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Ian Bailey case: Our civil liberties threatened

  • 29-04-2010 11:59am
    #1
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭


    I am surprised this hasnt been mentioned on this forum yet but a European Arrest Warrant has been issued by France for Ian Bailey for the killing of Sophie Toscan du Plantier.
    This should worry us all for the following reasons:
    1- The DPP has already considered the evidence and determined that a prosecution is not justified. If the extradition goes ahead then Mr. Bailey will be facing a new consideration of the same evidence. This breaches double jeopardy which is one of the cornerstones of civil liberties in this part of the world.
    2- If the extradition goes ahead then a suspect for a crime committed in Ireland will be investigated without the protections of common law, which again are a cornerstone of civil liberties in this part of the world.

    So next time you are about to put in a bonecrunching tackle on a frenchman in a game of footie in the park think very carefully. Will he go back to france and claim he was assaulted and seek your extradition to be investigated under the French legal system.
    Those of us who argued against the European Arrest Warrant did so as we saw it as a back door to undercutting civil liberties. We were met with the usual spindoctoring, "facts", ridicule and argumentum ad hominem.

    The Lisbon Treaty also comes into play as the ECJ becomes competent to rule on the correct interpretation of EU law in justice and home affairs(under Nice this would have been an intergovernmental affair). Thus failure to extradite could be challenged in the ECJ.
    Opponents of Lisbon like myself argued that making justice and home affairs supranational was dangerous but again we were met with the usual spindoctoring, "facts", ridicule and argumentum ad hominem.


    http://www.rte.ie/news/2010/0428/duplantiers.html


«1345

Comments

  • #2
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    1- The DPP has already considered the evidence and determined that a prosecution is not justified. If the extradition goes ahead then Mr. Bailey will be facing a new consideration of the same evidence. This breaches double jeopardy which is one of the cornerstones of civil liberties in this part of the world.

    Double jeopardy doesn't apply based on the DPP's consideration. Double jeopardy applies to having being tried and acquitted or convicted.

    As such it doesn't breach anything.


  • #3
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    So next time you are about to put in a bonecrunching tackle on a frenchman in a game of footie in the park think very carefully. Will he go back to france and claim he was assaulted and seek your extradition to be investigated under the French legal system.
    Those of us who argued against the European Arrest Warrant did so as we saw it as a back door to undercutting civil liberties. We were met with the usual spindoctoring, "facts", ridicule and argumentum ad hominem.

    As opposed to reductio ad absurdum? :rolleyes:


  • #4
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    prinz wrote: »
    Double jeopardy doesn't apply based on the DPP's consideration. Double jeopardy applies to having being tried and acquitted or convicted.

    As such it doesn't breach anything.

    This issue arose in the attempted prosecutions related to the stephen lawrence killing in the UK. Double jeopardy does apply once the DPP has considered the evidence. If new evidence emerges the DPP can change his mind but in the abscence of new evidence a decision not to prosecute is irreversible.


  • #5
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    prinz wrote: »
    As opposed to reductio ad absurdum? :rolleyes:

    If bailey is extradited then the absurd scenario becomes reality as any crime against a french citizen can be subject of an EAW.


  • #6
    Scofflaw
    Registered Users Posts: 23,283 ✭✭✭✭Scofflaw


    prinz wrote: »
    Double jeopardy doesn't apply based on the DPP's consideration. Double jeopardy applies to having being tried and acquitted or convicted.

    As such it doesn't breach anything.

    Nor did Lisbon have anything to do with the European Arrest Warrant - and despite its catchy name, it remains simply a streamlined form of extradition rather than some new and bizarre assault on our civil liberties.

    By the way, there is/was a thread on this already, but which has been closed because the case is still before the courts.

    cordially,
    Scofflaw


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  • #7
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    Scofflaw wrote: »
    Nor did Lisbon have anything to do with the European Arrest Warrant - and despite its catchy name, it remains simply a streamlined form of extradition rather than some new and bizarre assault on our civil liberties.

    By the way, there is/was a thread on this already, but which has been closed because the case is still before the courts.

    cordially,
    Scofflaw

    Lisbon gives the ECJ the competence to rule on the correct application of the EAW. If the ECJ says he must be sent to France and we dont cough him up we could face sanction. It threatens our civil liberties for the reasons in the opening post.

    P.S. Due to the case being before the courts i will be extra careful not to comment on the merits of the case itself but only on the implications for all of us if the extradition goes ahead.


  • #8
    Scofflaw
    Registered Users Posts: 23,283 ✭✭✭✭Scofflaw


    BetterLisbon wrote: »
    Lisbon gives the ECJ the competence to rule on the correct application of the EAW. If the ECJ says he must be sent to France and we dont cough him up we could face sanction. It threatens our civil liberties for the reasons in the opening post.

    P.S. Due to the case being before the courts i will be extra careful not to comment on the merits of the case itself but only on the implications for all of us if the extradition goes ahead.

    Perhaps, then, you will demonstrate for us how "Lisbon gives the ECJ the competence to rule on the correct application of the EAW", with reference to the relevant parts of the Treaty. For the sake of clarity, can we use the article numbering as per this site, please?

    cordially,
    Scofflaw


  • #9
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    This issue arose in the attempted prosecutions related to the stephen lawrence killing in the UK. Double jeopardy does apply once the DPP has considered the evidence. If new evidence emerges the DPP can change his mind but in the abscence of new evidence a decision not to prosecute is irreversible.

    Any link to back this up? In the Lawrence case IIRC the CPS had already initiated proceedings against some of the suspects then changed their mind, i.e. charges were brought, then later dropped. That is different to deciding not to bring charges at all.
    BetterLisbon wrote: »
    If bailey is extradited then the absurd scenario becomes reality as any crime against a french citizen can be subject of an EAW.

    Yes, this claim is absurd, simply because not every crime comes under the remit of the EAW.


  • #10
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    Scofflaw wrote: »
    Perhaps, then, you will demonstrate for us how "Lisbon gives the ECJ the competence to rule on the correct application of the EAW", with reference to the relevant parts of the Treaty. For the sake of clarity, can we use the article numbering as per this site, please?

    cordially,
    Scofflaw

    Pillar collapse. The old 3 pillar system is gone. The ECJ is competent unless specifically stated in the treaties (Article 19-TEU). Exclusions exist in the case of foreign and defence policy. Under Nice the ECJ was only competent in respect of the European Community or 1st pillar.
    I am not aware of any specific exclusion in respect of the EAW. Please point it out and i shall yield to the better man.


  • #11
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    prinz wrote: »
    Any link to back this up? In the Lawrence case IIRC the CPS had already initiated proceedings against some of the suspects then changed their mind, i.e. charges were brought, then later dropped. That is different to deciding not to bring charges at all.



    Yes, this claim is absurd, simply because not every crime comes under the remit of the EAW.

    That wasnt the point i was making. Under double jeopardy the prosecution only has one bite at the cherry. If at any stage a prosecution fails it has failed forever. Thus if the DPP/CPS decide not to prosecute that decision is irreversible unless a new file of evidence can be presented for consideration.
    Lots of crimes come under the EAW. In my example you could be accused of assault causing GBH if you ended his career. Under EAW you can be prosecuted under reduced protections.


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  • #12
    View
    Registered Users Posts: 3,872 ✭✭✭View


    A quotation from the Charter of Fundamental Rights might be appropriate here:
    Article 50
    Right not to be tried or punished twice in criminal proceedings for the same criminal offence

    No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.

    In other words, thanks to the decision of the electorate to approve the Lisbon Treaty (and associated Charter of Fundamental Rights), an accused person has explicit protection against the possibility of double jeopardy through the mis-use of the European Arrest Warrant.

    It should also be pointed out that had the electorate listened to the siren songs of the No to Lisbon campaigners, an accused person would have no such explicit protection.


  • #13
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    View wrote: »
    A quotation from the Charter of Fundamental Rights might be appropriate here:



    In other words, thanks to the decision of the electorate to approve the Lisbon Treaty (and associated Charter of Fundamental Rights), an accused person has explicit protection against the possibility of double jeopardy through the mis-use of the European Arrest Warrant.

    It should also be pointed out that had the electorate listened to the siren songs of the No to Lisbon campaigners, an accused person would have no such explicit protection.

    Sorry nice try view but article 50 only applies where a case has gone to trial. Plus the ECHR already provides such protections. Plus the COFR was already being used pre-Lisbon. Plus the nuclear option of the state reneging on the EAW is gone with Lisbon.


  • #14
    View
    Registered Users Posts: 3,872 ✭✭✭View


    BetterLisbon wrote: »
    Sorry nice try view but article 50 only applies where a case has gone to trial.

    Or to rephrase that - you are admitting your original claim is bogus as double jeopardy doesn't apply in the case of Mr. Bailey since he has not been tried.

    Hence, your claims about our civil liberties being threatened are without foundation.


  • #15
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    Thus if the DPP/CPS decide not to prosecute that decision is irreversible unless a new file of evidence can be presented for consideration..

    Wrong. The Supreme Court of this country has upheld the right of the DPP to review a decision even in the absence of new evidence as long as fair procedures relevant to the individual cases are applied.


  • #16
    Scofflaw
    Registered Users Posts: 23,283 ✭✭✭✭Scofflaw


    BetterLisbon wrote: »
    Pillar collapse. The old 3 pillar system is gone. The ECJ is competent unless specifically stated in the treaties (Article 19-TEU). Exclusions exist in the case of foreign and defence policy. Under Nice the ECJ was only competent in respect of the European Community or 1st pillar.
    I am not aware of any specific exclusion in respect of the EAW. Please point it out and i shall yield to the better man.

    The ECJ has the right to rule on the Treaties, and insofar as the EAW is established pursuant to the Treaties, it has the right to rule on the validity of the EAW as a Treaty mechanism, and on the national laws giving effect to the EAW are correct transpositions of the Framework Decision. Both of those capacities were established before Lisbon (see the judgement in 2007 for example).

    It does not have any right to rule on the applicability of the EAW in any specific case, nor to change the list of crimes to which the EAW applies.

    Therefore, if all you meant was the former, I don't see the problem - but of what you meant was something along the lines of the latter, you'll need to show how you believe that happens - "pillar collapse" is pretty meaningless.

    regards,
    Scofflaw


  • #17
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    View wrote: »
    Or to rephrase that - you are admitting your original claim is bogus as double jeopardy doesn't apply in the case of Mr. Bailey since he has not been tried.

    Hence, your claims about our civil liberties being threatened are without foundation.

    Double jeopardy also applies to the entire proceedings of a prosecution. The DPP has considered the evidence and decided no prosecution. To reopen that decision by allowing a French prosecutor to consider the same evidence breaches double jeopardy.


  • #18
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    prinz wrote: »
    Wrong. The Supreme Court of this country has upheld the right of the DPP to review a decision even in the absence of new evidence as long as fair procedures relevant to the individual cases are applied.

    If that is true then the supreme court has pierced double jeopardy which should worry us all.


  • #19
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    Scofflaw wrote: »
    The ECJ has the right to rule on the Treaties, and insofar as the EAW is established pursuant to the Treaties, it has the right to rule on the validity of the EAW as a Treaty mechanism, and on the national laws giving effect to the EAW are correct transpositions of the Framework Decision. Both of those capacities were established before Lisbon (see the judgement in 2007 for example).

    It does not have any right to rule on the applicability of the EAW in any specific case, nor to change the list of crimes to which the EAW applies.

    Therefore, if all you meant was the former, I don't see the problem - but of what you meant was something along the lines of the latter, you'll need to show how you believe that happens - "pillar collapse" is pretty meaningless.

    regards,
    Scofflaw

    I will have to read that judgment in full. From the summary it seems the ECJ ruled that the council had the right to make the directive and the directive did not violate the ECHR or article 6 TEU. It didnt seem to review Belgiums transposition of the directive. Again i will need time to read in full.


  • #20
    Scofflaw
    Registered Users Posts: 23,283 ✭✭✭✭Scofflaw


    BetterLisbon wrote: »
    Double jeopardy also applies to the entire proceedings of a prosecution. The DPP has considered the evidence and decided no prosecution. To reopen that decision by allowing a French prosecutor to consider the same evidence breaches double jeopardy.

    Since the DPP can reconsider such decisions, I don't think they have the force you attribute to them.

    regards,
    Scofflaw


  • #21
    marco_polo
    Moderators, Science, Health & Environment Moderators Posts: 10,076 Mod ✭✭✭✭marco_polo


    BetterLisbon wrote: »
    Double jeopardy also applies to the entire proceedings of a prosecution. The DPP has considered the evidence and decided no prosecution. To reopen that decision by allowing a French prosecutor to consider the same evidence breaches double jeopardy.

    Not in the definition that 99.9% of the world uses. It is generaly held to apply only to final judgments in a court of law.

    Feel free to point us towards the definition that you have.


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  • #22
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    Scofflaw wrote: »
    Since the DPP can reconsider such decisions, I don't think they have the force you attribute to them.

    regards,
    Scofflaw

    That supreme court ruling is a very bad one imo. The DPP should not be able to reconsider without new evidence.


  • #23
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    marco_polo wrote: »
    Not in the definition that 99.9% of the world uses. It is generaly held to apply only to final judgments in a court of law.

    Feel free to point us towards the definition that you have.

    To me double jeopardy means the prosecutors have one shot at me. If they fail they cant replay until they suceed. If the file of evidence against me is deemed too weak that should be case closed without new evidence (i.e. a new case file).


  • #24
    View
    Registered Users Posts: 3,872 ✭✭✭View


    BetterLisbon wrote: »
    To me double jeopardy means the prosecutors have one shot at me. If they fail they cant replay until they suceed. If the file of evidence against me is deemed too weak that should be case closed without new evidence (i.e. a new case file).

    To point out the obvious - it doesn't matter what you believe double jeopardy should be, what matters is what the courts believe it is.

    It is the courts, not you, that have been charged with interpreting the laws, so it is their decisions that count.


  • #25
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    Double jeopardy also applies to the entire proceedings of a prosecution.

    It doesn't.
    BetterLisbon wrote: »
    The DPP has considered the evidence and decided no prosecution. To reopen that decision by allowing a French prosecutor to consider the same evidence breaches double jeopardy.

    It doesn't. The Irish Supreme Court has made itself clear on the ability of the DPP to reconsider a decision not to prosecute.
    BetterLisbon wrote: »
    If that is true then the supreme court has pierced double jeopardy which should worry us all.

    No it hasn't. Double jeopardy as has been pointed out repeatedly does not apply to the DPP's decision. It applys where charges are brought. If the DPP decides not to prosecute then later changes his mind, this doesn't affect double jeopardy.
    BetterLisbon wrote: »
    That supreme court ruling is a very bad one imo. The DPP should not be able to reconsider without new evidence.

    So what are your legal credentials? :confused: Do you accept that the Supreme Court has made rulings in this area? You seem to have gone from 'the DPP cannot reconsider'... to 'the DPP should not be able to reconsider', so are you accepting your issue is without any legal basis as the law stands? The DPP can reconsider, without breaching double jeopardy.
    BetterLisbon wrote: »
    To me double jeopardy means the prosecutors have one shot at me. If they fail they cant replay until they suceed. If the file of evidence against me is deemed too weak that should be case closed without new evidence (i.e. a new case file).

    Important words in bold. Double jeopardy does not apply re the DPP's opinion whether or not to proceed as has been shown. The DPP's office is perfectly within its rights to decide one way, review the case, then decide the other way. If you have a problem with that, fair enough, but your legal argument that it infringes double jeopardy holds no water, legally.


  • #26
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    prinz wrote: »
    It doesn't.
    It doesn't. The Irish Supreme Court has made itself clear on the ability of the DPP to reconsider a decision not to prosecute.

    No it hasn't. Double jeopardy as has been pointed out repeatedly does not apply to the DPP's decision. It applys where charges are brought. If the DPP decides not to prosecute then later changes his mind, this doesn't affect double jeopardy.

    So what are your legal credentials? :confused: Do you accept that the Supreme Court has made rulings in this area? You seem to have gone from 'the DPP cannot reconsider'... to 'the DPP should not be able to reconsider', so are you accepting your issue is without any legal basis as the law stands? The DPP can reconsider, without breaching double jeopardy.

    Important words in bold. Double jeopardy does not apply re the DPP's opinion whether or not to proceed as has been shown. The DPP's office is perfectly within its rights to decide one way, review the case, then decide the other way. If you have a problem with that, fair enough, but your legal argument that it infringes double jeopardy holds no water, legally.

    I was not aware of that SC ruling. But the fact that that question made it to the SC shows that the DPP reconsidering was at least considered controversial.
    So i will concede that the legal letter of double jeopardy may not be breached but the principle that once a suspect is out of jeopardy he cannot be put back in jeopardy has been breached. The DPP had 13 years to prosecute and has not done so, to allow a french magistrate to do so now is farcical.


  • #27
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    So i will concede that the legal letter of double jeopardy may not be breached but the principle that once a suspect is out of jeopardy he cannot be put back in jeopardy has been breached..

    :confused: Ye what now? Either it has or it hasn't. In this case it hasn't.

    FYI the case you would be most interested in would be the Eviston case, Supreme Court Ruling. SC upheld the DPP's judicial independence and the ability of the DPP to review a decision on whether or not to proceed with a prosecution.


  • #28
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    prinz wrote: »
    :confused: Ye what now? Either it has or it hasn't. In this case it hasn't.

    FYI the case you would be most interested in would be the Eviston case, Supreme Court Ruling. SC upheld the DPP's judicial independence and the ability of the DPP to review a decision on whether or not to proceed with a prosecution.

    Well DJ is not a constituional right in Ireland so the SC ruling is a bad result of it not being a constituional right. However the principle of the prosecution having one bite at the cherry is breached.
    Waiting 13 years before allowing a judge in another country to reconsider the case file is preposterous.


  • #29
    prinz
    Registered Users Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    However the principle of the prosecution having one bite at the cherry is breached.

    You can't breach a legal principle that doesn't exist. Give it up.


  • #30
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    prinz wrote: »
    You can't breach a legal principle that doesn't exist. Give it up.

    I conceded that the supreme court has not shared my view of DJ. But i am prepared to stand over my view that the spirit of DJ is that the prosecution only has one bite at the cherry. Once again in this jurisdiction the highest court of appeal has not shared this view.


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  • #31
    old_aussie
    Registered Users Posts: 3,410 ✭✭✭old_aussie


    One to nil, no don't like the results

    Best out of three, no don't like the results.

    Best out of five, no don't like the results.

    Best out of seven, no don't like the results.

    Best out of nine..........

    What a far-ken joke the EU is!


This discussion has been closed.
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