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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


«13

Comments

  • #2
    prinz
    Registered Users, Registered Users 2 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, Registered Users 2 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, Registered Users 2 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, Registered Users 2 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, Registered Users 2 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, Registered Users 2 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, Registered Users 2 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, Registered Users 2 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: 10,087 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, Registered Users 2 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, Registered Users 2 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, Registered Users 2 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, Registered Users 2 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!


  • #32
    prinz
    Registered Users, Registered Users 2 Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    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..

    That's your view. So complain all you want about it, but it is irrelevant in the case from the OP as nothing has been breached in law.


  • #33
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    BetterLisbon wrote: »
    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

    Opening post in full. Where did i say the law was breached. I stated double jeopardy (the principle if not the legal letter) is being breached by allowing a french magistrate to reconsider the file of evidence.
    On the basis of the supreme court ruling you referred to it looks like it is legal, but again that wasnt my point.


  • #34
    BlitzKrieg
    Registered Users, Registered Users 2 Posts: 14,698 ✭✭✭✭BlitzKrieg


    where in the op did you state you were talking about the principal and not the law?


  • #35
    View
    Registered Users Posts: 3,872 ✭✭✭View


    BetterLisbon wrote: »
    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.

    I'm open to correction on this but I don't believe the fact there was a court case about this proves it was "considered controversial". To the best of my knowledge, most, if not all legal questions can be tested against the provisions of the constitution in the Supreme Court - whether it is worth doing so (in a particular case) is, of course, another question...
    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.

    No such principle exists in Irish law to the best of my knowledge. Or, at least, not along the lines that you outline.

    You can't breech an non-existent principle...
    BetterLisbon wrote: »
    The DPP had 13 years to prosecute and has not done so, to allow a french magistrate to do so now is farcical.

    In your opinion perhaps. Most other people don't seem to have a problem with this.

    Mr Bailey, meanwhile, is free to mount legal challenges to the proceedings if he so chooses. Who knows perhaps the ECJ or ECHR will rule in his favour?


  • #36
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    View wrote: »
    I'm open to correction on this but I don't believe the fact there was a court case about this proves it was "considered controversial". To the best of my knowledge, most, if not all legal questions can be tested against the provisions of the constitution in the Supreme Court - whether it is worth doing so (in a particular case) is, of course, another question...

    No such principle exists in Irish law to the best of my knowledge. Or, at least, not along the lines that you outline.

    You can't breech an non-existent principle...

    In your opinion perhaps. Most other people don't seem to have a problem with this.

    Mr Bailey, meanwhile, is free to mount legal challenges to the proceedings if he so chooses. Who knows perhaps the ECJ or ECHR will rule in his favour?

    The fact that the SC was willing to hear the appeal shows the argument was credible.
    Again i concede the SC did not share my view of DJ but the principle (ethical rather than legal in this case) of DJ has been breached. This violates civil liberties in my view.


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  • #37
    Scofflaw
    Registered Users, Registered Users 2 Posts: 23,283 ✭✭✭✭Scofflaw


    BetterLisbon wrote: »
    The fact that the SC was willing to hear the appeal shows the argument was credible.
    Again i concede the SC did not share my view of DJ but the principle (ethical rather than legal in this case) of DJ has been breached. This violates civil liberties in my view.

    All of which is to say that your argument about double jeopardy has been shown to be meaningless anywhere other than in your head, but that that's quite sufficient for you - you won't abandon it, and you will be trotting it out again as if it had some kind of objective meaning.

    That seems to be the spring that keeps euroscepticism running.

    regards,
    Scofflaw


  • #38
    prinz
    Registered Users, Registered Users 2 Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    Again i concede the SC did not share my view of DJ but the principle (ethical rather than legal in this case) of DJ has been breached. This violates civil liberties in my view.

    It cannot violate a civil liberty :confused: DJ doesn't apply to DPP considerations as the Supreme Court has considered, the ethical principle has been considered by the most learned judges in the land. They decided the DPP reconsidering opinions to prosecute is not against the spirit of double jeopardy, either in spirt, in ethic or in law.


  • #39
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    Scofflaw wrote: »
    All of which is to say that your argument about double jeopardy has been shown to be meaningless anywhere other than in your head, but that that's quite sufficient for you - you won't abandon it, and you will be trotting it out again as if it had some kind of objective meaning.

    That seems to be the spring that keeps euroscepticism running.

    regards,
    Scofflaw

    Au contraire. Civil liberties are by definition subjective. One mans "civil liberties" are another mans "obstacle to fighting crime".


  • #40
    prinz
    Registered Users, Registered Users 2 Posts: 14,598 ✭✭✭✭prinz


    BetterLisbon wrote: »
    Au contraire. Civil liberties are by definition subjective. One mans "civil liberties" are another mans "obstacle to fighting crime".

    Is it my civil liberty not to be prosecuted for a crime at all if I don't want to be?


  • #41
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    prinz wrote: »
    Is it my civil liberty not to be prosecuted for a crime at all if I don't want to be?

    Stop strawmanning and address the point. How many freedoms are you prepared to take from everybody to get a few more people (who may even be innocent) in jail. This is the civil liberties question.


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  • #42
    Scofflaw
    Registered Users, Registered Users 2 Posts: 23,283 ✭✭✭✭Scofflaw


    BetterLisbon wrote: »
    Stop strawmanning and address the point. How many freedoms are you prepared to take from everybody to get a few more people (who may even be innocent) in jail. This is the civil liberties question.

    A reductio ad absurdum isn't a straw man (you should probably learn the terminology before using it). The point prinz is making is valid if, as you claim, civil liberties are subjective, because you have allowed for the claim that it's a "civil liberty not to be prosecuted for a crime at all", if someone believes that - subjectively - to be the case. Whether you or I would agree that that should be a civil liberty is irrelevant, if civil liberties are subjectively determined.

    regards,
    Scofflaw


  • #43
    P. Breathnach
    Registered Users, Registered Users 2 Posts: 12,089 ✭✭✭✭P. Breathnach


    BetterLisbon wrote: »
    ... 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...

    This claim is a cornerstone of BetterLisbon's case. It touches on a matter that bothers me: that consideration of a case by the DPP is accorded some special status even though that consideration is made in private and without the input of advocates, and that evidence considered by the DPP is not tested as it would be in a judicial procedure. If a decision by the DPP not to prosecure is regarded as the legal equivalent of a court finding somebody not guilty, then we will have abandoned many common-law and constitutional principles.


  • #44
    Scofflaw
    Registered Users, Registered Users 2 Posts: 23,283 ✭✭✭✭Scofflaw


    P. Breathnach wrote: »
    This claim is a cornerstone of BetterLisbon's case. It touches on a matter that bothers me: that consideration of a case by the DPP is accorded some special status even though that consideration is made in private and without the input of advocates, and that evidence considered by the DPP is not tested as it would be in a judicial procedure. If a decision by the DPP not to prosecure is regarded as the legal equivalent of a court finding somebody not guilty, then we will have abandoned many common-law and constitutional principles.

    Indeed - allowing a single appointed public official to decide innocence in camera would be an appalling precedent. It fails to surprise me, however, that a eurosceptic in full hue and cry about the unaccountability of allowing foreign courts access to Irish citizens should completely fail to notice such an issue - after all, the DPP is Irish, and that outweighs any other consideration in the eyes of the eurosceptic, time after time.

    cordially,
    Scofflaw


  • #45
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    P. Breathnach wrote: »
    This claim is a cornerstone of BetterLisbon's case. It touches on a matter that bothers me: that consideration of a case by the DPP is accorded some special status even though that consideration is made in private and without the input of advocates, and that evidence considered by the DPP is not tested as it would be in a judicial procedure. If a decision by the DPP not to prosecure is regarded as the legal equivalent of a court finding somebody not guilty, then we will have abandoned many common-law and constitutional principles.

    If the evidence does not merit prosecution today how can it merit prosecution tomorrow if its the same evidence subject to the same criteria of scrutiny. A reversal of a decision not to prosecute smacks of external pressure being put on the DPP and that is why in my opinion reconsideration should not be allowed.


  • #46
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    Scofflaw wrote: »
    Indeed - allowing a single appointed public official to decide innocence in camera would be an appalling precedent. It fails to surprise me, however, that a eurosceptic in full hue and cry about the unaccountability of allowing foreign courts access to Irish citizens should completely fail to notice such an issue - after all, the DPP is Irish, and that outweighs any other consideration in the eyes of the eurosceptic, time after time.

    cordially,
    Scofflaw

    The DPP does not decide innocence, nor does anybody in a common law legal framework. Guilt is determined solely by a jury (or in the SCC by judges which horrifies me btw.).
    What the DPP does is determine whether the evidence is strong enough to merit a full trial of that evidence. A decision to prosecute does not in any way imply guilt nor does a decision not to prosecute in any way imply innocence.


  • #47
    P. Breathnach
    Registered Users, Registered Users 2 Posts: 12,089 ✭✭✭✭P. Breathnach


    BetterLisbon wrote: »
    If the evidence does not merit prosecution today how can it merit prosecution tomorrow if its the same evidence subject to the same criteria of scrutiny. ...

    The answer is that I don't know. The thinking of the DPP is unknown to anybody except the DPP. I see that as a problem.


  • #48
    bonkey
    Registered Users, Registered Users 2 Posts: 15,443 ✭✭✭✭bonkey


    BetterLisbon wrote: »
    If the evidence does not merit prosecution today how can it merit prosecution tomorrow if its the same evidence subject to the same criteria of scrutiny.

    I can think of several situations off the top of my head, none of which are unreasonable.
    A reversal of a decision not to prosecute smacks of external pressure being put on the DPP and that is why in my opinion reconsideration should not be allowed.

    It smacks of nothing but reconsideration. The reasons why they may reconsider are myriad, and by no means are they all unreasonable.


  • #49
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    bonkey wrote: »
    I can think of several situations off the top of my head, none of which are unreasonable.



    It smacks of nothing but reconsideration. The reasons why they may reconsider are myriad, and by no means are they all unreasonable.

    Ok bonk give me your top 3 reasons that you consider reasonable. I am intrigued especially as you come from a non-common law country.


  • #50
    bonkey
    Registered Users, Registered Users 2 Posts: 15,443 ✭✭✭✭bonkey


    BetterLisbon wrote: »
    Ok bonk give me your top 3 reasons that you consider reasonable.

    I'll give you my top two categories of reasons. THere are any number of examples one could concoct within those.

    1) Human error. A review of the evidence is made. A decision is communicated. Someone notices subsequently that between these two points, an incorrect decision was made. The error is corrected. Note that in this category, I am allowing equally that the DPP could change their recommendation from "don't prosecute" to "prosecute" or vice versa.

    2) The DPP begin a review. Having begun the review, they discover that new investigations have begun, the findings of which could be relevant. They recommend not prosecuting as there are newly-ongoing investigations. The new investigations fail to turn up new evidence. Thus, even though the evidence for the case remains the same, the decision needs to be reviewed.

    The point is, as has been pointed out repeatedly, is that the DPPs decision is effectively a decision on whether or not to begin the process that can only be held once.

    If we argue that the DPPs decision is part of that process, then all we are doing is redrawing that line, without explaining why it needs to be redrawn.
    What about the decision to put a case to the DPP? Why not make that part of double-jeopardy too?
    What about the decision to investigate? Why not make that part?

    Why is one part of the decision-making process part of double-jeopardy, and not another? Ultimately, no matter which way you argue it, you still have to draw a line somewhere...a line that can only be crossed once. Although you disagree with it, there is no ambiguity about where that line is drawn in law. The act of prosecution can be carried out once. The decision on whether or not to commence with that act can be carried out as often as you like.
    I am intrigued especially as you come from a non-common law country.
    What gives you that idea? My domicile? Weren't you regaling us previously about how you have lived abroad?


  • #51
    BetterLisbon
    Closed Accounts Posts: 391 ✭✭BetterLisbon


    bonkey wrote: »
    I'll give you my top two categories of reasons. THere are any number of examples one could concoct within those.

    1) Human error. A review of the evidence is made. A decision is communicated. Someone notices subsequently that between these two points, an incorrect decision was made. The error is corrected. Note that in this category, I am allowing equally that the DPP could change their recommendation from "don't prosecute" to "prosecute" or vice versa.

    2) The DPP begin a review. Having begun the review, they discover that new investigations have begun, the findings of which could be relevant. They recommend not prosecuting as there are newly-ongoing investigations. The new investigations fail to turn up new evidence. Thus, even though the evidence for the case remains the same, the decision needs to be reviewed.

    The point is, as has been pointed out repeatedly, is that the DPPs decision is effectively a decision on whether or not to begin the process that can only be held once.

    If we argue that the DPPs decision is part of that process, then all we are doing is redrawing that line, without explaining why it needs to be redrawn.
    What about the decision to put a case to the DPP? Why not make that part of double-jeopardy too?
    What about the decision to investigate? Why not make that part?

    Why is one part of the decision-making process part of double-jeopardy, and not another? Ultimately, no matter which way you argue it, you still have to draw a line somewhere...a line that can only be crossed once. Although you disagree with it, there is no ambiguity about where that line is drawn in law. The act of prosecution can be carried out once. The decision on whether or not to commence with that act can be carried out as often as you like.


    What gives you that idea? My domicile? Weren't you regaling us previously about how you have lived abroad?

    The former i reject. Human error is built into everything. To allow reviews on that basis would open a pandoras box. Do we put the evidence to the jury again due to "human error" etc.
    In the latter case it is acceptable to review due to new evidence emerging. something i dont have a problem with as the decision will be based on a new book of evidence. The prospect of new evidence emerging should cause the DPP to defer a decision.

    Your avatar says you are from switzerland and you showed superb knowledge of the swiss bilateral treaties so forgive me i assumed you were swiss or resident there.
    I did live abroad but in the USA & Australia which are both common law countries. We could do very well to model our justice system on the american one in terms of fair trials and investigations (not on "fair" punishments though).


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