Emerging Voices: Examining the Applicability of the Passive Personality Principle when Conducting a Trial in Absentia

[Caleb H Wheeler is a lecturer in law at Middlesex University London and his first book, The Right To Be Present At Trial In International Criminal Law was published by Brill in 2018.]

French filmmaker Sophie Toscan du Plantier was discovered beaten to death outside her holiday let in the village of Schull, Ireland on 23 December 1996. Suspicion soon fell on Ian Bailey, a man living nearby. Following an investigation, the Irish Director of Public Prosecutions decided that there was not enough evidence to prosecute Mr. Bailey. Not satisfied with this outcome, the French government initiated its own investigation into the murder based on the passive personality theory of jurisdiction. Two years of investigation resulted in the French government issuing a European Arrest Warrant for Mr. Bailey, beginning the process of having him extradited to France so he could stand trial for Ms. Toscan du Plantier’s murder. His extradition was initially approved by the Irish High Court but later overturned by the Supreme Court. A second attempt to extradite him, this time for voluntary homicide, was rejected in 2017 on the grounds that the Supreme Court had already ruled on the issue. Stymied in their attempts to exercise personal control over Mr. Bailey, the French government decided that the trial against him would proceed in absentia. On 31 May 2019, Mr. Bailey was convicted in his absence in the Paris cour d’assises for the murder of Ms. Toscan du Plantier and sentenced to 25 years in prison. 

Mr. Bailey’s conviction was only possible because of France’s use of the passive personality theory of jurisdiction and its willingness to conduct trials in absentia. Amongst the most controversial forms of jurisdiction, passive personality jurisdiction permits a state to try alleged perpetrators for crimes that occur outside of the territory of the prosecuting state but where the victim is a citizen of the state undertaking the prosecution. Not all states recognise this form of jurisdiction and those that do generally limit its application to acts of terrorism or the assassination of a state’s diplomatic representatives. In contrast, the French Penal Code takes an unusually broad approach to passive personality jurisdiction. Article 113-7 explicitly extends the applicability of French criminal law to felonies and misdemeanours punishable by imprisonment committed outside of French territory when the victim is a French national at the time the offence takes place.

Applying passive personality jurisdiction under these circumstances does not serve any clear criminal law purpose. It is highly unlikely that prosecuting Mr. Bailey will produce either a specific or general deterrent effect. Because jurisdiction is exercised on the basis of the nationality of the victim, one would only be deterred from the crime if he or she was aware of the intended victim’s nationality before committing the crime and that the victim came from one of the limited number of states that applied passive personality jurisdiction. The effectiveness of deterrence is dubious under normal circumstances; under conditions such as these it is almost impossible to imagine that the prospect of being tried in this way would inhibit a person’s behaviour.

Article 113-7’s unique approach to passive personality jurisdiction further strains the effectiveness of deterrence by eschewing the dual criminality principle. French courts are authorised to exercise jurisdiction if the laws of France are broken, regardless of whether the crime alleged is also a crime in the territory of the state in which the actions actually occurred. When strictly applied, this could create a situation in which a person may be required to stand trial for actions that were not criminal in the place in which the acts were committed, entirely as a result of the fact that those acts are crimes in the nation of which the victim is a citizen. This connection is so tenuous as to make it very difficult to see how the application of Article 113-7 could deter anyone from anything. While this is not an issue in the present case, murder is criminalised in both Ireland and France, it further highlights the disconnect between passive personality jurisdiction and deterrence.

It is also not apparent whether Mr. Bailey’s conviction will serve any retributive purpose as he was tried in absentia. For retributive theory to work it typically requires that the person convicted of a crime be punished for his or her criminal acts. However, people convicted in absentia generally escape the punishment imposed following a trial in absentia. An absent perpetrator cannot be punished because he or she is not under the control of the court at the time punishment is imposed. An individual convicted in absentia, but who later comes under the control of the court, will generally not be required to serve the sentence imposed during the in absentia trial. Instead, he or she will likely be granted a new trial, which, if it ends in conviction, will also result in a new sentence.

French law mandates that should Mr. Bailey come under the control of the French courts prior to the expiration of his sentence the judgment against him will be annulled and he will be entitled to a new trial. The European Court of Human Rights is more equivocal on this issue. It requires that an accused tried in absentia be given the opportunity to seek a new trial unless he or she: has notice of the proceedings and waives his or her right to appear or when the accused is intentionally absent in an attempt to evade justice. With respect to Mr. Bailey, it is clear that he had de facto notice of the charges against him, which the European Court of Human Rights has indicated is sufficient under certain circumstances to imply waiver of the right to be present. Those circumstances include when an accused speaks publicly about the charges against him or her, or when the evidence shows that the accused has actual knowledge of the charges against them. Mr. Bailey spoke publically about the French investigation and trial before it began, even acknowledging that he would not attend and that he was likely to be convicted. These statements demonstrate notice adequate to meet the standards set out by the European Court. Mr. Bailey’s public statements would also likely function as a waiver of the right to be present. The Council of Europe has indicated that waivers can be either explicit or tacit, but the European Court of Human Rights reinforces that they must always be unequivocal. As indicated above, public statements by the accused that they do not intend to appear from trial have been identified by the European Court of Human Rights as an action considered sufficiently unequivocal to demonstrate waiver. Here, Mr. Bailey made clear that he knew the trial was going to take place but that he would not appear because he believed the outcome to be pre-determined. That position was further reiterated by his lawyer after his conviction, when he called the proceedings before the cour d’assises a ‘show trial’.

This raises the question of whether a refusal to appear made in the belief that the trial will be inherently unfair should be considered a waiver of the right to be present. It could be argued that a person who refuses to appear for trial when he or she believes that the outcome is pre-determined is not waiving his or her right to be present. Instead, he or she could be seen as protecting himself or herself from arbitrary detention. However, if this argument were accepted it could lead to any accused that believes in his or her innocence to simply refuse to appear for trial regardless of the strength of the evidence. They could then await the outcome of the first trial, during which they are absent, to determine if they wish to engage with the process and force the court to hold a new trial. This would create a tremendous burden on the courts, as it would result in a marked increase in matters being tried more than once. Further, it is not for the individual litigants to decide whether the trial will be fair before it even takes place. The human rights regime in Europe is set up to address allegations about fairness after the trial concludes, not before it has even begun.

The decision by the cour d’assises to proceed in absentia is probably best seen as an effort by the French government to successfully have Mr. Bailey extradited into its custody. The Irish courts denied two previous extradition requests. However, in both earlier instances the French government was seeking the extradition of someone accused of a crime rather than someone convicted of a crime. Now that Mr. Bailey stands convicted, France likely hopes that any future extradition attempts will be more successful. However, the Irish European Arrest Warrant Act 2003 contains grounds to once again refuse the French request on the basis that the Irish Director of Public Prosecutions decided not to bring proceedings against Mr. Bailey for the offence for which his extradition is now being sought.

In the end, it is hard to discern any real purpose of France’s decision to exercise passive personality jurisdiction over Mr. Bailey so that it might try him in absentia. Although Mr. Bailey now stands convicted of murder, there is no reason to believe that he will actually be extradited and imprisoned in France. It is also almost certain that even if he is extradited he will be granted a new trial, obliterating any retributive effect of his original conviction. This means the trial was little more than a symbolic act, an exercise of French authority allowing it to demonstrate that it could try Mr. Bailey regardless of whether it should hold the trial.