino principle in application of the procedure for the European arrest warrant was explained by Murray C.J. in Minister for Justice Equality and Law Reform v Altaravicius [2006] 3 IR 148 at 156 as follows:

“When applying and interpreting national provisions giving effect to a framework decision the courts "must do so as far as possible in this light of the wording and purpose of the Framework Decision in order to attain the result which it pursues" (see Criminal proceedings against Pupino (Case C-105/03) [2005] E.C.R. I-05285). The principle of conforming interpretation is limited, as the Court of Justice has pointed out in Pupino and other cases, to the extent that it is possible to give such an interpretation. It does not require a national court to interpret national legislation contra legem . If national legislation, having been interpreted as far as possible in conformity with community legislation to which it purports to give effect, but still falls short of what is required by the latter, a national court must, as a general principle, apply that legislation as interpreted although there may be other consequences for a member state which has failed to fully implement a directive or framework decision.”

What purpose is to be considered?

57. The Court of Justice speaks in Pupino of the wording and the purpose of the framework decision. This echoes the general interpretative practice of the Court of Justice, which, so far as the treaties were concerned, can be traced back to Case 26/62 Van Gend en Loos [1963] ECR 1. That, as the Court said at page 12 of the report, is to consider the “spirit, the general scheme and the wording” of provisions of the Treaty. Variations have been applied in many cases over the years, depending on context. To give but one example, the Court in Joined cases C-267/95 & C-268/95 Merck & Co v Primecrown Ltd [1996] 1 ECR 1-6285 referred to “other criteria of interpretation,” where there was divergence in the different language versions and spoke of “the general scheme and the purpose of the regulatory system of which the provisions form part.” (paragraph 21.).

58. In Pupino, the Court made specific reference to the wording and the purpose of the framework decision. The general purpose and objective of the Framework Decision was described by Murray C.J, in his judgment in Altaravicius, cited above. He said at page 153:

“The Act of 2003 is the means adopted by the State to give effect to its obligations under the framework decision. Those obligations are reflected in s. 10 of the Act which provides that where a European arrest warrant has been duly issued in respect of a person within the State, that person shall, subject to and in accordance with the provisions of the Act and the framework decision, be arrested and surrendered to the issuing state.”

59. Peart J in the High Court appeared to accept the argument of the Minister that the framework decision clearly sets out its aim and objective in Article 2.1 of the Framework Decision namely the surrender of persons either for prosecution or for the service of sentences already imposed.

60. However, Article 4.7(b) provides, in terms, that an executing judicial authority may refuse to execute an arrest warrant in either of the two situations described at (a) and (b). Insofar as there may be doubt about the meaning of a national provision implementing either of these options or, as they have been called, “opt-outs,” it is obvious that the principle of conforming interpretation applies to it in the sense that it is informed by the option it implements. National law might, depending on circumstances, have to be given a restricted meaning to prevent it exceeding the limits of the Union provision at issue. In other cases, of which this may be one, it may have to be given a meaning which better recognises the rights of individuals.

61. There does not appear to have been any explicit decision to the effect that a qualification or exception to a European Community or European Union measure should be taken into account when interpreting a provision of national law. The Court did, however, in Case 8/81 Becker [1982] ECR 53 decide that an individual could rely on the direct effect of an exempting provision of the Sixth Directive on value-added tax against a Member State which had not implemented it. In Case 322/88 Grimaldi v Fonds des Maladies Professionnelles [1989] ECR 4407, the Court held that a national court was bound to take into account even a Commission recommendation when interpreting a national law regarding categories of illness covered by a European schedule of occupational diseases. The effect would, in that case, be to broaden the scope of national provisions.

62. There does not seem to me to be any reason in principle to exclude the principle of conforming interpretation from a measure merely because it implements an “opt-out.” On the contrary, logic demands that the principle be applied equally to such a situation. Indeed, it might well be that a correct interpretation would lead to the exclusion of an individual from the benefit of a national measure, once it was correctly interpreted as a matter of European Union law.

63. Accordingly, I am satisfied that section 44 must be interpreted in conformity with Article 4.7(b) and not merely with the general objectives of the Framework Decision.

64. Once it is established, as I believe it is, that the principle of conforming interpretation applies, it follows that the first thing to do is to seek out the correct meaning of Article 4.7(b).

65. The first and in truth fundamental argument of the Minister is that section 44 has no application in this case for the simple reason that the offence specified in the arrest warrant was, as a matter of fact, committed in this jurisdiction. The condition for the application of the second part of Article 4.7(b) is that “the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory.” The Minister’s submission is plainly completely inconsistent with Article 4.7(b) for two reasons.

66. Firstly, the article is concerned with the law of the executing State. The facts are not relevant. In particular, it is irrelevant that the offence specified in the warrant was committed in the executing State. Secondly, the expression the “same offences,” for the same reason, refers to offences of the same type as that charged in the arrest warrant. It cannot refer to the actual offences. Such a reference would make no sense. It would make nonsense of the history of the provision tracing back, as it does, to Article 7.2 of the Paris Convention. The paragraph is concerned with the law of the executing State in the hypothetical situation where offences of the same type are committed outside its territory.

67. Accordingly, if it is to be interpreted as contended by the Minister, section 44 could not be an implementation of Article 7.4(b), simply because it directly contradicts it.

68. I also disagree with the Minister’s second and more complex argument, accepted by Peart J, to the effect that sections 42 and 44 combined are to regarded as an implementation of Article 4.7(a) and/or (b). I confess to having difficulty in following this argument, because the Minister said at one point in his written submissions that the State had never chosen to avail of the opt-out provided by Article 4.7(a) and that paragraphs (a) and (b) deal with two entirely different situations. Nevertheless, he also submitted that section 42 in effect closed off the possibility of surrendering a person who had committed an offence in Ireland and that is the subject-matter of paragraph (a).

69. If the Minister is contending that section 42, whether as originally enacted or as amended in 2005, represents, in any way an implementation of Article 4.7(a), his submission is erroneous. Paragraph (a) deals with the situation, as here, where the offence is regarded by the law of the executing Member State as having been committed on its territory. Clearly, it covers, first and foremost, the simple case, such as the present, where the offence was in fact committed in the territory of the executing Member State. It addresses the place where the offence, as a matter of the law of that State the offence specified in the warrant is regarded as having been committed.

70. If the State had, in fact, adopted the “opt-out” provided by paragraph (a), there would, of course, be no difficulty. The appellant’s surrender would be prohibited. Furthermore, I do not accept that section 42, whether in its 2003 form or its 2005 form can be regarded as any form of implementation of either paragraph (a) or paragraph (b). Each paragraph of section 42 is concerned with a possible or actual prosecution in the State for the actual offence: where one is being considered (paragraph a); where there has in fact been a prosecution in the State of the person sought (paragraph b).

71. Where the DPP has decided not to prosecute (paragraph (c), now repealed). None of these provisions has any concern with whether or not, as a matter of Irish law, the offence is regarded as having been committed in the State, which is the subject-matter of Article 4.7(a); none is concerned with Irish law where offences of the type named in the arrest warrant are in fact committed outside Irish territory.

72. For all of these reasons, I believe that the learned High Court judge was in error when he interpreted section 44 by interpolating the qualification “other than this State (i.e. in a third state).” Firstly, Article 4.7(b) contains no such provision. Thus, the judge could not have reached this result by applying the principle of conforming interpretation. Secondly, section 44 itself contains no such provision. Although the learned judge did not consider that it was “contra legem to hold that section 44 of the Act of 2003 prohibits surrender in respect of offences which are committed in a country other than the issuing state and other than this State (i.e. in a third state),” that qualification to the obligation of conforming interpretation could never be deployed for the purpose of inserting into national law a set of words which were in themselves contra legem.

73. In short, I am satisfied that Article 4.7(b) applies where the offence specified in the warrant was committed outside the issuing Member State and, under its law, the executing Member State does not prosecute for the same offences. The question remains whether section 44, properly interpreted in the light of Article 4.7(b) prohibits surrender in this case.

74. Counsel for the appellant argued that a principle of reciprocity underlies the correct interpretation of the provision, though he did not cite any authority for that as a general proposition of extradition law. The law of extradition is the product of a great mixture of many bilateral treaties and some multi-lateral conventions. It is generally the product of negotiation between the representatives of the contracting states, which frequently have different and divergent criminal law and procedure. It is by no means uncommon that extradition treaties cater for such differences. Qualifications, exceptions or reservations are commonplace. The best known divergence is that many but not all civil-law countries had a practice, often at the level of constitutional law, of refusing to extradite their citizens. Common-law countries have not historically refused extradition on that ground. The resulting treaties are a matter for negotiation. Nor have I been able to discern such a general principle in the terms of the Paris Convention. At most two provisions recognise the possibility of making some provisions reciprocal.

75. That is not to say that a requirement of reciprocity may not be a feature of individual extradition provisions. As has been seen above, section 8(1) of the Act of 1965 envisaged that the adoption by the Government by order of an international convention in relation to another country would depend on reciprocal facilities being offered by that country. Finlay C.J. referred specifically to this requirement in the context of basic requirements and guidelines.

76. Although there does not appear to have been any direct decision on the point, there are some indications of a similar interpretation in the United Kingdom. Jones on Extradition (Sweet & Maxwell, London 1995 at paragraph 5-012, p. 131), referring to Article 7 says: “If a party requests extradition for an offence committed outside its territory, extradition may be refused only if the requested party’s law does not allow for a prosecution in equivalent circumstances.” This statement was repeated in the 2001 edition (see Jones on Mutual Legal Assistance par. 10-018), the last before the (UK) Extradition Act, 2003, which codified the law on extradition and implemented the European Arrest Warrant. These statements seem to be regarded as explanations of the provisions of the (UK) Extradition Acts of 1967 and 1989. Lord Justice Scott Baker’s report to the Home secretary of 30th September 2011 uses the expression, “corresponding circumstances,” taken apparently from section 3(1)(c) of the (UK) Extradition Act 1967.

77. The United Kingdom legislation of 2003 contains no overt acknowledgement of the Framework Decision or the notion of the European arrest warrant. Member States party to the Framework Decision are described as “Category 1 territories.” Nonetheless, the definition of extradition in section 64(4) of that Act seems to be regarded as an implementation of Article 4.7(b). It provides:

“The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—

(a)the conduct occurs outside the category 1 territory;

(b)the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law);

(c)in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment.” (emphasis added).

78. The expressions corresponding circumstances, modified to “equivalent circumstances” in Jones on Extradition, has thus, it appears been used in United Kingdom legislation since 1967. It appears to be a reflection of Article 7.2 of the Paris Convention. It is particularly of note that the United Kingdom Parliament has retained the expression in its implementation of the Article 4.7(b) opt-out.

79. While Lord Justice Scott Baker considers it to be an aspect of double-criminality, it seems to me to require something more. Article 4.7(b) does not in itself require reciprocity in the sense that each Member State must have adopted the opt-out. It is for each Member State to decide independently whether to avail of the various options, in particular Article 4.7(b). However, it is still possible to interpret the provision as implying a reciprocal application of the respective laws of the issuing and executing states. By that I mean that Article 4.7(b) envisages that prosecution of the extra-territorial offences at issue should be subject to similar conditions in each State.

80. It is of particular interest to consider the views of Mr Remy Farrell and Mr Anthony Hanrahan, the learned authors of The European Arrest Warrant in Ireland (Clarus Press Dublin 2011). They are worthy of citation in extenso and, although they have not been among the authorities relied upon, they appear to have significantly influenced the submissions of the appellant.

81. Under the heading Article 4.7(b), the authors consider that Article 4.7(b) reflect a principle of reciprocity. They say:

“The rationale underlying Art 4.7(b) which is implemented by s 44 of the 2003 Act is quite different. Provisions of this type can be found in extradition agreements from the late 19th century onwards. Such provisions are based on the principle of reciprocity which held that one State should not be required to extradite for an offence if it could not request extradition for the same offence where the roles were reversed. The principle is directed at ensuring that an almost perfect balance of mutual obligations as between States is maintained.” (par. 12-14, page 182).

82. They consider that section 44 is concerned with a hypothetical comparison of the legal provisions of the two States regarding extra-territorial offences. They say:

“In essence s. 44 prohibits surrender in circumstances where the State would not be entitled to prosecute the same offence on an extra-territorial basis. This necessarily requires the court to engage in a hypothetical exercise of considering whether, if the respondent committed the offence in a third country, he could be prosecuted for that offence within the State on the basis of his nationality or some other feature of the offence which gives rise to an extra-territorial jurisdiction. It is immediately obvious that such an exercise is far from straightforward and it will require the court to consider first whether or not the offence is in fact an extraterritorial one and second, on the assumption that it is, on what basis it might be hypothetically prosecuted in this jurisdiction. ” (Par. 12-16, page 182).

The learned authors, at a later point, explain in some detail the test they consider to be applicable under section 44. I find this passage particularly persuasive. They say:

“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. Quite how far this translation of the different elements of the offence must go is not made entirely clear by s. 44. 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 fence is another State. It is less clear what the position is where the requesting State has asserted extraterritorial jurisdiction on the particular basis, such as active personality (i.e. the respondent is a citizen of the requesting State and as such criminally liable for offences committed abroad). Is the court restricted to considering whether the State would exercise extraterritorial jurisdiction on the same basis or can it consider whether extraterritorial jurisdiction might be exercised on an alternative bases? 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 cases as opposed to on some other ground.” (par. 12-21, page 184).

83. Article 7 of the Paris Convention inspired Article 4.7(b). This is clear from the travaux préparatoires. Even if it is expressed in slightly different terms, its effect seems to me to be the same. Article 4.7(b) uses the confusing term “same offences.” Literally interpreted, that might refer to the actual offences. Clearly, in context it does not. The Paris Convention used the expression “same category of offence.” That is how Article 4.7(b) should be interpreted.

84. Is the application of paragraph (b), however, defeated where, as here, the executing State prosecutes for the same type of offence but only on condition that the perpetrator is an Irish citizen? That is really the nub of this case.

85. The first part of Article 4.7(b) is satisfied, on the face of it, merely where the offence has been committed outside the territory of the issuing State. But a little more thought shows that more is plainly required. It is common case that France exercises extra-territorial jurisdiction on condition that the victim is or was a French citizen. The Framework Decision does not expressly require such a basis for the exercise of jurisdiction to be shown on the face of the warrant. Paragraph (f) of the standard form, at (d) reads: “Other circumstances relevant to the case (optional information) followed, in parentheses by “NB: this could cover remarks on extra-territoriality, interruptions of periods of time limitation and other consequences of the offence.)” It must be a fundamental pre-condition to the issue of a European arrest warrant that the law of issuing State permits it to exercise jurisdiction over any person whose surrender it seeks. To assume otherwise would be to undermine the fundamental requirement of mutual confidence and respect for the judicial decisions of the participating States. Hence, Article 4.7(b) must mean that the issuing State has jurisdiction to prosecute the person sought even though the offence was committed outside its territory.

86. As a matter of Irish law, a person not a citizen of Ireland could not be prosecuted for the crime of murder committed outside Ireland. Adverting to the words of Article 4.7(b), it is not true that Ireland does not exercise extra-territorial jurisdiction in respect of the crime of murder. Equally, it would not be true to say, without qualification, that Ireland exercises extra-territorial jurisdiction over the crime of murder. The question, “does Ireland prosecute for murder committed outside its territory?” is not susceptible to a yes or no answer.

87. The extra-territorial laws of Ireland and France are the converse of each other. A too-literal interpretation of Article 4.7(b) leads, in my view, to an uneven, capricious and arbitrary result, well illustrated by the present case. The English-law concept of corresponding circumstances tends to a more consistent result. It obviously envisages more that the mere search for correspondence, which is, after all, provided for elsewhere in the Framework Decision.

88. I believe that a sensible and fair interpretation of Article 4.7(b) demands the recognition of a principle of reciprocity. Thus, where a State exercises the option, surrender will be prohibited where the executing State does not exercise extra-territorial jurisdiction in respect of offences of the type specified in the warrant in the same circumstances. In the present case, the relevant circumstance is that the person whose surrender is sought is not an Irish citizen. Under Irish law, a person cannot be prosecuted outside the territory of the State unless he or she is an Irish citizen.

Section 44 interpreted in the light of Article 4.7(b)

89. For reasons I have already given, it is clear that section 44 must be interpreted, so far as possible, in the light of the relevant provision, here Article 4.7(b) of the framework decision.

90. The first part of section 44 sufficiently replicates the first part of paragraph (b) to make it clear that it was intended by the Oireachtas to implement that option. The offence was committed outside the territory of France.

91. It is true that the second part of the section does not use language which obviously corresponds to that paragraph. However, it does replicate two aspects of the second part of paragraph (b). Firstly, it concerns an offence committed “in a place other than the State,” which corresponds with “offences…committed outside its territory…” in Article 4.7(b). Secondly, it raises the question whether the offence “does not…… constitute an offence under the law of the State,” also found in paragraph (b).

92. Perhaps the most problematical aspect of section 44 is to be found in the words requiring that “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.” These are the words which led counsel for the Minister to argue that they refer to the actual offence committed in this case. I have already declined to accept this argument as incompatible with the terms of Article 4.7(b).

93. My view is that, in the light of paragraph 4(7)(b) these words can only refer to a corresponding but hypothetical offence of murder, committed outside Ireland, in which the question of Irish exercise of extra-territorial jurisdiction falls to be considered. The section relates to a hypothetical offence of murder. Thus, without doing any significant violence to the language of the section, the term, “does not,” is necessarily a reference to what Irish law provides for in such a situation. Looking at it as a grammatical problem, the use of the indicative form, “does not,” is equivalent to the conditional, “would not” and could, if necessary, be so read. However, that may not be necessary. Once the question is recognised as being hypothetical, the issue is whether, the crime of murder generally, when committed outside Ireland “constitute[e] an offence under the law of the State.”

94. In such a hypothetical situation, the question is whether the offence “does not,” “by virtue of having been committed in a place other than the State constitute an offence under the law of the State.”

95. The final lines of section 44 are: “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.” If the words were inverted to read as follows, they would be: “the act or omission of which the offence consists does not… constitute an offence under the law of the State, by virtue of having been committed in a place other than the State.”

96. In this way, section 44 can be made compatible with Article 4.7(b) without doing violence to the words, but merely by placing them, for better understanding, in a different order.

97. In my view, it is perfectly possible to interpret section 44 in conformity with Article 4.7(b). Under that provision, correctly interpreted, the surrender of the appellant is prohibited for the following reasons. Firstly, the offence specified in the European arrest warrant was committed outside France, the issuing Member State. Secondly, murder committed outside Ireland is not an offence under Irish law, unless the alleged perpetrator is an Irish citizen. Interpreted in the light of the Framework Decision, section 44 applies where Ireland would not have the power to prosecute on the same basis as France: under Irish law, a person who is not an Irish citizen cannot be prosecuted for a murder committed outside Ireland.

98. It follows that section 44 prohibits the surrender of the appellant. I would allow the appeal and set aside the order of the High Court. I would make an order pursuant to section 16(8) refusing an order for surrender of the appellant pursuant to section 16 of the Act of 2003 refusing and direct his release from custody.

Section s. 21A

99. Denham C.J. and Hardiman J have provided a full account of the evidence relevant to the issue which arises under s. 21A. I will, therefore, confine myself to referring to the highlights of that evidence.

100. The essence of the system of French criminal procedure is well known, even if it is often misunderstood. It is certainly very different from ours. It consists of two distinct phases. The first part is the investigation or instruction, conducted by a personage well-known in film and literature: the juge d’instruction. His or her function is to investigate the criminal complaint made against a person. The object of the instruction is the discovery of the truth. The juge d’instruction must collect evidence both for and against the accused. At the end of the instruction, the juge d’instruction decides whether there is enough evidence to place the accused on trial. The act of sending for trial is called the mise en examen, and has been translated into English as the indictment. As Me Dominique, the appellant’s French lawyer says, it is better to use the French expression, as there may be no equivalent in English or, more to the point, no equivalent procedure in Irish law. Indictment, in our sense, refers to a document presented by the prosecutor after the accused has been returned for trial. In France, the mise en examen is the act of a judge and results from a judicial decision. At any rate, there is no decision to put the person on trial until that point has been reached.

101. Much has been made of the conflict between the statements of French law made by Me Tricaud on behalf of the appellant and Mme Françoise Chaponneaux, vice-procureur de la République, provided by the Minister at the last day of the hearing. Insofar as there are differences, they principally relate to the rules regarding trial in absentia, which are not relevant to the central issue. Both lawyers agree that, if the appellant were to be surrendered to France pursuant to the European arrest warrant, the French criminal proceedings would be at the stage of the instruction.

102. Me Tricaud said in his statement to the High Court:

“The issuing of the said arrest warrant on the 16th February, 2010, is roughly equivalent to charging the Respondent with the offence. It means that the investigating judge has indicated that there is sufficient evidence against the respondent to warrant further criminal prosecution (though not necessarily enough evidence to place him on trial). The prosecution is now in the phase of “l’instruction”, or the examination phase.” (emphasis added).

103. Mme Françoise Chaponneaux agrees. She describes the procedure in great detail. She says that the juge d’instruction is only responsible for a procedure preparatory to the trial procedure. The aim of the investigation is to reveal the truth; it must consequently examine evidence of both innocence and guilt (à charge et à décharge). The accused enjoys the presumption of innocence. Quite explicitly she states that the appellant, if he is surrendered to France, will find himself at the stage of the instruction. It is only at the conclusion of the instruction that the juge d’ instruction decides whether to place him in mise en examen, i.e., send him for trial.

104. To be clear, therefore, the first stage of what has been described by Me Tricaud as a prosecution has commenced and is still in existence. The domestic French arrest warrant already issued is the equivalent of a charge.

105. Section s. 21A of the Act of 2003, inserted by the Act of 2005, provides:

106. Since the entry into force of the Act of 2003, the High Court and Supreme Court have handled a large number of cases of European arrest warrants. We now have a settled jurisprudence establishing the obligation of the courts to give effect to the purpose and objectives of the Framework Decision, to respect the principles of “free movement of judicial decisions……within an area of freedom security and justice,” of “mutual recognition” and a “high level of confidence between Member States, while also respecting fundamental rights and certain principles recognised by the European Convention on Human Rights.

107. Murray C.J. explained the relationship between the Framework Decision on the European arrest warrant and the Irish implementing statute in a passage also cited by O’Donnell J in his judgment in Minister for Justice, Equality and Law Reform v Olsson [2011] IESC 1. That passage from the judgment of Murray C.J. in Minister for Justice, Equality and Law Reform v McArdle [20005] 4 I.R. 260 at 268, is worth repeating. It is as follows:

“The European Arrest Warrant Act 2003 gives effect in this jurisdiction to the European Council Framework Decision of the 13th June, 2002, on the… . The recitals to that decision make reference to the implementation of "the principle of mutual recognition of criminal proceedings" and in particular recital number 6 which states "the European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council refer to as the 'cornerstone' of judicial cooperation". Accordingly, it seems to me that where a judicial authority of a member state issues a European arrest warrant and that is accompanied by a certificate referred to in s. 11(3) of the Act of 2003, both of which state and certify respectively, that the surrender of the person named in the warrant is sought for the purpose of prosecution and trial, that must be acknowledged as at least prima facie evidence of the purpose for which the request is made. It would, in my view, 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.” (Note: s. 11(3) of the Act of 2003 was repealed in 2005).

108. Murray C.J. further reflected on these principles in his judgment in the case of Minister for Justice Equality and Law Reform v Altaravicius, already cited. He explained that the Act:

“…must be interpreted in the light of the terms of the Framework Decision which it implements and with particular regard to the objectives to be achieved. The system or mechanism of surrender created by the Framework Decision applies in all Member States of the European Union. Recital 5 in the preamble to the Framework Decision refers to “… the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences …” It has as its object “… to remove the complexity and potential for delay inherent …” in pre-existing extradition procedures. (Whether, in the light of its structure and the manner in which it has been drafted it will achieve that objective, is another question.) As that Recital, Recital 6 and Article 1.2 make clear it is founded on the mutual recognition of judicial decisions and judicial cooperation within the European Union. Recital 10 emphasises “the mechanism of the European Arrest Warrant is based on a high level of confidence between Member States”. Both the preamble and provisions of the Framework Decision as well as the Act of 2003 acknowledge that in operating this system of surrender fundamental rights, including fairness of procedures, must be respected and provide for certain safeguards in that respect.

It is important to note that the ideas of mutual recognition and mutual respect relate to judicial decisions of a judicial authority, within the meaning of the Framework Decision, in one State by judicial authorities in other Member States.”

109. I will recall but will not repeat that this Court is under a duty of conforming interpretation as laid down in Pupino, which I have cited above and which is also cited by Denham C.J. in her judgment. The Court is obliged to interpret the Act of 2003 in conformity with the Framework Decision, though only so far as possible.”

110. The Framework Decision is, therefore, designed to provide, subject to the protection of individuals guaranteed in particular by the European Convention on Human Rights, an efficient and speedy procedure for the surrender of suspects between Member States in accordance with the principles of mutual respect and confidence. It necessitates a degree of respect for and understanding of different legal systems and, in particular, different criminal procedures. O’Donnell J explained the matter very well in his judgment in Olsson, cited above:

“In approaching the question of the interpretation of the Act, it is necessary to keep both the nature of the Act and its origins in view. One thing which can be said with assurance is that the Act does not intend that words such as “charge" and "prosecution" should only be understood as meaning a charge or prosecution in the Irish criminal justice system. The Act establishes a procedure for the reciprocal execution of warrants with legal systems, almost all of which differ in some ways, even at times significantly from that of this jurisdiction. If the Act intended that the only warrants emanating from a criminal justice procedure which was identical to that of Ireland would be executed here, then the Act would manifestly have failed to achieve its object, and indeed that of the Framework Decision."

111. Section 21A obliges the High Court to refuse surrender of a person who has not yet been convicted “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……” I do not think there is any problem in this case about the rebuttal of the presumption in s. 21A (2). The evidence of the two French lawyers is, in its most relevant aspects, virtually agreed.

112. In my view, it is clear from this evidence that a decision has been made to charge the appellant. Clearly, a decision to charge is not, in France, equivalent to a decision to put a person on trial. Indeed, it might be argued that, in our own system, a decision by the DPP to charge a person does not necessarily lead to his being put on trial and is, in any event, not the same thing as putting him on trial. It is unnecessary, however, to debate the matter any further. Me Tricaud accepts that the issue of the warrant for arrest in France was the equivalent of a charge. Furthermore, he speaks of "further prosecution." The object of the Framework Decision is, in a case such as the present, that the person be surrendered to the issuing State “for the purposes of conducting a criminal prosecution…” (See Article 1(1) of the Framework Decision.) I do not think that there is any evidence to rebut the presumption that a decision has been made “to charge” the appellant. Rather to the contrary, it has been decided to charge him.

113. The same cannot be said with regard to a decision “to try” him. The position in French law, as it has been explained to this court, is crystal clear. The appellant, if surrendered to France, will find himself in the midst of the stage of instruction or investigation. As O’Donnell J explained the matter in Olsson, “what is impermissible is that a decision to prosecute should be dependant on such further investigation producing sufficient evidence to put a person on trial.” That passage applies, a fortiori, to a decision to try a person. Where, as here, the evidence is so compellingly clear that the court must be, as the section says "satisfied," that no decision has been made to try the appellant, s. 21A explicitly obliges the Court to refuse the order for surrender. That could not be a clearer case for application of the notion of contra legem. It is not possible to construe s. 21A in the light of the Framework Decision, without disobeying its clear command.

114. I am, therefore, compelled to agree that the section prohibits the surrender of the appellant. If this section were not in such terms, it could be plausibly argued that, looking at the French criminal procedure in its entirety, and even accepting that it is still only at the stage of instruction, the surrender of the appellant is sought “for the purposes of conducting a criminal prosecution…” A broad, purposive and conforming interpretation could well lead to that result. But the section is quite explicit. It is not open to the Court, by means of conforming interpretation, to circumvent the clear terms of s. 21A.

115. Hardiman J points out in his judgment that a statement was made on behalf of Ireland in the course of negotiation of the Framework Decision in the following terms:

“Ireland shall, in the implementation into domestic legislation of this Framework decision, provide 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”.

If s. s. 21A had been expressed in those terms, it might well, in view of the obligation of conforming interpretation, have been possible to interpret the section in such a way as to permit the surrender of a person in the position of the appellant. The legislation did not, however, take the form indicated in the government’s statement. It introduced an explicit requirement that a decision have been made to try the person.

116. The result is that, in the state of the evidence before the Court regarding the stage which has been reached in the prosecution in France, the Court is coerced to conclude that no decision has been made to try the appellant. It follows that the Court must refuse to surrender the appellant.

117. I would allow the appeal and set aside the order of the High Court for the surrender of the appellant to France.

JUDGMENT delivered on the 1st day of March, 2012, by O’Donnell J.

1 The facts of this case have been set out in the judgments already delivered herein and it is not necessary to repeat them here. Accordingly, I will turn to the arguments, and set out the reasons for my conclusions on them.

Section 42
2 In order to appreciate the issue that arises here it is sufficient to identify the following facts:-

(i) Mme. du Plantier was killed in December 1996, at a time in which extradition from Ireland was governed by the provisions of the Extradition Act 1965 (as amended).

(ii) In 1997 the D.P.P. made a decision not to prosecute Ian Bailey. That decision was revisited on a number of occasions thereafter, and prior to 2003, with the same result.

(iii) The European Arrest Warrant Act 2003 came into force on the 1st January 2004. Section 42(c) of the Act of 2003 provided that a person shall not be surrendered if, inter alia, the Director of Public Prosecutions has decided not to bring proceedings against the person for an offence consisting of an act or omission that constitutes in whole or in part the offence specified in the European arrest warrant. No decision was made by the D.P.P. in relation to the prosecution of Mr. Bailey while s.42(c) was on the statute book.

(iv) There is no doubt, and it was not contested in this appeal, that if a warrant had issued for Mr. Bailey after the entry into force of the Act of 2003, and before its repeal in 2005, the Court would have been obliged to refuse to surrender him on this ground.

(v) Part 8 of the Criminal Justice (Terrorist Offences) Act 2005 (“Terrorist Offences Act”) affected a number of amendments to the Act of 2003. Section 83 of the \terrorist Offences Act amended the Act of 2003 by removing subsection (c) of s.42. (It appears that s.42(c) had been included in the Act as purported implementation of the optional ground fro non-surrender contained in Article 4(c) of the Framework Decision, but was not in fact permitted by that Article which referred to decisions by judicial authorities.)

(vi) By s.68 of the same Act it was provided that the amendments effected by Part 8 other than that contained in s.83 would apply to European arrest warrants “endorsed after the passing of the Act”. It followed therefore, and again was not in contest on this appeal, that the removal of s.42(c) by s.83 of the 2005 Act applied immediately to warrants in existence but not yet endorsed, which were described on this appeal as “pipeline warrants”, as well as to warrants subsequently endorsed and to which all other amendments applied.

3 Counsel for Mr. Bailey argued that on these facts Mr. Bailey was entitled to continue to rely on s.42(c). In this regard counsel relied almost exclusively on the provisions of s.27 of the Interpretation Act 2005 dealing with the effect of repeal of an enactment. Section 27(1)(c) provides that when an enactment is repealed, the repeal does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment. It was not contested on this appeal that the effect of the amendment contained in s.83 of the Terrorist Offences Act, was to repeal s.42(c) of the Act of 2003.

4 The argument advanced on behalf of the appellant was very simple indeed. It was argued that the provisions of the Act of 2003, meant that by virtue of the D.P.P.’s decision in 1999, Mr. Bailey had a “right” not to be surrendered, and that the Terrorist Offences Act should not, and could not, be interpreted to remove that right. Therefore although the warrant here was issued and endorsed long after the coming into force of the Terrorist Offences Act, and the D.P.P.’s decision has been made long prior to the coming into force of the Act of 2003, s.27(1)(c) of the Interpretation Act 2005 meant, it was argued, that Mr. Bailey had a “right” which had not been removed by the repeal of s.42(c).

5 The provisions of s.27 of the Interpretation Act 2005 must be read in the light of s.4 of that Act which applies the Act to any enactment “except insofar as the contrary intention appears in this Act, in the enactment itself, or where relevant in the Act under which the enactment is made”. Accordingly s.27(1)(c) is in practical terms, identical to s.21(1)(c) of the Interpretation Act 1937 which provided:-

“Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal shall not-

…

(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the statute or portion of a statute so repealed, ….”

Because the sections are identical in practical terms, no argument was addressed as to whether the Court should consider the Act of 2005 or the Act of 1937. I would reserve for another day any question of the scope of application of the interpretative principles of the Act of 2005. For ease of reference I will refer to the provisions of s.27(1)(c) of the Act of 2005.

As it happens, provisions in the same form are to be found in s.16(1)(c) of the United Kingdom Interpretation Act 1978, and similar provisions are to be found, as far back as the Interpretation Act 1889. A significant body of law has developed on the meaning of this provision, not all of which is easy to interpret or reconcile.

6 From the outset it is helpful to distinguish between two closely related presumptions in common law. The first is the presumption that legislation is presumed not to have retrospective effect unless clear words are used. The second is the presumption, embodied in s.27(1)(c) of the Interpretation Act 2005 that legislation is not intended to affect vested rights again unless the contrary intention clearly appears. It is particularly important to make this distinction in Irish law because the first presumption, which at common law is no more than a matter of statutory interpretation, becomes, at least to some extent, a constitutional rule in Ireland by virtue of the provisions of Article 15.5 of the Constitution. The distinction between the two presumptions, is very helpfully discussed in the speech of the late Lord Rodger in the United Kingdom House of Lords in Wilson v First County Trust Limited (No.2) [2004] 1 AC 816 at p.873 et seq. As Lord Rodger observes, the distinction was first made in the decision of the English Court of Appeal in West v Gwynne [1911] 2 Ch 1. In that case Buckley L.J. observed:

“During the argument the words “retrospective” and “retroactive” have been repeatedly used, and the question has been stated to be whether s.3 of the Conveyancing Act 1892, is retrospective. To my mind the word “retrospective” is inappropriate, and the question is not whether a section is retrospective. Retrospective operation is one matter. Interference with existing rights is another. If an act provides that as at a past date the law should be taken to have been that which is was not, that act I understand to be retrospective. … Suppose that by contract between A and B there is in an event to arise a debt from B to A, and suppose that an Act is passed which provides that in respect of such a contract no debt shall arise. As an illustration take the case of a contract to pay money upon the event of a wager, or the case of an insurance against a risk which an Act subsequently declares to be one in respect of which the assured shall not have an insurable interest. In such a case, if the event has happened before the Act is passed, so that at the moment when the Act comes into operation a debt exists, an investigation whether the transaction is struck at by the Act involves an investigation whether the Act is retrospective … But if at the date of the passing of the Act the event has not happened, then the operation of the Act in forbidding the subsequent coming into existence of a debt is not a retrospective operation, but is an interference with the existing rights in that it destroys A’s right in an event to become a creditor of B. As a matter of principle an Act of Parliament is not without sufficient reason taken to be retrospective. There is, so to speak, a presumption that it speaks only as to the future. But there is no like presumption that an Act is not intended to interfere with existing rights. Most Acts of Parliament, in fact, do interfere with existing rights.”

7 In classic common law theory a person can be said to have a right to do that which is not specifically prohibited by law. Accordingly since most Acts of the Oireachtas change the legal position, they will necessarily interfere with existing rights, (in that sense) and that indeed is their purpose. The presumption contained in s.27(1)(c) of the Interpretation Act 2005 is not a presumption against such effect: rather it is a presumption against interference with “rights … acquired or accrued” or what, in the language of the cases can be said to be “vested rights”. Thus Bennion in Statutory Interpretation (4th ed. Butterworths, 2002) explains at p.259 the identical provisions of s.16(1)(c) of the Interpretation Act 1978, as follows:-

“The right etc. must have become in some way vested by the date of repeal, i.e. it must not have been a mere right to take advantage of the enactment now repealed.”

The same point is made in Craies On Legislation (9th ed. Sweet and Maxwell 2008), at para. 14.4.12:-

“The notion of a right accrued in s.16(1)(c) requires a little exposition. In particular the saving does not apply to a mere right to take advantage of a repealed enactment (clearly, since that would deprive the notion of a repeal of much of its obvious significance). Something must have been done or occurred to cause a particular right to accrue under a repealed enactment.”

8 Accordingly, in order to succeed in this argument, the appellant/respondent must show two things: first, his entitlement after the 1st January, 2004, to have a court refuse to surrender him on the grounds set out in s.42(c) was a “vested right” or a right which could be said to be “acquired or accrued” at the time of the repeal of s.42(c); and second, that the Oireachtas has not used clear words to rebut the presumption.

9 The question in any given case of what constitutes a vested right for the purposes of this Section is often a difficult one. As Lord Rodger points out at paragraphs 195 and 196 of his speech in Wilson v First County Trust Limited (No.2), [2003] 3 WLR 568, the presumption normally falls to be considered in relation to legislation which alters rights only for the future. Since, as he says at para.195, it is more likely that “Parliament intended to alter vested rights in this way that it intended to make a retroactive change, in practice the presumption against legislation altering vested rights is regarded as weaker than the presumption against legislation having retroactive affect”. At para. 196 Lord Rodger observes that “The courts have tried, without conspicuous success, to define what is meant by “vested rights” for this purpose”. It is apparent from his discussion of the concept, and that contained in the helpful decision of the Court of Appeal of England and Wales in Chief Adjudication Officer v Maguire [1999] 1 WLR 1778 that the decisions in the reported cases are not all easy to reconcile. Lord Rodger observed that this might lend weight to the criticism that the reasoning in such cases was essentially circular: courts are inclined to attach the label “vested” to those rights which they conclude should be protected from the effect of the new legislation. In essence it appears that there is a dual inquiry: does it appear that at the time the right was granted there it was intended that it should be permanent; and the closely related inquiry as to whether it is unfair now to remove it, even for future events. In some cases these may be difficult concepts to apply with precision. However in my view it is not necessary to explore the nature of the test to be applied in this case, because on any fair reading of the authorities it seems clear that as a matter of Irish law it has been understood that the entitlement to raise, and to benefit from, any particular statutory objection to extradition or surrender, cannot be understood to be a “vested right”.

10 In Sloan v Culligan [1992] 1 IR 223, this court had to consider the provisions of s.3 of the Extradition (European Convention on the Suppression of Terrorism) Act 1987, which provided that in respect of certain specified offences, the offence should “not be deemed to be a political offence or an offence connected with a political offence”. Under s.50(2) of the Extradition Act 1965, the High Court could direct the release of an arrested person if the offence to which the warrant related was a political offence or an offence connected with a political offence. Accordingly, the undoubted effect of s.3 of the Extradition (European Convention on the Suppression of Terrorism) Act 1987 was to remove, in relation to the specified offences, the political offence exception. There was no doubt that this applied to offences occurring after the coming into force of the Act. But each of the three plaintiffs in Sloan v Culligan were sought in respect of offences which were committed long before the coming into force of the Act of 1987. Two of the plaintiffs, Sloan and McKee, succeeded on other grounds, and the question of the nature of the entitlement to raise the defence to extradition that the offence was a political offence did not arise in their case. In the case of Magee however, the matter was addressed, and it is necessary therefore to consider the reasoning of the Supreme Court in that regard.

11 It is important to point out, that no claim was made as to the interpretation of the Act of 1987, by reference to the then applicable provisions of s.21(1)(c) of the Interpretation Act 1937. That may have been because of the explicit terms of s.1(4) of the Act of 1987 which provided that the Act applied “except where otherwise provided, in relation to an offence whether committed or alleged to have been committed before or after the passing of this Act”. The argument made on Mr. Magee’s behalf was however, that the removal of the political offence ground was contrary to Article 15.5 of the Constitution in that it was unconstitutional retrospective legislation, and contrary to a right or entitlement of his vested by Article 40.3 of the Constitution to protection from extradition which had been interfered with or left unprotected by virtue of the provisions of s.1(4) of the Act of 1987. The Supreme Court rejected the first claim on the basis that Article 15.5 was a prohibition against the enactment of retrospective laws declaring acts to be infringements of the law but did not contain any general prohibition of retrospection of legislation and that s.3 of the 1987 Act merely amended by statute what was a developing jurisdiction and the definition of a political offence for the purpose of the Extradition Act and did not create any offence or any infringement of the law within the jurisdiction.

12 For present purposes however it is the Court’s analysis of the challenge under Article 40.3 of the Constitution which is relevant. The court rejected the claim under Article 40.3 on the grounds that there was no right or entitlement accorded or vested by Article 40.3 to protection from extradition which had been interfered with. The reasoning of the court is set out at p. 272 as follows:-

The right of a plaintiff, as of every other citizen, concerning the question of his delivery into another State for the purpose of serving a sentence lawfully imposed on him in that State was, the Court is satisfied, a right at any given time to proper, due and fair procedures concerning an investigation of the validity of the warrant in respect of which he is delivered, and to a fair, proper and due inquiry into the protections applicable in law, within the State at the time of the application of his delivery, which may afford him a protection arising from the concept of a political offence or from any other of the concepts appropriate to prevent such a delivery. The provisions of the Act of 1987 constituted a development of the law applicable to the delivery of persons out of the jurisdiction of this State and into the jurisdiction of the Northern Ireland courts, amongst others, which the legislature in accordance with the decision of the State to ratify the European Convention on the suppression of terrorism, done at Strasbourg on the 27th January 1977, has validly decided to enact. Upon the passing of that statute the right of every citizen and every person affected by it simply is to its due application, and its application with regard to the provisions of s.3 thereof to a case where an offence was committed before the passing of the Act of 1987, but where a warrant requesting the delivery of the person concerned was not issued until after the passing of the Act, does not constitute, the Court is satisfied, any failure on the part of the State to defend, vindicate or protect any personal right of the plaintiff.”

13 While this decision was delivered in the context not of an interpretation of the statute, but rather a challenge to its constitutionality, it seems clear that its underlying reasoning was that a right to object to extradition on any particular statutory ground, was not and could not be said to be a right that was vested in the sense that it was not intended to be open to further future amendment or statutory development. On any fair reading of Sloan v Culligan, it seems to me that the reasoning in that case is fatal to the appellant/respondent’s contention here that a right was conferred by s.42(c) of the Act of 2003 which was vested, and which it would be so unfair to remove that the Oireachtas could not be presumed to have intended to do so without clear words.

14 The Minister also relied on Attorney General v Abimbola [2008] 2 IR 302 and the judgment of Fennelly J. in this court. That case involved the transition between the Extradition Act 1965 and the European Arrest Warrant Act of 2003. The respondent Mr. Abimbola was wanted in Germany to serve a sentence. A request had been made by Germany by the Federal Republic of Germany pursuant to Part 2 of the Extradition Act 1965. However, before any application was made to court, that Act was repealed by the entry into force of the Act of 2003. No European arrest warrant was issued in respect of Abimbola. Accordingly it was contended on his behalf that he could not be extradited to Germany in pursuance of the request made under the now repealed Act of 1965, and that accordingly his detention was unlawful and he was entitled to release pursuant to Article 40.4 of the Constitution. That claim was rejected in the High Court, but allowed in this Court. It had been argued on behalf of the State in that case that while the German request gave rise to a liability acquired, accrued or incurred and although therefore the 1965 Act was repealed, that did not affect any legal proceedings in respect of any right, privilege, obligation or liability acquired.

15 In this Court Fennelly J. rejected the argument that once a request for extradition was made, Mr. Abimbola was under a “liability” for the purposes of either s.22(2) of the 1937 Act or s.27(2) of the Act of 2005 once a request was made. Fennelly J. rejected this claim and observed at p.331:-

“Nor do I think that the appellant became subject to a “liability” under the revoked statutory instrument. It is true that the appellant was “liable” in a colloquial sense, to be extradited to Germany as the result of the combined effect of Part II of the Act of 1965 and the statutory instrument applying that part in relation to Germany. However the Act of 1965 is concerned with the making of requests for surrender from other states and the means of giving them effect. The process involves the arrest and potential involuntary surrender of a person to another state. That does not constitute the imposition of a “liability” in the legal sense. The Interpretation Act does not affect the interpretation of s.8(7) of the Act of 1965 or the effect of the revocation of the application at Part II in relation to Germany.”

It is important to observe that the legal proceedings in respect of the extradition in this case had not commenced. If they had, different considerations might have applied. But the reasoning in Abimbola is itself at least suggestive that the mere passage of the Act of 2003 could not be said to confer upon Mr. Bailey a vested right in respect of a decision of the Director of Public Prosecutions (taken after all, before the coming into force of that Act). Mr. Abimbola did not have any liability acquired or accrued in respect of extradition at the time of the repeal of the Act of 1965, any more than Mr. Bailey had a vested right to resist surrender at the time of the repeal of s.42(c).

16 It is also a relevant consideration in my view, that the Act of 2003 may be said to have proceeded on the basis that the twin possibilities of surrender and refusal to surrender, were neither vested liabilities nor vested rights to which the provisions in relation to repeal contained in the Interpretation Act applied. It is a notable feature of this case that at the time of the killing of Mme. du Plantier an extradition request for Mr. Bailey would have failed by virtue of the provisions of s.16 of the Act of 1965, which precluded extradition for an offence occurring on Irish territory. It is not contended however that that provision conferred a vested right, which survived the repeal of the Act of 1965. It would be a rather curious conclusion therefore that the coming into force of the Act of 2003 by itself, and without more, could be said to have validly deprived Mr. Bailey of the ability to resist extradition under s.16 of the 1965 Act, but at the same time conferred upon Mr. Bailey a vested right to resist surrender (on the basis of a decision of the D.P.P., which itself predated the coming into force of that Act, and had indeed no legal significance in respect of extradition at the time when it was made) which was not lost by the repeal of s.42(c). Finally, I should note that although Sloan v Culligan and Attorney General v Abimbola [2008] 2 IR 302 were relied upon by the State in this case, and indeed in the judgment of the High Court, no plausible distinction of those cases was suggested in the appellant’s submissions. Accordingly I am satisfied that the appellant’s claim fails the first hurdle: the entitlement to resist surrender under s.42(c) is not a vested right. If anything it was to borrow the words of Craies, “a mere right to take advantage of a repealed enactment”.

17 Even if the provisions of s.42(c) could be said to confer a right to which s.27(1)(c) of the Interpretation Act 2005 applied, it seems to me to be furthermore an unavoidable conclusion that any presumption is displaced here, because on any fair reading of the Criminal Justice (Terrorist Offences) Act 2005, a contrary intention does appear.

18 First, the general thrust of changes to the extradition code first in the Act of 1987 and subsequently in the European Arrest Warrant Act 2003, is to make changes of general application, and not to provide any saver in respect of pre-existing claims. Indeed this approach in part underpins the conclusion in Abimbola. Second, it does not seem to me to be possible to interpret s.63 of the Criminal Justice (Terrorist Offences) Act 2005 as other than intending the application of the amendment affected by s.83 to cases in which there was a pre-existing decision of the D.P.P.

19 It will be recalled that s.63 made a special rule for the application of the amendments to the Act of 2003 affected by Part 8 of the Criminal Justice (Terrorist Offences) 2005 Act. These general amendments are to apply to warrants endorsed after the coming into force of the Act. That provision in itself is significant. A warrant endorsed just after the coming into force of the Act will have necessarily been in existence before the coming into force of the Act. If therefore this provision applied to the amendment of s.42(c), it would follow that there was a clear intention to apply the Act to warrants pre-dating the Act and in respect of which a decision of the D.P.P. had been made. But s.63 goes further and makes an express provision in respect of those amendments introduced by s.83. The special rule for all other amendments was disapplied. It follows therefore that the amendments made by s.83 were effective immediately on the coming into force of the Act and applied to warrants which had been issued and endorsed but had not yet been executed. Such warrants in existence at the time of passage of the legislation, can only relate to offences which predate the Act. It follows that since the only thing to which s.42(c) applies is a D.P.P.’s decision, that those warrants to which the amendments immediately applied must have been, or at least include warrants in respect of which the D.P.P. had made a decision not to prosecute.

20 It is not reasonable, in my view, to give the Act any other interpretation. It cannot, for example, reasonably be interpreted to apply only to decisions of the D.P.P. after the coming into force of the Act that would run counter to the clear and express words of s.63. The Act would then not apply to all European warrants whenever issued, and in particular to existing warrants not yet endorsed, but would only apply to such warrants if a decision not to prosecute had been taken after the coming into force of the Act. That is clearly not what the Act provides. Furthermore, if it was the intended operation of the Act, it is inexplicable that when a specific provision was being introduced as to the range of warrants to which the amendments would apply, that it would not have been clearly stated that in fact warrants whether endorsed or not, to which a decision of the D.P.P. had been made were not the subject of the amendment. In the circumstances, I consider that the appellant’s claim fails on both grounds, and accordingly, the provisions of s.42(c) of the Act of 2003 cannot avail him in this case.

Section 44
21 The provisions of s.44 of the European Arrest Warrant Act 2003 (as amended) (“the Act of 2003”) are already discussed in some detail in the judgments delivered by my colleagues. This is undoubtedly a difficult section, and I see the force of the approach taken by my colleagues, but I have, reluctantly, come to a different view.

22 It is common case that s.44 purports to implement in Irish law the provisions of Article 4(7)(b) of 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”). I agree that there is little difficulty in the first phrase in s.44 of the Act of 2003 (“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 that the issuing state”). It is the second portion of the Section: “… 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” which pose all the difficulty in this case.

23 In approaching the interpretation of both s.44 of the Act of 2003 and Article 4(7)(b) of the Framework Decision it is useful in my view to try and avoid reading the Section through the lens of the particular facts of this case. It is useful to recall that these provisions are provisions of general application dealing with what might be described broadly as the issue of extraterritorial jurisdiction. That issue can and does arise in a number of circumstances quite apart from the particular, and quite unusual facts, presented in this case. For example, and most simply, the issue may arise in a case of offences, such as assault in Irish law, in respect of which the executing state simply does not itself exercise an extraterritorial jurisdiction on any basis. In other and more difficult cases, the issue may arise in circumstances where the definition of the offence, such as conspiracy, may be capable of including conduct which occurs partially within the territory of the executing state. A different situation may be where the definition of an offence in the issuing state, such as drug trafficking, may encompass preparatory acts occur in the territory of the executing state, but which themselves might not be regarded as part of an offence by the law of that state. Obvious difficulties of principle arise when an executing state may be required to enforce an extradition warrant in respect of acts occurring within the territory of that state which that state itself does not consider unlawful. Still other difficult issues may arise where matters are criminalised in some jurisdictions but not in others. For example, some countries may no longer criminalise drug taking in certain circumstances, or abortions carried out at certain times and by reference to certain criteria. In such cases the act the subject matter of the alleged offence in respect of which the issuing state exercises extraterritorial jurisdiction may have taken place wholly or in part within the requested state, but may not be unlawful by the law of that state. A further example might be the exercise of exercise territorial jurisdiction in respect of offences alleged to have occurred in a third country where the executing state does not itself purport to exercise extraterritorial jurisdiction in respect of such offences. The example of a request to surrender a head of state of a third country to face charges in relation to matters alleged to have occurred in that third country, is an obvious example of this category of case. Another area of extraterritoriality is where in more modern times, by international agreement, countries have agreed that in cases such as genocide, or certain sex trafficking offences, there can be trial in any country even though the acts alleged may have occurred in an entirely different jurisdiction. There may be still other examples. The 34 words of the second portion of s.44 (and the corresponding words in Article 4(7)(b)) must deal therefore with a large range of fact situations. It is a mistake therefore in my view, to fall into the trap of assuming that because s.44 and Article 4(7)(b) had been raised in this case and appear to apply to it, that the Section and Article were drafted with this type of situation in mind. Accordingly, it is in my view necessary to first seek to interpret the Section (and if necessary the Article) in general, and then to seek to apply that interpretation to the particular facts of this case.

24 The task of interpretation, whether general or specific, is however particularly difficult in this case. The language of s.44 of the Act of 2003 is somewhat opaque, and there is little by way of preparatory documents, or authoritative commentary, which can illuminate these provisions. It will also be some time before the Irish courts are permitted to make a preliminary reference to the Court of Justice of the European Union (“C.J.E.U.”). There is also a wide divergence between the interpretations urged by the parties in this case.

The Interpretation Advanced on behalf of the Minister for Justice, Equality and Law Reform

25 Given the difficulties posed by the Section, the simple interpretation first advanced by the Minister for Justice, Equality and Law Reform (“the Minister”) in the High Court has something to recommend it. It was said that the reference to “the State” meant Ireland, and that it was therefore clear that the Section dealt with offences committed in third countries i.e. other than in the State and accordingly could not be of application in this case where the offence was committed within the State. While the High Court judge did not accept this interpretation on the basis of s.44 of the Act of 2003 alone, he did consider that the conclusion was correct, when the Section was read in the light of the Framework Decision. That appeared to be because Article 4(7)(a) of the Framework Decision was seen to deal expressly with offences occurring within the executing state. It seemed to follow therefore that Article 4(7)(b) dealt with offences occurring outside the executing state. The apparent anomaly that this could mean that Ireland had selected a provision that appeared to be more protective of third countries in respect of whom extraterritorial jurisdiction was being exercised than it was of its own jurisdiction was explained, the High Court considered, by the fact that the other provisions of Article 4 of the Framework Decision which had been implemented, and including in particular s.42(c) of the Act of 2003 meant that there were sufficient protections in place in respect of offences occurring within Ireland. Section 42(c) provided that surrender would be refused if the Director of Public Prosecutions (“D.P.P.”) had decided not to prosecute. This it was said covered any offences occurring within the territory of Ireland. It was not therefore necessary to implement the provisions of Article 4(7)(a) in Irish law.

26 This interpretation cannot be lightly dismissed. In particular, even if Article 4(7)(b) of the Framework Decision is capable of a broader interpretation than that advanced by the State, that does not mean that it was so understood by the drafters, when s.44 was enacted. If s.44 of the Act of 2003 has a clear even if narrow meaning, then effect must be given to it since the obligation to give a conforming interpretation to the Section cannot result in the Section being interpreted contra legem. The Section, as interpreted by the State, is capable of a practical, if very limited, application. It would mean that Ireland would only surrender in respect of offences occurring in third countries when it too exercised jurisdiction in respect of those self-same offences. This would apply in cases where by international convention extraterritorial jurisdiction was conferred on all states in respect of offences wherever they occurred.

27 I have come to the conclusion however that this interpretation cannot be accepted. First, it is extremely restrictive of surrender, when the general thrust of the Framework Decision and the Act is to facilitate surrender on the basis of trust in the issuing State’s legal system. In that context there is little reason to believe that Ireland, or any other country, would be so offended by the exercise of extraterritorial jurisdiction in respect of third countries with which they might have no connection whatsoever, that they would wish to have a specific provision obliging the state to refuse surrender in such cases. It is striking that on this interpretation the Act, while showing considerable sensitivity for the sovereignty of third countries (which countries might themselves not have any objection to the exercise of extraterritorial jurisdiction in respect of offences occurring there), does not specifically address the exercise of extra-jurisdiction in whole or in part within the jurisdiction of Ireland.

28 In this regard it is not sufficient in my view to point to the provisions of s.42(c) of the Act of 2003. First, that Section deals with the question of prosecution rather than jurisdiction. Second, as pointed out in argument, it only relates to those offences in which the D.P.P. can make decisions in respect of prosecution. Third, it does not deal with offences which have not yet come to the D.P.P.’s notice. Fourth, it does not address at all the troublesome question of where the act alleged does not constitute an offence in Ireland and is not capable of being prosecuted in Ireland. The question of surrender of a person from Ireland to meet charges in such circumstances, is likely to be more rather than less sensitive, and the failure of the Act (on this interpretation advanced by the Minister), to deal with that situation would be extremely surprising. Finally, if it were accepted that it was not thought necessary in 2003, at least on this interpretation, to implement in Irish law the provisions of Article 4(7)(a) of the Framework Decision because of the existence of s.42(c) of the Act of 2003, it is more than curious that when Article 42(c) was removed only two years later, that no steps were taken to address the apparent anomaly that Ireland would, on this interpretation, more readily surrender persons to the extraterritorial jurisdiction of other member states, where the offence was committed in Ireland, rather than in any other place. Accordingly I cannot accept that the interpretation of the Section advanced on behalf of the Minister is correct.

The Appellant’s case on Section 44 of the European Arrest Warrant Act 2003 (as amended)

29 It should be said that much of the argument for the appellant was involved in defeating the interpretation advanced by the Minister, (largely successfully in my view) with the implication that the appellant’s interpretation would then be the only plausible, and possible interpretation. For reasons already addressed, I agree that the interpretation advanced on behalf of the Minister is flawed, but I cannot accept that it follows that the interpretation advanced by the appellant is correct.

30 It was argued by counsel on behalf of the appellant that the Section introduced the concept of reciprocity and therefore meant that in effect an executing state would not surrender the person, unless, if the situation were reversed, the executing state would exercise extraterritorial jurisdiction on the same basis. Here, although unusually, Ireland does exercise extraterritorial jurisdiction in cases of murder, the basis for such jurisdiction is the citizenship of the alleged perpetrator, and not as in the case of France, the citizenship of the victim. Accordingly, he said, if the situation was reversed, Ireland would not exercise jurisdiction in respect of the extraterritorial murder of an Irish citizen. Therefore, it was argued, s.44 of the Act of 2003 applied and Mr. Bailey could not be surrendered.

31 If s.44 of the Act of 2003 embodies the form of reciprocity contended for by the appellant, then it follows that the appeal succeeds. It is self-evident however, that neither the words of s.44, nor those of Article 4(7)(b) of the Framework Decision say this, at least in express terms. There is no explicit reference to reciprocity, or the basis for the exercise of extraterritorial jurisdiction (rather than the fact of its exercise), nor indeed to the concept of considering a hypothetical case by reversing the fact situation in the particular case. Indeed both s.44 and Article 4(7)(b) use the words “does not”, rather than a conditional phrase such as “would not” which would be more consistent if as urged by the appellant, a hypothetical exercise was necessary. In addition, s.44 refers to an act or omission not constituting an offence “by virtue of having been committed in a place other than the State”. Even in the hypothetical situation posited by counsel, of the murder of an Irish citizen in France, Ireland would not exercise jurisdiction, and accordingly the acts and omissions would not constitute an offence under Irish law, but that would not be by virtue of the acts having been committed in a place other than the State – it would be because the acts are not alleged to have been committed by an Irish citizen. Furthermore, for the appellant’s arguments to succeed it is necessary not just to reverse the fact situation, but to do so at a relatively high level of abstraction: in other words, it is not sufficient simply to ask if the same event (the murder of a citizen of France) occurred outside Ireland, whether Ireland could exercise extraterritorial jurisdiction. Instead it is necessary to formulate the offence in general terms as the murder of a citizen outside the territorial jurisdiction of the state, and the inquiry then becomes whether Ireland would exercise jurisdiction in such a case. Again, this approach does not appear on the surface of either s.44, or Article 4(7)(b).

32 Counsel sought to deal with these difficulties by advancing an ingenious argument. It was said that the reference to “the act or omission of which the offence consists” in s.44 of the Act of 2003, or even more clearly the reference to “same offence” in Article 4(7)(b) of the Framework Decision must be understood as importing the concept of reciprocity, and therefore the entirety of the jurisdictional basis asserted. If therefore, the “same offence” was understood as meaning in this case, “the extra- territorial murder of a citizen of the issuing state” in this case, and the jurisdictional basis was built into the definition of the offence, then it would be said both the Section and the Article made sense and required the executing state to consider whether it exercised extraterritorial jurisdiction in respect of the murder of its citizens. In this case, Ireland it was said, does not do so (at least on the basis of the citizenship of the victim) and therefore would not do so, if the situation were reversed. Accordingly both s.44 and Article 4(7)(b) applied, and surrender should be refused. However, in my view, that does not follow in this case.

Analysis
33 Since s.44 of the Act of 2003 is not clear it is appropriate to consider what assistance can be obtained from the provisions of Article 4(7)(b) of the Framework Decision as follows:

“Where the European arrest warrant relates to offences which:

…

(b) had 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.”

Again, on one view the presence of Article 4(7)(a) which clearly deals with offences occurring within the executing state, might suggest that Article 4(7)(b) deals with extraterritorial offences of jurisdiction in respect of third countries only. However I am persuaded that that is too crude an approach. First, the words of Article 4(7)(b) in their natural meaning are capable of applying to offences occurring within the executing state. Indeed, it is only the existence of Article 4(7)(a) which might lead to any other interpretation. Second, it does seem to me significant that the two clauses are part of subsection 7, and linked by the word “or”. This seems to recognise that they deal with the same, or at least related subject matter. In my view, it is at least logical that the exercise of extraterritorial jurisdiction with which a state would be most concerned is when it is exercised in respect of matters occurring within the executing state itself. Therefore in my view Article 4(7)(b) applies to the exercise of any extraterritorial jurisdiction by the issuing state, including the exercise of such jurisdiction in respect of the territory of the executing state. On this reading, executing states have three options in respect of offences alleged to have been committed in whole or in part on their territory of the executing state: surrender in all cases (if Article 4(7) is not implemented at all); surrender in no cases (if subsection (a) of Article 4(7) is implemented); and an intermediate provision which is provided by 4(7)(b).

34 It remains to consider however what that intermediate test is. It seems to me most productive to approach this difficult provision by seeking to interpret Article 4(7)(b) of the Framework Decision first, and then to consider if the Section in the Irish Act can be read compatibly with it. When faced with an unfamiliar and apparently impenetrable text, it is tempting to resort to familiar legal concepts such as in this case reciprocity. However in my view considerable caution must be exercised in this regard. It is easy to reason in apparently logical steps, that reciprocity naturally comprehends that if a situation was reversed, the executing state would do the same; that “doing the same”, implies an identity (rather than similarity) of jurisdiction, which self-evidently is not present here; that Ireland’s law on extraterritorial jurisdiction does not mirror that of France; that accordingly reciprocity is not present, and that therefore Mr. Bailey cannot be surrendered. However that reasoning occurs at some distance from the words of either the Article or the Section, and indeed is almost independent of them. It follows from the premise that the Section embodies reciprocity, rather than from the words of either the Article or the Section. But that begs, rather than answers the question, whether either the Section or the Article embody the concept of reciprocity.

35 In my view reference to the concepts of reciprocity in this context, and particularly as the starting point of the analysis, is not helpful, and indeed may be positively confusing. Reciprocity in extradition law is a well known concept and is found for example in Article 26 of the European Convention on Extradition (Paris, 13.XII. 1957 (“Convention of 1957”) and s.8 of the Extradition Act 1965 and comprehends the situation where, whatever the general law of surrender in a country, surrender may be refused specifically, to a country which itself would not surrender to the requesting state in the same circumstances. Thus if country A has a rule of non-surrender of its citizens then country B, which itself does not have that rule, but which had adopted a requirement of reciprocity, would not surrender its citizens to country A. It will surrender any non-citizen to country A and will surrender its citizens to all other countries which do not have a rule against the surrender of their own citizens. It is also perhaps noteworthy that where such reciprocity is provided for, it is provided for by clear language. Thus for example s.8(1) of the Extradition Act 1965 provides:

Similarly, in the Extradition Act 1965, (Part II) (No.1) Order 1966, it is provided by Article 2.7 that:

“Any party may apply reciprocity in respect of any offences excluded from the application of the convention under this Article.”

36 It is apparent that reciprocity, at least in the sense understood by Article 26 of the 1957 Convention, is not what is involved here. Neither s.44 nor Article 4(7)(b) of the Framework Decision makes any inquiry as to the circumstances in which the issuing state itself would surrender. On the contrary they ask something about the substantive law of the executing state. In this case for example no attention was directed either in argument or evidence to the question of whether France would surrender in similar or indeed identical circumstances, and correctly so. Whether France would surrender in such circumstances would depend on whether France had adopted any part of Article 4(7), and even then in what terms, but would have nothing to do with whether Ireland would surrender. Accordingly, the concept of reciprocity, as traditionally understood within the law of extradition, is not involved here. That should not be surprising. The purpose of the Framework Decision was to seek to harmonise the grounds for surrender and non-surrender between states and thus facilitate the process of enforcement in the criminal law of the member states. It certainly simplifies matters if the law of surrender in any given member state is the same for requests from all other member states. Whether that is necessarily always desirable is not a matter for this court.

37 Article 4(7)(b) can be read most intelligibly and simply, as giving a power to executing states to refuse to execute a European arrest warrant when two conditions are satisfied. The first condition (“where the warrant relates to an offence which has been committed outside the territory of the issuing state”) is a purely factual inquiry which can be answered by recourse to the warrant itself. The second (“the law of the executing state does not allow prosecution for the same offences when committed outside of its territory”) is an inquiry as to the law of the executing state, which ought to be capable of being answered readily by any person familiar with the criminal code within that jurisdiction. The two conditions are related. Extraterritorial jurisdiction must be being exercised as a matter of fact by the issuing state, and the second condition relates to the extraterritorial jurisdiction of the executing state, but unless some extended meaning is to be given to the words “same offences” there is in my view no requirement of reciprocity contained in the Article.

38 I agree that if the appellant’s argument is correct, and the words “same offences” can be read to mean both the substantive offence and the jurisdictional basis upon which it is tried in the issuing state, then it may be possible to give effect to Article 4(7)(b) to preclude surrender in this case. In other words, if the offence in issue is defined as the ‘extraterritorial killing of a French citizen’ or perhaps more correctly ‘the extraterritorial murder of a citizen of the issuing state’, then, (and acknowledging that there would still be a difficulty with the phrase “does not”), it would be possible to reach the conclusion that Article 4(7)(b) can be interpreted as urged on behalf of the appellant. However, I do not think it is possible to read the concept of “same offences” in this way.

39 First, the term “same offences” refers back to the introductory words of Article 4(7), “where the European Arrest Warrant relates to offences which …”. This plainly directs attention to the offence or offences in law to which the warrant relates. I think in its natural and primary meaning the word “offence” in this specific context would be readily understood to mean that offence contained in the list set out in Article 2.2 and specified in the particular warrant. In this case that is the offence of murder, and not the altogether more artificial concept of ‘extraterritorial murder of a citizen of the issuing State’. Second, the offence to which this European arrest warrant relates, is described in just this way: it is the offence marked in the list as that of “murder” and nothing more. Third, it appears that the French Code defines such murder as provided for by Articles 221-1 and 221-3 of the French Penal Code as specified in the warrant, and quite separately from the provisions of Article 113.7 of the Code which permit prosecution for offences generally (and therefore not just murder), occurring outside the territory of France the victims of which are French citizens. Accordingly it appears that French law considers the ‘offence’ here to be ‘murder’, and not ‘extraterritorial murder of a French citizen’. Fourth, while the warrant itself described the location of the murder as “Skull [sic] Ireland” and “a house in County Cork” it does not assert that this is outside France, as might be expected if this was an elements of the offence, and the citizenship of the victim is not referred to at all. Fifth, the statement of the appellant’s French lawyer, M. Tricaud, again refers to the offence as ‘murder’ and makes no reference to either the extraterritorial location of the offence, or indeed the citizenship of the victim. Sixth, to read the Article in the fashion contended for by the appellant would lead to what was at best a clumsy tautology. If the offence in this case is that of ‘murder of a citizen outside the territory of the issuing member state’, then Article 4(7)(b) as applied to this case would read “where the European arrest warrant relates to the offence of murder of a citizen outside the territory of the issuing Member State which has been committed outside the territory of the issuing Member State …”. Put in a slightly different way the very fact that the Article refers to ‘offences’ which have been committed outside the territory of the issuing state is inconsistent with extraterritorial location being a component of the definition of the offence.

40 The approach suggested by the appellant would, in my view, be also inconsistent with the thrust and object of the Framework Decision. The most distinctive feature of the Framework Decision is that in respect of a very large range of the most common offences which are listed in Article 2(2), double criminality is no longer required. Whatever, therefore, the French definition of murder and whether or not it corresponds either in law or in fact to the offence in Irish law, Ireland has agreed that it will surrender to France persons wanted for trial or indeed to serve sentences in respect of the French offence of murder. France, and every other country has made the same agreement in the case of Ireland. In other words, in respect of all those offences listed in Article 2(2) the precise components of the offence in the law of the requesting state are not meant to be the subject of investigation by the executing state still less a ground for non-surrender. It makes little sense therefore to introduce a requirement to debate and analyse the precise constituents of the offence in the law of the requesting state, only in the context of Article 4(7)(b).

41 This leads me to the conclusion that the natural understanding of the word “offence” or “same offences” is the correct one and in this case relates simply to murder. Approached in this way Article 4(7)(b) is perfectly capable of being read both intelligibly and consistently with the language of the Article, and its presumed intent. Thus, where adopted, it permits or requires an executing state to refuse surrender where the European arrest warrant relates to an offence of murder, committed outside the territory of the issuing member state (in this case France) where the law of the executing member state (in this case Ireland) does not allow prosecution for that offence when committed outside its territory. If the offence here was assault, then the Article 4(7)(b) exception would apply. Here however, Ireland does exercise extraterritorial jurisdiction for murder. That, in my view, is all the Article requires. In particular, it does not require analysis of the precise basis upon which Ireland or any other executing state may exercise extraterritorial jurisdiction for that offence. It is more consistent with the Framework Decision, to ask simply, whether in the case of murder (whatever its definition) Ireland exercises extraterritorial jurisdiction. We no longer ask how Ireland or the requesting state define the offence of murder: it is enough that they have such an offence. By the same token, it should not be necessary to ask the precise basis upon which Ireland exercises extraterritorial jurisdiction in cases of murder; it should be enough that it does.

42 This interpretation has the benefit that it is consistent with the use of the words “does not” both in Article 4(7)(b) and s.44. The simple question posed by both the Section in the Act and the Article in the Framework Decision, is, does Ireland allow prosecution for the offence of murder when committed outside its territory. Not only is this conclusion fatal to the interpretation advanced by the appellant, but it also leads to an interpretation of both the Section and Article which I consider is more compatible with both their text and the underlying purpose of the Framework Decision. Surrender of persons to other countries is a serious matter for an individual involving arrest, detention and on occasions forcible removable from the state. On occasion it can be a matter which generates great emotion, and considerable legal debate. However, in is essence it remains an essentially paper analysis. It is the execution of a warrant. If the warrant is in proper form, then unless one of the specific exceptions to surrender is established, the warrant is enforced. The purpose of the Framework Decision was to simplify and harmonise that process. This is the context in which s.44 is to be analysed. In a sense the entirety of the Act and the Framework Decision take effect within four corners of the text of a European arrest warrant presented to the executing judicial authority. Therefore, the “same offences” referred to in Article 4(7)(b) and “the offence” referred to in s.44, refer back to the offence, to which the European arrest warrant relates. That offence is by definition, one that has already passed through Article 2(2) or Article 2(4), since if it did not, the warrant could not be enforced at all. That offence is selected from Article 2.2, or is the offence in the law of the executing state found to correspond by Article 4.4 to the offence specified in the warrant issued by the issuing state. It is that offence, i.e. the offence either selected from Article 2(2) or found to correspond by reference to Article 2(4), which is the offence to which the warrant relates and is the subject of the inquiry posed by Article 4(7)(b) and s.44, rather than the specific facts alleged in any particular case to constitute that offence. Indeed, those facts may often only be set out in summary form in the warrant.

43 This interpretation is more compatible with the text of s.44, whereas by contrast the interpretation advanced by the appellant is concededly more difficult to reconcile with that Section. It cannot be said that act or omission of which the offence here consists (the killing of another person) does not constitute an offence under the law of the State, by virtue of having been committed in a place other than the State. If it does not constitute an offence under the law of the State, it is by virtue of the fact that it is not alleged to have been committed by an Irish citizen. Again, this permits a relatively straightforward interpretation of a difficult Section. The offence of murder if committed outside the jurisdiction of the state by an Irish citizen, does constitute an offence triable under the law of the state by virtue of s.9 of the Offences Against the Person Act 1861, as adapted, whereas, the offence of assault occurring outside the jurisdiction of the state, does not, and importantly it can be said that it does not do so by virtue of having been committed in a place other than the State. I realise that this is a narrow distinction, and that in some sense it can be said that extraterritoriality is generally prohibited and an exception made in the case of a murder alleged to have been committed by a citizen, and to that extent it might be said that the murder of an Irish citizen by a national of another state does not constitute an offence under the law of Ireland by reason of having been committed outside the jurisdiction of Ireland. Nevertheless, it is, I think, significant that a more precise reading of the Section in the Irish Act, is more compatible with the interpretation which I consider is itself more consistent with the provisions of Article 4(7)(b). The qualification contained in the subsection is deliberately narrow. It is not permissible to argue simply, that Ireland could not prosecute such an offence because for example it defines the offence differently. That would be to reintroduce a general principle of double criminality expelled by Article 2(2) and much diluted by Article 2(4). Instead, the sole permissible ground is if the matter is not capable of being treated as an offence by virtue of its extraterritorial location.

44 While there is a dearth of background material on Article 4(7)(b), what little there is points in my view towards the interpretation just advanced. The significant advance sought to be achieved by the Framework Decision was the agreement of a list of offences contained in Article 2(2) (conceived as harmonised offences but in truth deemed to be harmonised) and in respect of which precise double criminality would no longer be required. In relation to other offences, the test for correspondence now required by Article 2(4) would be more liberal. It would not be necessary to establish correspondence of the legal offences, but merely that the facts alleged would constitute an offence under the law of the executing state. The evident aim of the proposal was to simplify the process of surrender between member states. Since extradition is essentially a matter for agreement between sovereign states, the underlying principle is one of trust and confidence in the legal system of those states with which this State has chosen to enter an extradition agreement. The Framework Decision is predicated on a high level of trust and confidence in the systems of other member states, and it was logical therefore that the Framework Decision should seek to simplify the process of surrender. The removal of double criminality in the cases of Article 2(2) offences, and its dilution in the case of Article 2(4), was a very substantial step in that direction.

45 Extraterritoriality, however it appears, proved particular problems especially where the extraterritorial jurisdiction is being exercised by the issuing state, related to events occurring on the territory of the executing state and above all, where the matters alleged, might not have been regarded as offences by the law of the executing state. There is an interesting commentary contained in the European Commission “Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures between member States” COM (2001) 522 Final dated the dated the 25th of September 2001. Under the heading “Article 28 principle of territoriality” it provided as follows:-

“When a Member State exercises extraterritorial jurisdiction in relation to an offence which is not an offence under the law of the State in which execution is requested, the latter state will be able to refuse to execute the European arrest warrant. A state is considered to exercise extraterritorial jurisdiction when none of the components of the offence is located on its territory. Member States are generally required to provide mutual assistance and execute European arrest warrants issued by the judicial authorities of the other member states even where they exercised extraterritorial jurisdiction on the basis of their national law. However, the obligation does not apply in cases involving offences which do not constitute offences in the state in which execution is requested. This avoids a obliging a state to execute a European arrest warrant for an offence committed entirely on its territory but not classed as such by its own law. The criterion to be taken into account here, to consider the restoration of the principle of double criminal liability, will be the definition of the offence in the substantive criminal law rather than the question that the jurisdiction of the state in which execution is requested for an identical offence. In other words, the execution of the European arrest warrant could be refused if the issuing State exercised extraterritorial jurisdiction and if the offence justifying the exercise of this jurisdiction does not exist in the state in which execution is requested. The assessment of whether the offence provided for by the legislation of the executing member state must be done on a strict basis

and not include the question of jurisdiction in a similar case. Thus, if the offence exists in law but the courts of the executing State have no jurisdiction on the facts, the European arrest warrant must be executed

.”

(Emphasis added)

46 This text identifies a particular problem and suggests a logical response, namely the limited restoration of the principle of double criminality, but where the question was whether the offence existed in law, and not whether the executing state would have jurisdiction. Subsequent developments recorded in the note of the 4th December, 2001, showed that the French delegation had somewhat tentatively proposed a broad limitation to Article 2 itself, limiting the execution of European arrest warrants without verification of double criminality (i.e. those offences now listed in Article 2(2)) to offences committed wholly or partly in the territory of the issuing member states. This would have gone further than the Commission proposal and would have restored double criminality for all offences occurring outside the territory of the member state. The presidency recommended a different solution namely, that where the acts were committed wholly or partly in the territory of the executing state, surrender could be refused where the executing state undertook to conduct the prosecution or execute the sentence itself. It was also noted that the Netherlands supported by a number of countries including Ireland, had made a broader proposal, which was expressed to be based on Article 7 of the Convention of 1957 which was:-

“Where the European Arrest Warrant envisages offences which:

(1)are regarded by the law of the executing judicial authority as having being committed in whole or in part in the territory of the executing member state or in a place treated as the territory of that member state;

(2)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 the territory of the executing member state.”

47 This it will be noted is, with some small textual changes, the genesis of Article 4(7)(b). That proposal was described in the text as follows:

“Several delegations (NL/EL/IRL/L/DK/A and S) wanted to introduce additional grounds for optional law on execution, making it permissible to refuse to execute in a European Arrest Warrant issued for acts committed in whole or in part in the territory of the executing member state or committed outside the territory of the issuing member state, if the law of the executing member state does not allow prosecution of offences of the same type committed outside the territory of the executing member state.”

While this is not particularly clear, it certainly does not explicitly introduce any concept of reciprocity. Indeed in its reference to “offences of the same type” it seems to contemplate a general and broad question, rather than a specific inquiry as to whether if the facts of the particular case were reversed, the executing state would exercise jurisdiction.

48 It was noted in the proposal for what became Article 4(7)(b), that the text was modelled on Article 7(2) of the Convention of 1957. That provided as follows:

“When the offence for which extradition is requested has been committed outside the territory of the requesting Party, extradition may only be refused the law of the requested Party does not allow prosecution for the same category of offence when committed outside the latter Party’s territory or does not allow extradition for the offence concerned.”

Again, that text is not beyond doubt, but it does seem that the reference to “same category offences” or to the law not allowing “extradition for the offence concerned” are suggestive of a general inquiry rather than one related to the very specific facts of the particular case.

49 It is also notable that Article 7(2) of the Convention of 1957 does not include the concept of reciprocity. Article 26 permitted any contracting party to make a reservation, and Article 26(3) provided:

“A contracting party which has made a reservation in respect of the provision of the Convention may not claim application of the said provision by another party save insofar as it has itself accepted the provision.”

As has been pointed out, such a reservation could be entered in respect of Article 7. Where it applied therefore, a state which had not itself accepted the principle of permitting surrender to issuing states exercising similar extraterritorial jurisdiction to it, could not secure the surrender from an executing state which had accepted the principle, even though the provisions of Article 7(2) were satisfied. This is the true principle of reciprocity, and its express acknowledgement in Article 26 reinforces the conclusion that the principle is not present in Article 7(2) of the same Convention. If not present in Article 7(2) of the 1957 Convention it is difficult to understand how it can be said then to be part of Article 4(7)(b) of the Framework Decision expressly modelled on Article 7(2).

50 These are all considerations which point, albeit not definitively, towards the interpretation of Article 4(7)(b) as only requiring a consideration of the question whether the executing state, in this case Ireland, does exercise extraterritorial jurisdiction in respect of the offence in question, in this case murder. It does not appear to me that the United Kingdom materials referred to by Fennelly J., are more than equivocal. I do accept that Farrell and Hanrahan in their useful text: “The European Arrest Warrant in Ireland” (Clarus Press, 2011), seem to suggest that the court is obliged to consider whether extraterritorial jurisdiction will be exercised in theory in similar cases although they acknowledge that the matter is doubtful. However the conclusion to which those learned authors come to, is expressly predicated on what they described as “the underlying principle of reciprocity”. This in turn follows from the passage already quoted in the judgment of Fennelly J.:

“Such provisions are based on the principle of reciprocity which held that one State should not be required to extradite for an offence if it could not request extradition for the same offence where the roles was reversed. The principle is directed at ensuring that an almost perfect balance of mutual obligations as between States is maintained.”

This is where I would respectfully part company with the authors. First, the principle of reciprocity of surrender is not at all maintained in the Framework Decision. Second, the long-standing principle of reciprocity in extradition law was concerned with reciprocity of surrender, and not any question of jurisdiction. In the context of the Convention of 1957, for example, it was provided for by the terms of Article 26(3) rather than Article 7(2). Article 4(7)(b) in my view is concerned with a residual question of double criminality - residual because Article 2(2) significantly reduced that requirement in respect of most ordinary offences. In that regard, I would respectfully agreed with Lord Justice Scott Baker in the observations referred to by Fennelly J. at para. 78 of his judgment. Double criminality looks to the essence of the offence, rather than to the jurisdictional basis upon which it is tried. It might be said of course, that where there was such correspondence it would follow that if the circumstances were reversed, the issuing state would have to surrender to the executing state for the corresponding offence, but if so, that is merely a consequence of the existence of double criminality and not a part of the inquiry. In such a case, the executing state agrees to surrender not because the other state will in turn surrender to persons to it, but rather because the matters alleged would also be offences under the law of the executing state, and it had agreed itself to surrender persons who carried out acts which would if committed within its own territory, be offences under its law.

51 Perhaps the most decisive consideration in my view, is however that the interpretation suggested here is, I believe one which is most consistent with both the language context and presumed intention of the Framework Decision. I completely agree that the Article must be given a purposive interpretation. Furthermore I agree that the question is the purpose of Article 4(7)(b), and that is not answered by a general assertion as to the purpose of the Framework Decision as a whole. However, to understand the purpose of Article 4(7)(b) it is necessary to set out its context, which is the Framework Decision as a whole and to acknowledge that in this case, the thrust of that decision was to significantly increase cooperation on extradition matters, by removing technical objections to surrender where there was broad consensus as to the nature of many well known offences.

52 In this case, the issue lies between an interpretation which requires an identical jurisdiction in respect of extraterritorial offences, (which would make surrender more difficult), and an interpretation which considers only whether in respect of the class of offence with which the person is charged, the executing state itself exercises extraterritorial jurisdiction. In resolving this question the context and structure of the Framework Decision is helpful. In cases such as murder, it does not ask for perfect identity of legal definition or even, that the acts concerned themselves would constitute the offence of murder in the law of the executing state. The same approach would suggest that the Framework Decision is not concerned with a precise identity of jurisdiction, so long as the executing state itself exercises jurisdiction in respect of the offence in its law. For these reasons, I would dismiss the appellant’s appeal on this point.

Remaining Issues
53 For the reasons set out in the judgments already delivered by my colleagues, I fully agree that surrender must be refused under s.21A. I also agree that in the light of the Court’s disposition of these issues it is not necessary to hear further argument on the issue under s.37.

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