Bailey can rely on recent material for extradition appeal

THE SUPREME Court has ruled Ian Bailey is entitled to rely on recently disclosed material critical of the Garda inquiry into the murder of French film-maker Sophie Toscan du Plantier in his appeal against his extradition to France.

The appeal hearing before the judges of the Supreme Court is to start next Monday and is expected to run for about three days.

The High Court had ordered Mr Bailey’s extradition last March and he appealed to the Supreme Court, but the appeal was adjourned to allow his lawyers consider the new material disclosed last November.

Mr Bailey’s side argued the material disclosed a “breath-taking” level of wrongdoing by State officials and, had it been available to them for the High Court hearing, they would have been able to make “a much stronger case” concerning allegations of Garda misbehaviour in the murder investigation.

In those circumstances, they sought orders admitting the evidence, along with a fresh High Court hearing.

Mr Bailey, who was in court yesterday, is wanted for questioning by an investigating judge in France in connection with the death of Ms Toscan du Plantier. The body of the 39-year-old film-maker was discovered near her holiday home in Schull, Co Cork, on December 23rd, 1996. Mr Bailey has always denied any involvement in the murder.

Yesterday, the five-judge Supreme Court ruled the new material was admissible as evidence in his appeal to the Supreme Court.

The material includes a 2001 review critical of the conduct of the murder inquiry which outlined the reasons why former director of public prosecutions Eamonn Barnes decided Mr Bailey should not be prosecuted.

Mr Barnes contacted the DPP’s office last October to alert officials to the existence of the review, carried out by a solicitor in the DPP’s office, after which Attorney General Máire Whelan advised the DPP the material should be disclosed to Mr Bailey’s lawyers.

The 44-page review, entitled “Analysis of the Evidence to Link Ian Bailey to Sophie Toscan du Plantier’s Murder” was sent to senior gardaí in 2001.

It expressed reservations over the reliability of witness statements which gardaí had believed provided enough circumstantial evidence to warrant Mr Bailey being charged.

Yesterday, the Supreme Court rejected arguments on behalf of the State that the material was not admissible.

The State had argued the material was not new or relevant, but several of the judges noted the Chief Prosecution Solicitor informed Mr Bailey’s lawyers in a letter last November that the Attorney General had advised that the material was “very significant” and should be disclosed to them.

The Minister for Justice had also stated in a letter it was in the “interests of justice” the material be disclosed, the court heard.

In those circumstances, several of the judges remarked they could not see how the State was contending the material should not be admitted. It seemed “very odd” for the State to object to the court even considering the new material, but it seemed counsel had been instructed by the Minister to do so, Mr Justice Adrian Hardiman said.

Robert Barron SC, for the State, said the Minister’s duty was to make submissions to the court and put forward arguments. There was no clear legal authority concerning the issue of disclosure in extradition proceedings and the appeal was to be primarily decided on points of law, not facts, he said.

Mr Justice John Murray said what was unique and “totally new” here was a disclosure of the analysis and conclusions of the then DPP as to why prosecution should not occur.

Martin Giblin SC, for Mr Bailey, said the case had now become “unique” in the circumstances in which the material has become available. His side now knew the decision by Mr Barnes not to prosecute Mr Bailey was firmly rooted in his view there was “no evidence whatsoever” against Mr Bailey, counsel said. The undisputed evidence before the High Court was that the French had no new evidence, he added.

The material also showed the then DPP had been firmly of the view the Garda investigation into the murder was prejudiced and biased, and this, Mr Giblin submitted, would have strengthened Mr Bailey’s argument in the High Court that the French extradition warrant was tainted.

The Minister for Justice was not entitled to adopt “a Pontius Pilate attitude” in this matter, he said.

Mr Giblin said the material disclosed was suggestive of other evidence being in existence, including in relation to a conversation with a State solicitor for Cork in 1998.

In exchanges with counsel, Mr Justice Hardiman said the material disclosed was critical of Irish officials, not of France, and there was an issue over how an extradition could be prevented as the European arrest warrant procedure involved “an act of faith” concerning the legal systems in the participating countries.

After hearing from both sides, the court adjourned briefly to consider its decision. Ruling on the motion, Chief Justice Mrs Justice Susan Denham said the court had decided the material should be admitted as new evidence in the Supreme Court appeal hearing, and would give its reasons for this later in a written judgment.