ANALYSIS:EU law treats all legal systems equally – but if a case is closed in one country, does it remain open in another?
SINCE THE European Arrest Warrant (EAW) came into Irish law in 2003, it has largely operated under the radar of public opinion. The European arrest warrant Act was intended to remove the potential for delay in extradition procedures, replacing them with a “system of free movement of judicial decisions in criminal matters”.
This replaced the previous system whereby governments contacted each other about extradition. Under the EAW, the judicial authorities communicate with each other in order to implement judicial decisions. This is meant to cut out questions of political or diplomatic expedience, but also means that the system is founded on the assumption that the criminal justice systems of all EU member states, to which the EAW applies, operate to the same standard and offer the same guarantees of a fair trial.
For instance, a decision made in 1988 by then attorney general, John Murray, now the Chief Justice, to refuse the extradition of Fr Patrick Ryan to the UK to face explosives charges on the grounds that he would not receive a fair trial due to adverse pretrial publicity would be impossible since the EAW came into force.
The vast majority of EAW requests concern people who allegedly committed a crime in one country and, either before their trial or following conviction and before serving a sentence, fled to another.
The case of Ian Bailey is unusual in that the crime for which he is being sought was not committed in the requesting state.
According to section 44 of the 2003 Act, a person shall not be surrendered if the offence was committed “in a place other than the issuing state”. However, under its laws on extraterritorial jurisdiction, France claims the right to prosecute cases where the victim is French.
Mr Justice Michael Peart certified as an issue “of exceptional public importance” whether his decision to surrender Bailey to face the charge of murdering Sophie Toscan du Plantier was allowable under this section, in circumstances where the Director of Public Prosecutions had decided not to prosecute him.
The case raises the issue of the respect owed to the criminal justice process of each EU member state by the other member states, which lies at the heart of the EAW system. If a case is closed in one country, does it remain open in another if a citizen of that state in involved? It appears that in France it does. Mr Justice Peart’s ruling stated that the case could be reopened at any time in Ireland, but this appears unlikely given the numerous reviews the case has already had in the DPP’s office.
There is no doubt that in a Europe where there is free movement of goods and people there will be free movement of criminals, and measures must exist to ensure this does not mean immunity. But if we are to engage in free exchange with other criminal justice systems we must understand how they work and, more importantly, trust them.
As a recent report from the European Commission on the operation of the EAW commented, mutual trust is essential to its operation.