Bailey loses case over Garda conduct in Toscan du Plantier murder investigation
Case related to investigation into death of French film-maker Sophie Toscan du Plantier
Ian Bailey leaving the High Court after losing his case over garda conduct. Photograph: Eric Luke / The Irish Times
Ian Bailey arrives at the Four Courts with his partner Jules Thomas on Monday morning. Photograph: Brian Lawless/PA Wire.
Ian Bailey returning to the Four Courts to hear the verdict in his High Court action for damages against the Garda and the State. Photograph: Collins
Ian Bailey leaving The High Court after losing his case. Photograph: Eric Luke / The Irish Times
In their verdict on Monday afternoon, the jury dismissed his claims of a conspiracy by gardaí to implicate him in the murder of the French film-maker whose battered body was found near her holiday home at Toormore, Schull, on December 23rd 1996.
Mr Justice John Hedigan thanked the jury and also said he offered his sincerest condolence to the family of Ms Toscan du Plantier.
He did not want anyone to think she had been forgotten here, the judge said. It was a source of “dismay and anguish” that her killer had not been caught but the Garda investigation remained live, he said.
The judge said he was also referring a transcript of Marie Farrell’s evidence in the case to the DPP for whatever action she might deem appropriate.
The costs of the action, initiated in 2007, are expected to run to several million euro. The hearing opened last November.
When retiring to consider their verdict at noon today, the jury were given two questions to answer.
The first was: “Did gardaí Jim Fitzgerald, Kevin Kelleher and Jim Slattery or any combination of them conspire together to implicate Mr Bailey in the murder of Sophie Toscan du Plantier by obtaining statements from Marie Farrell by threats, inducements or intimidation which purportedly identified him as the man she saw at Kealfadda Bridge in the early hours of December 23rd 1996m, when they knew they were false?”
The jury answered No to that question.
The second question was: “Did Det Garda Fitzgerald and Sergeant Maurice Walsh conspire by threats, inducements or intimidation to get statements from Marie Farrell that Ian Bailey had intimidated her, when they knew they were false?”
They also answered No to that question.
Because they gave a negative answer to both questions, they did not have to assess damages.
The verdict came on the 64th day of the hearing involving evidence from 93 witnesses, 21 called by Mr Bailey and 72 of behalf of the State. Some of the State witnesses gave their evidence via statements read to the court.
The case opened on November 4th when the jury were told it was expected to last six weeks. It ultimately ran for some 16 weeks and one juror had to withdraw due to taking up an apprenticeship with the effect the ultimate determination was made by eleven jurors. On a number of occasions, the jury, through their foreman, expressed concern and frustration at the duration of the case to Mr Justice John Hedigan who empathised with them but stressed the importance of the issues raised.
Mr Bailey’s case involved claims of wrongful arrest, conspiracy, false imprisonment, assault and trespass against the person and intentional infliction of emotional harm. The defendants denied every claim and evidence was called to address each of the claims.
After the evidence concluded, the judge ruled many of the claims were statute barred or not actionable. He ruled the ultimate issue left for the jury to decide was whether there was a conspiracy by some gardai to implicate Mr Bailey in the murder.
In its defence, the State had pleaded the case was in whole or in part statute barred, brought outside the relevant six year time limit for such cases. At the end of all the evidence, the State applied for the entire case to be withdrawn from the jury. That application was mainly based on the statute point but it was also alleged no case was made out for various aspects of the claim, including wrongful arrest and it would be perverse to allow those go to the jury irrespective of the statute point.
The judge queried why an application under the statute was not made earlier, either at the start of the case or at the end of the evidence called on behalf of Mr Bailey, the 37th day of the trial. Mr Bailey’s lawyers also strongly opposed the application, insisting its making at such a late stage after enormous costs had been incurred by both sides amounted to abuse of process. The case involved issues of huge public interest and the jury should determine them, it was argued.
The State argued it was open to it to raise the statute point at any stage, that gardai against whom grave allegations had been made were entitled to have an opportunity to deny them in public and it was necessary to await evidence in the case because certain aspects of the claim were not sufficiently detailed.
In an important ruling on day 62, the judge said it was clear many of the claims were statute barred. The case was initiated in May 2007 and the application of the six year limit meant any aspects of the claim related to events prior to May 1st 2001 could not be pursued. This included the claims for wrongful arrest as both of Mr Bailey’s arrests were in February 1997 and January 1998. The statute point also caught the meeting between west Cork State Solicitor Malachy Boohig and a number of gardaí in Bandon garda station in March 1998, in which Mr Boohig alleged he was asked to put pressure on the DPP to charge Mr Bailey.
The judge also ruled no case for wrongful arrest had been made out. He said there were several grounds for both arrests which did not relate in any way to statements made by Ms Farrell and it would be “perverse” to find wrongful arrest. Negligence was also not part of the case as the gardai have no duty of care in the context of investigations.
The judge also agreed with the State the courts have no general supervisory jurisdiction of the activities of Gardai and that general criticism of the investigation could not fall within the jury’s remit. He found no claim relating to extradition proceedings involving Mr Bailey had been made out and the jury could not conceivably find the State responsible in that regard as the warrant came from France and there was no evidence the processing of that was not in accordance with law and Ireland’s mutual assistance obligations.
Mr Bailey had also made out no cause of action against the State over the outcome of his libel cases against various media heard in 2003, he ruled.
The State had also argued Mr Bailey had made out no case of conspiracy to go before the jury but the judge disagreed. He said the “central claim all along” was of a conspiracy by some gardai to get Marie Farrell to make statements via threats, inducements or intimidation, implicating Mr Bailey in the murder.
If the gardaí did that, it was “an action that affronts all norms of law and an attack on the rule of law”, the judge said. “It would be, if true, an attempt to pervert the course of justice and remains a live attempt if true.”
The statements “remain lying heavily” upon Mr Bailey’s reputation and, although retracted as false by Ms Farrell, gardaí today insist they wrote down exactly what she said at the time, he also said.
Mr Bailey’s side had alleged a conspiracy against him began in late 1996 and is continuing. They listed the key elements of the alleged conspiracy as: getting Ms Farrell to make false statements implicating Mr Bailey in the murder; getting a local man in Schull to withdraw a complaint he was assaulted by Ms Farrell’s husband Chris so as to “keep her sweet”; not pursuing payment of warrants issued against Ms Farrell and her husband also to keep her sweet; telling people Mr Bailey was dangerous so as to encourage them to make statements against him; a conversation between two gardaí, Supt Sean Camon and Sgt Liam Hogan about “chopping up” statements for the DPP was intended, it was alleged, to achieve an outcome prejudicial to Mr Bailey; getting Ms Farrell to commit perjury in Bailey’s libel actions; and getting Ms Farrell to make complaints she was being harassed by Mr Bailey.
In the case, the key witnesses for Mr Bailey were himself, his partner Jules Thomas, Ms Farrell who claimed, at the behest of gardai, she signed false statements, including one placing Mr Bailey not far from the scene of the murder and former British soldier Martin Graham who claimed gardai gave him cash and cannabis to get close to Mr Bailey.
Other important witnesses were west Cork State solicitor Malachy Boohig who told the jury gardai asked him in March 1998 to put pressure on the DPP to charge Mr Bailey and that one senior Garda also asked him to get the Minister for Justice to do so. Two former DPP’s, Eamonn Barnes and James Hamilton, told the jury they had concluded there was insufficient evidence to charge Mr Bailey while Robert Sheehan, the professional officer in the DPP’s office who dealt with the Garda file, said he had told gardai in February 1997 he considered Ms Farrell an unreliable witness.
The key witnesses for the State included Det Garda Fitzgerald, Sgt Maurice Walsh, Garda Kevin Kelleher, all of whom denied any conspiracy to implicate Mr Bailey and insisted no pressure was put on Ms Farrell to make statements. Retired Chief Supt Dermot Dwyer spoke of the shock in the community about the murder and the anxiety of gardai to catch the perpetrator.
A local man, Richie Shelley, said he would remember “until I die” Mr Bailey crying in the early hours of January 1st 1999 while saying to Mr Shelley: “I did it, I did it..”. This happened at Mr Bailey’s home about an hour after Mr Bailey had produced a shoebox of press cuttings about the murder and he believed Mr Bailey was confessing to the murder, Mr Shelley said.