"Where all the evidence had been available to the Irish authorities"

The European Arrest Warrant is a mechanism which enables a member state of the European Union to request extradition of a person named in such a warrant from any other member state. It is currently in the news because of a development in the investigation in France of the death, 13 years ago, in Ireland of a French film-producer, Sophie Toscan du Plantier.

There are some circumstances in which extradition can be refused. One example is, according to page 14 of a guide still being offered on the website of the Irish Department of Justice :

6. Where a prosecution is still being considered in Ireland against the person for an offence or a decision has been taken to bring proceedings or not to bring proceedings in Ireland for an offence forming part of the offence specified in the European Arrest Warrant (S. 42).

The wording of section 42 of the 2003 Act is as follows

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,

(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.

Alas, the passages in bold are, in fact, no longer law.

Even though the document on the DOJ website notes at page 2 that the law was amended in 2005, it fails to fully reflect the changes to section 42.

In the words of then Minister for Justice, Brian Lenihan (for it was he), as he proposed the alteration to that section in the Senate

The essence of this amendment is to provide for the deletion of section 42(c) of the European Arrest Warrant Act

In fact, the new section - adopted to murmurs of approval by the Opposition - simply re-enacts s.42(a) and (b). Why does the 2005 Act not simply repeal s.42(c), instead of laboriously re-enacting (by its section 83) s.42 (a) and (b) of the 2003 Act ?

Moreover, if one consults the "Arrangement of Sections" of the 2005 Act, one will see several sections entitled "Amendment of Section ... of the 2003 Act" but s.83's title is "Proceedings in the State".

Indeed, a total of fifteen sections of the 2003 Act are amended by Part 8 of the 2005 one, and the changes are really significant. The Arrangement of Sections for Part 8, however, only refers to five amendments of the 2003 Act.

If I were very cynical, I might say that there was an organised attempt to confuse observers. I am not that cynical, not least because similar "messing" is evident throughout legislation in recent years, and even lawyers are being confused (though the more venal glorify in the work it creates for them).

It seems to me that enactment of a European Arrest Warrant (Amendment) Act would have been more straighforward.

And so, finally, to the point I started this post to make: the end result is a ridiculous one, in which an Irish resident is to be forced to fight an extradition request to face charges in France relating to a death which occurred in Ireland. The case has already been exhaustively, if inconclusively, investigated in Ireland, the Director of Public Prosecutions has declined to proceed, and the subject has been successful in related defamation proceedings. (See here for a short summary of the long saga.)

Mr Lenihan justified the removal of s42(c) by saying

The existing provision would be workable in a case where all the evidence had been known and available to the Irish authorities when the decision was taken not to bring proceedings or to enter a nolle prosequi. However, a number of circumstances can arise where this is not the case. As a result, an accused person would be able to evade justice in circumstances where there is no good reason, in principle, that he or she should not be surrendered. The most obvious case where this can arise is where there is no evidence available in this jurisdiction or insufficient evidence to warrant the case proceeding. In these circumstances, a decision may be made not to prosecute the person concerned. As currently worded, the paragraph could operate as a bar to a person’s extradition for the same offence to a jurisdiction which has the evidence to deal with that person.

We shall see in due course, but one would have to doubt that the French investigation of the du Plantier murder will have been able to come up with new evidence. Even if it did, it should be provided to the DPP who can re-consider his decision not to prosecute.

Update on Saturday, April 24, 2010 at 08:53AM by Fergus O'Rourke

The story proceeds: A man is arrested