Many questions left unanswered

Gardaí and other state agencies have come under fire following the ruling, writes Michael Clifford

IAN BAILEY walked free from the Supreme Court trailing serious questions for a number of arms of the State.

The Englishman won his battle to prevent his extradition to France. But the case has again brought to the fore questions that just won’t go away.

Mr Bailey has always maintained his innocence of the murder of Sophie Toscan du Plantier. He claims he was unfairly fingered by the cops. As far as he’s concerned, they were out to frame him for the murder from early on.

Whatever about that claim, there is certainly a pattern of behaviour by various arms of the State which suggest scant regard for his basic civil rights.

Somebody decided early on that Ian Bailey had done it. The gardaí were under serious pressure. A young woman had been brutally murdered in a quiet corner of West Cork.

Sophie Toscan du Plantier was a French citizen, a 39-year-old mother-of-one, well connected to the French establishment. She was a regular visitor to her holiday home outside Schull. It was Dec 1996, a time more innocent, when violent death was a rare and shocking feature of life beyond the cities.

Such killings tended to be solved within hours or days. The killer was usually connected to the victim and easily identifiable. More often than not, little evidence was required beyond the inevitable confession.

Not this time. There were no immediate suspects, and the nationality and status of the victim piled on pressure for an early result. Time and again in cases where gardaí have been found to have got things wrong, the problem can usually be traced back to the early stages of an investigation, when somebody decides that a particular individual is the guilty party. Thereafter, the investigative focus is on finding enough evidence to bring a prosecution against the suspect. All other suspects are largely ignored. The logical path — gathering the evidence and deducing from it whom the suspect might be — is turned on its head.

Once Mr Bailey was fingered for the murder, the emphasis was on finding the evidence. One crucial witness was Maria Farrell, a shop owner in Schull. She claimed she had seen Mr Bailey in the vicinity of Ms du Plantier’s home on the night the murder was committed.

The suspect was arrested twice and denied anything to do with the killing. He then told the media that he was the main suspect in the case. Cue a media frenzy that invited the wider public to believe that Mr Bailey was the man and all that was missing was the evidence.

The DPP didn’t think so. After examining the file, the office concluded that there was no evidence to prosecute him.

A document, which only emerged late last year, was compiled by an official in the DPP’s office in 2001. It was a devastating critique of the Garda investigation, and recommended no prosecution.

A whole section of the report was dedicated to Ms Farrell’s evidence, which concluded that it was unreliable.

Garda hierarchy disputed the report and a superintendent was dispatched to re-interview a number of the witnesses. That exercise concluded that the witnesses were reliable.

Another document which came to light at the same time detailed an attempt by a garda to urge a local state solicitor to exercise political pressure for a prosecution.

The case that was being made against Mr Bailey was summed up by Mr Justice Adrian Hardiman in his judgment yesterday.

“Mr Bailey has been very thoroughly investigated in Ireland in connection with the death of Madame du Plantier. There was certainly, as will be seen, no lack of enthusiasm to prosecute him if the facts suggested that there was evidence against him.

“He has been subjected to arrest and detention for the purpose of questioning. He has voluntarily provided, at the request of the gardaí, forensic samples which have failed to yield incriminating evidence. The fruit 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.”

Yet, from early on, Mr Bailey continued to live under a cloud. The court of public opinion had made up its mind. The suspect’s character was put forward in this brutal and unthinking forum as evidence for the prosecution.

He was an eccentric figure, who bored some with public readings of his poetry, and horrified others with deranged attempts to play the bodhrán.

Then, in 2001, he was arrested at Cork Airport attempting to leave the country. It later emerged that he had given a savage beating to his partner Jules Thomas and was fleeing from the consequences. He was convicted of assault.

The episode served to further reinforce the perception that Mr Bailey was a violent man who had got away with murder. Yet there was precious little evidence to that effect.

In 2003, he took a libel action against seven newspapers which had, he claimed, labelled him a murderer. Tellingly, the action was taken in the circuit court where a judge would decide. A High Court action could potentially have reaped much larger damages, but would have been decided by a jury, drawn from the court of public opinion.

The hearing took on the character of a murder trial.

A series of witnesses provided flimsy circumstantial evidence linking Mr Bailey to the murder. Maria Farrell testified that she saw him on the night in question. Huge emphasis was placed on her evidence, but in the round, the case against Mr Bailey for a criminal prosecution looked as weak as ever.

Apart from that, what emerged from the hearing was evidence of the extent of the beatings he had administered to his partner, and the detail was shocking in the extreme.

He won two of the seven actions, a pyrrhic victory by any standard. The publicity around the hearing prompted the DPP to look again at the case, and return the same verdict: no evidence; no prosecution.

Three years later, Ms Farrell retracted her evidence. She approached Mr Bailey’s solicitor and claimed she had made her initial statement after being subjected to undue pressure from the gardaí. Despite having admitted to lying under oath in the libel action, she has never been prosecuted for perjury.

Over in France, a different dynamic was at play.

The victim’s political connections, and a strong belief that Irish incompetence and its criminal justice system were letting a killer go free, prompted an independent investigation. The French have a law under which domestic authorities can be instructed to investigate the death abroad of a French national.

That process led ultimately to the request to extradite Mr Bailey. The Attorney General’s office agreed to the application. Crucially, no decision was, or since has, been made to put Mr Bailey on trial in France for the murder. It is unclear the exact nature of any legal advice received by the AG as to whether the request should be granted.

In any event, Mr Bailey contested the extradition. Last year, the High Court ruled he must be extradited.

The authorities then agreed to a request for French police to come to this jurisdiction and investigate the crime. Their arrival last October at Cork Airport was recorded by the media in glowing terms.

Little comment was made on the sight of a foreign police force being accommodated to investigate a crime in this jurisdiction, which the gardaí had already investigated, and the independent DPP’s office had deemed unworthy of prosecution. The subliminal inference was that the French weren’t happy with the criminal justice system in this country and wanted to apply their own standards and methods to secure a prosecution. Would the French have tolerated the gardaí arriving in Paris to investigate the death of an Irishwoman?

The 10-year-old document from the DPP’s office only came to the attention of Mr Bailey’s lawyers late last year as a Supreme Court appeal of the decision was about to get under way. Yesterday’s unanimous judgment from the court brings to an end that process.

Questions arise for the gardaí. How did they get it so wrong, and how did they continue to get it so wrong? Why was the DPP assessment of the initial investigation not uncovered until, literally, the last minute in the extradition case?

Why did the authorities bend over backwards to facilitate the French investigation, showing scant regard for the rights of a man resident here for over 20 years? Why was the media so easily swayed to the notion that Mr Bailey was a guilty man skipping free on a technicality?

These questions will, in all likelihood, go unanswered. Some might see the case meriting a public inquiry, but that won’t happen. The case, however, should serve to heighten vigilance among state agencies and the media about the dangers of consensus.

For Mr Bailey himself, the ordeal is not yet over. The European Arrest warrant is still live. If he were to visit his elderly mother in England, he would be in danger of arrest and, possibly, extradition to France.

He is pursing a civil action against the gardaí and the State. The Garda Ombudsman Commission has initiated its own probe into the whole case. It ain’t over by a long shot.

The du Plantier family are understandably disappointed. They want justice for their murdered loved one, closure for themselves.

Their quest is noble, but it doesn’t justify the hounding of a man repeatedly found to have no case to answer.


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