The Supreme Court is set to spend three days considering the Ian Bailey extradition case, starting on Monday.  In addition, the Court will deliver its reasons for judgment in DPP v. McCabe, and continue the hearing in Viridian Power (see here). And Friday will see an administrative cattle-call in criminal cases. ([UPDATE: During the week, the Court added A v. Refugee Appeals Commissioner to its calendar for hearing on Friday). But Bailey is, of course, the big event.

The Bailey case is well known to more or less anyone in Ireland, but some of my extraterritorial readers won't know it. French authorities want to prosecute Bailey for the infamous murder of Sophie Toscan du Plantier. She was murdered in 1996 in west Cork. The Gardaí investigated the crime, and interviewed Bailey as a suspect, but ultimately concluded that there was insufficient evidence to prosecute him. French law, however, allows a prosecution in French courts for the murder of a French citizen committed outside France. Bailey still lives in Cork—indeed, he's now a law graduate of UCC—and France has requested his extradition under the European Arrest Warrant Act, 2003.

In the High Court, Peart J. granted the extradition order, but also granted Bailey leave to appeal. (Under 2009 amendments to the European Arrest Warrant Act, there's no automatic right to appeal a High Court surrender order. An appeal is allowed “if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”)

There are several issues in the case, and most of the press attention focuses on allegations of Garda misconduct. But, legally speaking, the most significant point is the probably the "extraterritoriality" argument. Certainly, it's remarkable for Bailey to be extradited to France to face a trial for a murder committed in Ireland. If an Irish person were murdered in France by a non-Irish citizen, the murderer could not be prosecuted in Ireland. This point has a certain degree of rhetorical force, but the question is whether it has any relevance under the European Arrest Warrant Act. The main aim of the European Arrest Warrant system is to make extradition within Europe easy--as Julian Assange is finding, to his cost. European countries are supposed now to trust one another's criminal justice systems and to cut them plenty of slack. Once the issuing state makes a request for a person in Ireland, Ireland must surrender the person unless one of a small number of exceptions applies.

Bailey's best hope for avoiding extradition, it seems to me, is  section 44 of the 2003 Act. Here's the full text of that section:

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.

Frankly, I am not confident how we ought to make sense of section 44. The section, like many Irish statutory provisions, is pregnant with ambiguity. But I will at least try to break it down (let me know if I have gone wrong somewhere here). There are two conditions before this bar on surrender applies:

1. The offence in question "is alleged to have been committed in a place other than the issuing state."

2. "[T]he 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.”

This first condition is plainly met in Bailey’s case; the issuing state is France and the allegation is that Bailey committed an offence outside France.

The second condition is the tricky part. What does it mean? First of all, “the State” here means Ireland. So the question is whether “the act or omission of which the offence consists does not, by virtue of having been committed in a place other than [Ireland], constitute an offence under the law of [Ireland].” One possible interpretation is that section 44 only applies when the offence was committed in a place other than Ireland.  (This interpretation gains support from the words “does not“). If that’s correct, section 44 wouldn’t help Bailey: it would only assist people alleged to have committed an offence committed in a “third country” — neither Ireland nor the issuing state. And that is the interpretation the High Court adopted. (At least I think it is — I have found the High Court’s judgment heavy going.)

But that is something of an odd result. To put the point loosely: if that’s right, Ireland will refuse extradition under section 44 only where there’s a potential challenge to the sovereignty of another country, not when there’s a challenge to Irish territorial sovereignty. There is another possible reading (supported by the Framework Directive, on which the Act is based).  Maybe the courts are required under section 44 to ask a hypothetical question: would the offence in question, if committed in a place other than Ireland, constitute an offence under Irish law? We might call this the subjunctive interpretation. The question would be whether “the act or omission of which the offence consists [would not], [if it were committed] in a place other than [Ireland], constitute an offence under the law of [Ireland]“. This might help Bailey: if an Irish citizen were murdered by a non-Irish citizen outside Irish territory, that would not constitute an offence under Irish law. There are many potential roadblocks on the way to this conclusion, but this, I think, is Bailey’s best hope of avoiding being sent to France.

We may hope that the Supreme Court will produce a convincing answer to these questions, but it may take some time.