James Hamilton said he made that decision after reading the Garda investigation file and after taking advice from Robert Sheehan, the official in charge of that file, and two senior counsels to the effect that there was insufficient evidence to prosecute the journalist.
He was giving evidence on the 35th day of the civil action by Mr Bailey against the Garda Commissioner and State over the conduct of the investigation into the murder of Ms Toscan du Plantier, whose body was found near Toormore, Schull, on December 23, 1996. The defendants deny all of Mr Bailey’s claims, including wrongful arrest and conspiracy.
In evidence, Mr Hamilton said he took over as DPP in 1999 after his predecessor, Eamonn Barnes, retired. Mr Barnes had given some preliminary decisions on the du Plantier file but had not signed off fully on it, he said.
It was not normal for a DPP to read all files, as about 2,000 come into the office annually, but he read the du Plantier file as the case was very high profile and the subject of intense public interest and concern.
Having decided not to prosecute, he asked Mr Sheehan to inform the gardaí of that decision and the reasons for it. Gardaí had not questioned his decision but came back on later occasions with some additional evidence.
A decision not to prosecute is not always final, as it is always possible new evidence might come to light, but no new evidence came to light of sufficient quality to change the position, said Mr Hamilton. He also told the Attorney General’s office of the position and felt this was about the time of Mr Bailey’s libel actions, heard in 2003.
After receiving an email from Mr Barnes in June 2011 concerning a 1998 incident involving the State Solicitor for West Cork, Malachy Boohig, Mr Hamilton said he contacted the Attorney General the same day. The jury has heard that Mr Barnes’ email stated that Mr Boohig had reported to Mr Barnes that he was asked by a senior garda to ask the Minister for Justice to get the DPP to prosecute Mr Bailey.
Mr Hamilton said the Attorney General had a discussion with him and asked for his opinion and he gave his reasons to her.
In cross-examination, Luán O Braonáin SC, for the State, suggested the decision for the DPP to make was whether there was evidence available on which a jury, properly instructed, could reasonably bring in a verdict of guilty.
Mr Hamilton said that the decision for the DPP was whether there was enough evidence to allow the matter to go to the jury for a decision, not whether there was enough to secure a conviction. “An investigator can act on suspicion but the DPP has to act on evidence,” he said.
Later, during brief cross-examination by Mr Ó Bráonáin, Mr Sheehan agreed he made a memo on March 9, 1998, following a phone conversation with Mr Boohig which stated that Mr Boohig had said he was approached by Assistant Commissioner Martin McQuinn, on the basis of having attended the same college as the then Minister for Justice John O’Donoghue, to ask Mr O’Donoghue to get the DPP to prosecute Mr Bailey.
In evidence, David Fennell, principal officer in the Mutual Assistance and Extradition Division of the Department of Justice, said the Department acted in 2008 upon a request from the French authorities for judicial assistance concerning the du Plantier murder. The request was received in 2006 but was “parked” because the McAndrew investigation into aspects of the du Plantier probe was underway.
The French had sought the Garda investigation file but did not ask for the DPP’s file. The District Court granted the French request after hearing evidence from a Detective Garda and the McAndrew inquiry, he said.
A French forensic team came to West Cork and French police informally questioned witnesses, while gardaí travelled to France to meet the relevant magistrate. There was also an application to the District Court concerning the medical records of Jules Thomas, Mr Bailey’s partner, and records relating to Mr Bailey.
French authorities’ interest in Bailey ‘has never ceased’
The French authorities’ interest in Ian Bailey over the Sophie Toscan du Plantier murder the “never ceased”, despite our Supreme Court finding he should not be extradited, his solicitor told the High Court yesterday.
As recently as May, Justice Minister Frances Fitzgerald was asked by the French for help in their investigation, it was stated in a letter from the minister’s office to Frank Buttimer, solicitor for Mr Bailey.
The letter said that while such requests from foreign governments are normally dealt with confidentially, the “exceptional circumstances” of this case meant there would have to be further consideration of the request.
Mr Buttimer said the French continued to seek co-operation throughout 2012 — despite the turning down that same year by the Supreme Court of their extradition request — and into 2014.
Mr Buttimer said that, in early 2012, the Supreme Court found Mr Bailey should not be extradited because he had not been prosecuted in France and there was no reciprocity between French and Irish law.
Around the same time, the Chief State Solicitor’s office had been asked for copies of material, including writings and drawings by Mr Bailey, which had been seized by gardaí during their investigations, he said.
“Throughout this, the French interest has never ceased. We have since found out that interest commenced in 1997,” he said.
Earlier, Mr Buttimer said Mr Bailey was “distraught” when he was arrested by five gardaí at his home late one Friday night in April 2010, for the purpose of seeking his extradition.
Mr Buttimer said he was dismayed by this unnotified move by the Irish authorities, with whom the solicitor had been a regular contact, whereby he had established there would be no prosecution here of Mr Bailey.
A man was taken into custody at the request of “a foreign agency coming into this country”, where these matters had been dealt with through our legal process, and as far as Mr Bailey was concerned were concluded, said Mr Buttimer.