Scandal hidden in plain view

How can the French police continue to investigate Ian Bailey while a Supreme Court judge probes allegedly illegal activity by the gardaí over the case, asks Special Correspondent Michael Clifford

Scandal hidden in plain view

PATRICK GACHON will have taken great interest in yesterday’s announcement by the Government on the terms of reference for the Fennelly inquiry. Monsieur Gachon is a French judge, charged with investigating the murder of Sophie Tuscan du Plantier in West Cork in December 1996. The Garda investigation into the French woman’s killing now forms part of the terms of reference for Judge Nial Fennelly’s inquiry.

Since Mr Gachon’s appointment, the Irish Government has bent over backwards to facilitate this highly unusual investigation by a foreign body into events that occurred in this jurisdiction. Yesterday’s announcement throws that co-operation into sharp relief.

The French have identified Ian Bailey as a suspect in the murder, following assistance and direction from An Garda Síochána. But now all has changed. How can the Government continue to facilitate the French while a Supreme Court judge in this jurisdiction examines whether the fingering of Mr Bailey resulted from illegal or improper actions by An Garda Síochána? Next month, investigators from France are due to make their latest visit to this country to pursue a case accusing Bailey of murdering Ms du Plantier. The case is being presided over by Judge Gachon under a law which allows for the investigation of the death of a French national abroad.

Effectively, the French have acted because of a failure by the Irish police to solve the crime. Three times over the last 17 years, the DPP has concluded that there is insufficient evidence for any prosecution in the case.

Judge Gachon was appointed in 2007. Ms du Plantier, a 39-year-old film producer, was well-connected with the establishment through her ex-husband, and it is believed that pressure was applied to bring closure to the bereaved.

Members of An Garda Síochána were dispatched to France to fill in the French on where things stood. Crucially, the gardaí did not hand over to the French investigators a critique written in the DPP’s office in 2001, which was highly critical of the Garda investigation, and came to the conclusion that there was no basis on which to pursue a prosecution.

Once put right by the Irish cops, the French came looking for Bailey. A European Arrest Warrant was issued on February 9, 2010. The warrant requested Bailey’s extradition, not on foot of a criminal charge but merely to question him.

The government here didn’t question the basis for the request. Dermot Ahern, the then justice minister, signed off on it and Bailey launched a challenge to the order.

It took nearly two years for the matter to wind its way through the High Court, which ruled against Bailey, all the way to the Supreme Court, which ultimately ruled in favour of Bailey.

In between the respective rulings, the damning 2001 critique of the Garda conduct was made available through the DPP’s office. Despite being in possession of this evidence — which effectively showed that Bailey had been fingered on discredited evidence — the French have persisted.

The five-judge Supreme Court ruled in favour of Bailey. One of the judges, Adrian Hardiman, set out how crazy things had become.

“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,” the judge ruled.

“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.”

As a result of the European Arrest Warrant, Bailey is now effectively confined to this state. If he travels within Europe, he risks immediate imprisonment and the possibility of extradition. Last year, when his mother died in England, he didn’t travel to see her in the final stages of her illness or attend her funeral for fear of arrest.

As part of the probe, a team of investigators and forensic scientists were dispatched from Paris to Ireland, to do a proper job where the allegedly incompetent Paddys failed.

On October 4, 2011, the hotshot team flew into Cork Airport. Their arrival was tracked breathlessly by the RTÉ cameras. The A team were in town. They were hosted by the local constabulary and ferried about to their investigations. Around 30 witnesses or interested parties were interviewed. The scene of the crime, which by then was 15 years old, was examined. All elements of the original investigation were reviewed.

The whole exercise was like something out of a Graham Greene novel set in Africa in the middle of the last century, the colonial power drafted in to clean up after the incompetent natives. Does anybody believe that, were the shoe on the other foot, the French authorities would allow members of the gardaí arrive and investigate a crime that occurred on French soil?

It gets worse. Despite all that emerged in recent weeks, the Government is continuing to co-operate with the French. Investigators are due to return next month for the next phase of the “Get Bailey” investigation.

By now, the Taoiseach, justice minister, attorney general, and the former Garda commissioner have all had sight of telephone transcripts that show, at the very least, that there were attempts to fit up Bailey. Yet none of these, the highest office holders in the land, are compelled to point out the obvious to the French and politely wish them ‘au revoir’.

Instead, they turn their eyes from what is now screaming out to be nothing short of a witch hunt, directed at a long-time resident of this state, and facilitated from the very top. Surely, now that the investigation into the murder is itself the focus of an inquiry, it’s time to bring the French charade to an end. Bailey’s solicitor Frank Buttimer, has called on the justice minister to act.

“I regard it as a flagrant abuse of power that our authorities are continuing to co-operate [with the French investigation] when they must now know, if they haven’t for a long time, that grave questions arise about how Mr Bailey was investigated by An Garda Síochána,” Mr Buttimer said.

“I have called on the minister to act because he has authority to ensure that there is compliance with national and constitutional justice.”

A spokesman for the Department of Justice said it would be inappropriate for the minister to comment on a matter before the courts.

“Ireland deals with mutual assistance requests in accordance with its legal obligations under the relevant international conventions and domestic legislation,” the spokesman said.

Surely it’s not about money? Bailey and his partner, Jules Thomas, are currently pursuing a civil action for wrongful arrest. As each new nugget of evidence tumbles out, their case gets stronger by the day. Surely, the agencies of the State aren’t abusing their powers as nominal custodians of justice to harry a litigant who is taking a civil action against the State?

Could it be that even now a scandal is persisting in clear view of the whole country?

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