They do things differently in France. Yesterday, in his closing speech to the Ian Bailey murder trial in the Cour d’Assises in Paris, prosecutor Jean Pierre Bonthoux had a cut at the Irish Director of Public Prosecutions’ office.
In assessing a case against Bailey, the DPP’s office did not look at the big picture and reviewed the Garda case on a “segmented basis”, M Bonthoux said. The French, in their inquisitorial system, do take the bigger picture into account.
The Irish common law system, which also operates in countries like the UK and US, isolates a crime and examines the facts associated with it. This is considered the best way to get as close as possible to finding out whether an individual is responsible for a particular crime.
For the French “big picture” read “contamination” in the Irish system and accordingly a heightened chance that an innocent person may be convicted. The failure of the DPP to prosecute Bailey was raised a number of times at this week’s trial. In each instance, it was with a sense of frustration.
Yet anybody who examined the DPP analysis of the evidence gathered against Bailey would have no problem understanding the decision. The DPP’s position was laid out in a judgment by Adrian Hardiman in the Supreme Court in 2012, rejecting an application to extradite Bailey to France.
“Mr Bailey has been very thoroughly investigated in Ireland in connection with the death of Madame du Plantier.
“He has been subjected to arrest and detention for the purpose of questioning… The fruits of the investigation have been considered not once, but several times by the DPP who has concluded and reiterated that there is no evidence to warrant a prosecution against him.”
The DPP’s office is not infallible. Nor is the official who compiled the analysis in 2001. Some might make the case — as was made by many attending the trial this week — that a decision on guilt or innocence should have been put in front of a jury to let it decide.
Grave dangers would have attached to such a development. If a case is prosecuted just to satisfy police, political or public pressure, irrespective of the quality of the evidence, justice is likely to run and hide.
Let’s say a banker was put on trial on flimsy evidence at the height of the economic crash. Would the jury have been contaminated by the prevailing public anger? Even within the constraints of the existing system, there have been miscarriages of justice.
The railroading of the Birmingham Six and the Guildford Four was directly related to public and political currents at the time. The case against Bailey, in terms of the alleged crime and context, is from a different planet to those wrongly convicted of bombings, but the principle remains the same.
As things stand, conviction rates for serious crime stand at over 90% so any argument that it’s too difficult to prosecute a suspect doesn’t hold water. What was obvious in the trial in the Palais de Justice this week is that the standard of proof required in the French system has a much lower threshold.
Some might say that’s no bad thing. Until perhaps, one finds oneself caught up in such a system and then all bets are off. The prosecutor M Bonthoux also questioned the decision of the Supreme Court to reject the European arrest warrant for Bailey.
“The Irish Supreme Court thought the warrant was not valid in their law,” the prosecutor told the trial.
He went on to point out to the judges at the murder trial that a guilty verdict could be the basis for a fresh mandate for extradition.
“I want to see Ian Bailey making a defence and to condemn him face to face,” M Bonthoux said.
That raises another disturbing aspect to this week’s trial. Following the guilty verdict there will inevitably be, once more, an attempt to extradite Bailey. This time the application will have the ballast of a murder conviction.
If Bailey were to be extradited he would then be subjected to another murder trial so he could present a defence. This second murder trial would be decided by three judges — as per this week’s trial — but also a jury of six.
What if that trial were to find Bailey not guilty? Would he then be freed or would he have the verdict in absentia hanging over him? In terms of due process it’s not only confusing but troubling. One might posit the theory that this week’s conviction was merely a tool to use in the next attempt to extradite him.
There was a positive aspect to the trial in the Cour d’Assises. The victim’s family were front and centre of the whole process with full representation and effectively taking the role of a parallel prosecutor. Sophie Toscan du Plantier’s spirit was present in the room as her life was unspooled in some detail and her closest relatives all made statements to the court.
The Irish process does not allow for that kind of direct legal representation for victims or bereaved families, and with good reason. However, the victim and their bereaved family have practically no voice whatsoever. More needs to be done to find a way to recognise their plight.