Bailey: garda asked State solicitor to contact minister over charges

Former DPP took exception because it represented gardaí going ‘further than normal’

Former Director of Public Prosecutions Eamonn Barnes has told the High Court the State Solicitor for west Cork told him he was asked by a senior Garda to contact the Minister for Justice to get the DPP to charge Ian Bailey with the murder of Sophie Toscan du Plantier.

Mr Barnes said he “took exception” to this because it represented the gardaí taking an “extra step” and going “further than normal” in relation to putting pressure on with a view to preferring charges, Mr Barnes said.

Mr Barnes, who was DPP between 1975 and 1999, said he had taken seriously that the DPP’s office is independent in the exercise of its functions. The principal function was to decide if a person should be charged with a criminal offence, he said.

His considered opinion was there was not enough evidence to warrant a prosecution of Mr Bailey, he said during his evidence in Mr Bailey’s civil action against the Garda Commissioner and State who deny wrongful arrest and conspiracy over the conduct of the investigation into the murder of Ms du Plantier whose body was found at Toormore, Schull, on December 23rd 1996.

Earlier yesterday, Malachy Boohig, State Solicitor for west Cork, said he was asked to attend a meeting in Bandon Garda Station in March 1998 where it was made clear gardaí were unhappy the DPP had opted not to charge Mr Bailey at that point.

The meeting was hosted by Dermot Dwyer, now a retired Chief Supt, and the main speaker was Detective Chief Supt Sean Camon, since deceased, while Det Sgt Liam Hogan, also deceased, was also there. He was not sure if Martin McQuinn, who many have been an Assistant Commissioner, was there.

It was suggested certain pressure should be brought to bear on the DPP to persuade him a charge would be appropriate, he said. On leaving the room, he was spoken to by Det Supt Camon and he believed Dermot Dwyer was also present, he said. He said Supt Camon said he understood he, Mr Boohig, had been in college with the then Minister for Justice, John O’Donoghue, and asked Mr Boohig to contact the Minister with a view to getting him to get the DPP to prefer a charge.

Mr Boohig said he had said there was no way he would do that, it was totally inappropriate. He felt it was improper, he told Tom Creed SC, for Mr Bailey.

He told the DPP, Mr Barnes, about the approach, and also told Robert Sheehan, the legal professional officer in the DPP's office dealing with the du Plantier file.

At a later meeting with Mr Sheehan to discussed the file generally, they disagreed on matters, he said. He also met Mr Barnes that day and there was a brief mention of the file. He prepared a memo about the Bandon incident around 2006 at the request of James Hamilton, the then DPP.

In his evidence, Eamonn Barnes said he was concerned when Mr Boohig told him in 1998 he was asked by a senior Garda to ask the Minister for Justice to get the DPP to charge Mr Bailey. It was not “remarkable” for gardaí to put pressure on the office but he took exception to this “extra step” of seeking to get the Minister involved.

There was a “lot of attempted persuasion” to cause him to take the view a prosecution of Mr Bailey was warranted and he knew the gardaí were very anxious Mr Bailey should be prosecuted, he told Tom Creed SC, for Mr Bailey.

While he was concerned about what Mr Boohig said, he was also concerned it might create difficulties for Mr Boohig’s dealings with gardaí and let the matter rest until 2011 when, while on holidays, he read an Irish Times article about a bid by the French authorities to extradite Mr Bailey.

Mr Barnes said he did not know the extent to which the manner of approach of the Garda was relevant to the extradition. After a lot of “anxious thought”, he later expressed his anxiety to the DPP’s office and said he felt the matter should be directed to the appropriate channel which he felt was the Attorney General.

The then DPP, James Hamilton, asked him to put his concerns in writing and he sent an email to Mr Hamilton in 2011 which reflected his memory of events at that time. That email said he was not absolutely confident of the accuracy of his recollection of some details but was clear Mr Boohig had phoned him asking could he discuss a matter which he did not want to discuss on the phone.

The email said Mr Boohig had said he wanted to inform Mr Barnes of a conversation he had had about the du Plantier case. The email said Mr Boohig told Mr Barnes he attended a case conference with gardaí about the case after which he was followed out by the local Chief Supt “who was Dwyer or O’Dwyer”, who asked him had he been at school with John O’Donoghue.

In his email, Mr Barnes said he was confident he and Mr Boohig had agreed the evidence came nowhere near warranting a charge against Mr Bailey. The email said Mr Barnes was well aware of the anxiety of the gardaí to charge Mr Bailey, “strong and persistent advocacy” having been applied to the DPP’s office for some time.

Mr Barnes said in the email he was conscious Mr Boohig’s action could create difficulties for him with gardaí in west Cork and he, Mr Barnes, considered it would be best to leave the matter rest unless and until any future development made it desirable to disclose it.

Mr Barnes said he was not happy with that decision even then and the 2011 report concerning the move to extradite Mr Bailey had lead to his raising it. Papers were also later provided to Frank Buttimer, solicitor for Mr Bailey.

Robert Sheehan, the DPP official dealing with the du Plantier file, said Det Supt Ted Murphy phoned him the night Mr Bailey was first arrested, (February 10th 1997), told him of the arrest and about Marie Farrell and other matters, and asked him to direct a charge.

Mr Sheehan said he considered the information given “completely without merit”. He rang Mr Barnes who agreed with him, “on no account”, should there be a charge directed that night.

He had a consultation in February 1997 with Det Supt Murphy, Det Sgt Liam Hogan and another Garda where he made it “abundantly clear” he considered the evidence of Marie Farrell “absolutely unreliable”.

Ms Farrell made a statement in February 1997 describing a man of average height and thin build but later, “lo and behold”, when gardaí wanted Bailey to be a suspect, “the man was big, in fact he was Mr Bailey”, he said. “It was not just unreliable, it was perverse.”

Luán O Braonáin SC, for the State, objected to the expression of opinion from Mr Sheehan saying it was for the jury to decide such matters. Mr Justice John Hedigan agreed and asked Mr Sheehan to refrain from such expressions. He also refused Mr Sheehan's request to refresh his memory of matters from his own notes in the DPP's file, which Mr Sheehan said he has not seen since 2003. The judge said only contemporaneous notes can be referred to by any witness.

Mr Sheehan said gardaí had told him, if Mr Bailey was not charged, he “would kill again imminently” and they were very concerned about that. He had his own view and declined to direct a prosecution of Bailey.

While considering the very large file over a number of years, he did not believe it contained what was necessary for a murder charge “or any charge”. He also said correspondence from him had elicted material which he felt should have been in the file.

The case continues.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times