The European Arrest Warrant in the Prosecution of Extraterritorial Offences: the strange case of the Irish murder, the French victim and the English suspect

Surprising as it may seem, the European arrest warrant (EAW) can be used by one State to take over a domestic prosecution from another State, even though the crime, the accused, the victim and all the primary evidence were located in the latter State and the competent authorities of that State have already decided that there is no basis for prosecution. Focusing on the remarkable facts of the Bailey case, this article critically examines how that bizarre situation is facilitated by the EAW Framework Decision and Ireland’s implementing legislation. It finds that that the punitive criminal law enforcement demands of the EU’s area of freedom, security and justice are prioritised over the due process norms, human rights standards and internal checks and balances of domestic criminal process. The result is that the EAW can be used by prosecutors to expose the accused to a punitive, hybridised, criminal procedure lacking in normative coherence and democratic legitimacy. The article concludes that there is an urgent need to rethink the mutual responsibilities of Member States in the EAW regime.