'Dramatic and shocking' papers revealed late in case

Fri, Mar 2, 2012, 00:00

ALLEGATIONS:MATERIAL DATING back to 1998 but disclosed to lawyers for Ian Bailey just months ago revealed an unnamed senior garda or gardaí allegedly tried to get the State Solicitor for West Cork to put political pressure on the Director of Public Prosecutions to prosecute Mr Bailey for the murder of Sophie Toscan du Plantier, a Supreme Court judge noted.

Mr Justice Adrian Hardiman yesterday noted that this alleged attempt was made despite a view within the DPP’s office that there was no evidence to warrant the prosecution of Mr Bailey.

Mr Justice John Murray said the material, disclosed last autumn, was “of the highest importance” as it emanated from one of the State’s highest law officers:former DPP Eamonn Barnes.

The material was “dramatic and shocking” as it involved Mr Barnes expressing concern that Mr Bailey’s surrender was being sought on the basis “of evidence and conclusion provided by what was regarded at the time as a thoroughly flawed and prejudiced Garda investigation culminating in a grossly improper attempt to achieve or even force a prosecutorial decision which accorded with that prejudice”.

Mr Barnes had said he felt, as a matter of ordinary justice, he was obliged to bring that matter to “appropriate attention”, the judge said. The analysis by the DPP’s office in 2001 of the Garda investigation into the murder showed how a person, not Mr Bailey, was arrested for an unlawful purpose and, “shockingly”, also arrested a second time “in the teeth” of prior directions from the DPP that such an arrest would be unlawful.

“Such conduct in the course of a police investigation, if true, strikes a blow against the fundamentals of the rule of law on which the State is founded,” he said. The issues raised by such material had, however, to be tried in a court of first instance, not an appeal court such as the Supreme Court.

Mr Justice Hardiman noted, during the hearing of Mr Bailey’s Supreme Court appeal, counsel for the State, Robert Barron SC, made “no comment at all” on the allegation of a Garda attempt to get a politician to intervene with the DPP to have Mr Bailey prosecuted. The State had neither admitted nor denied that.

In November 2011, while Mr Bailey’s appeal was pending, the State authorities wrote to his lawyers enclosing copies of the materials. Dating back to 1998, these included copies of emails apparently written by Mr Barnes and by Malachy Boohig, State Solicitor for West Cork, plus a memo written in 2001 by an unnamed official in the DPP’s office.

“These documents appear to record an alleged attempt by an unnamed senior garda or gardaí to procure Mr Boohig to bring political pressure to bear on the independent DPP to prosecute Mr Bailey for the murder of Madame Du Plantier.” Mr Boohig immediately informed the DPP, who recorded the information as set out, the judge said. Apart from that, the DPP “preserved silence on the matter and kept it confidential until the last possible moment, in November 2011”. The judge also noted the Bailey side was provided with an unsigned 44-page analysis of the case of Ms Toscan du Plantier, produced by the then DPP or in his office, which concluded “a prosecution against Bailey is not warranted by the evidence”.

It was “most unusual”, the judge added, that such documents, plainly internal to the prosecuting and investigating authorities, were disclosed in this fashion. It appeared the email documents were generated when Mr Barnes sent them, or some of them, to his successor’s office. Asked by his successor for advice, the Attorney General said they should be disclosed “on the basis of their manifest importance”.

All that now needs to be said about the new material was that the decision not to prosecute Mr Bailey was based on a detailed view of the evidence put forward by the Garda, not on technicalities or a preconceived attitude, the judge said.

It also appeared the former DPP considered the Garda inquiry into the case was prejudiced against Mr Bailey, and flawed.