The conviction in France of Ian Bailey for the murder of Sophie Toscan du Plantier raises “profound concerns” of a miscarriage of justice, a leading legal authority says. Dermot Walsh said the French verdict is the latest twist in “the most bizarre and unprecedented case” in the history of Irish criminal law.
The academic, co-director of research at Kent Law School, said the case raises serious concerns about the implementation of the European arrest warrant and the role of the Government in facilitating the French trial of a murder in Ireland.
Mr Walsh said that, after the brutal murder of the French citizen in Schull, Co Cork, in December 1996, the gardaí “very quickly settled on Ian Bailey as their prime suspect”.
He said a critical feature of the French trial was that it was based essentially on the evidence gathered by the Garda investigation — even though the DPP had considered the evidence on several occasions and each time decided there was insufficient credible evidence.
“Most unusually, the DPP at the time subsequently described the Garda investigation as ‘thoroughly flawed and prejudiced’ against Bailey,” said Mr Walsh.
He said French authorities pursued its own prosecution as under French law the murder of a French citizen anywhere in the world can be prosecuted in a French court irrespective of the nationality of the accused.
Using EU mutual assistance agreements they requested the Garda investigation file.
Mr Walsh said:
Incredibly, this was granted by the Irish Department of Justice, even though it clearly concerned a domestic Irish crime which was still under active investigation by the gardaí.
"Contrary to the Irish DPP’s assessment of the evidence in the Garda file, a French examining magistrate concluded that it disclosed sufficient evidence to warrant charging Bailey with the murder.”
He said a vital point to consider is the differences between the French and Irish investigative processes — with investigations essentially the exclusive preserve of the police in Ireland but under the direct supervision of a public prosecutor in France.
“The problem in the Bailey case is that the police file was compiled under the loosely regulated Irish investigation and then transplanted unfiltered into the French prosecution and trial process,” said Mr Walsh.
He said the French magistrate reached the opposite conclusion to the DPP because he was applying French norms to the fruits of a garda investigation.
Mr Walsh said the evidence in the file — the informal “admissions” to the murder made by Mr Bailey, the “unreliable” eye-witness accounts, the accused’s prior knowledge of the murder scene — would not have withstood the scrutiny of an Irish trial and did not withstand the scrutiny of the DPP.
He said that despite the bloodied and frenzied nature of the violent attack in a briar-strewn area that left about 50 wounds and briar scratches on the victim’s body “no forensic evidence” was found linking Bailey to the crime scene.
“Had Bailey been the killer, it is inconceivable that he would not have left traces of blood, skin, clothing, fibres or hair at the scene,” said Mr Walsh.
He said it is disturbing that evidence has gone missing, which “incredibly” includes a blood-splattered gate recovered close to the victim’s body, as well as a French wine bottle found in the field next to the murder scene, 139 original statements and five files on suspects.
“These aspects cast a serious cloud over the credibility of the Garda investigation,” he said. By lifting the Garda file and inserting it unfiltered into the French prosecution and trial process, the checks and balances were lost,” said Mr Walsh.
“Insofar as the French court seems to have accepted the ‘evidence’ in the Garda file at face value and isolated from the context in which it was obtained, it is difficult to avoid the conclusion that Ian Bailey is the victim of a serious miscarriage of justice,” he said, addind that the Supreme Court refused to surrender Mr Bailey in 2012 and that the High Court emphatically rejected a second French attempt in 2017.
He said a third attempt is probably on its way to the Supreme Court and possibly from there to the European Court of Justice or the European Court of Human Rights.
“Even after more than 22 years of oppressive investigation, litigation and an apparent miscarriage of justice, there appears no end in sight to this bizarre and unprecedented case,” he said.