Former DPP says insufficient evidence to charge Ian Bailey with murder

James Hamilton says he decided against prosecution for killing Toscan du Plantier

A former Director of Public Prosecutions has told the High Court he decided there was insufficient evidence to warrant a prosecution of Ian Bailey for the murder of Sophie Toscan du Plantier.

James Hamilton said he made his decision having read the Garda investigation file and taken advice from Robert Sheehan - the official in charge of the file - and two senior counsel to the effect there was insufficient evidence for a prosecution.

He gave evidence in the continuing civil action by Mr Bailey against the Garda Commissioner and State over the conduct of the investigation into the murder of Ms Toscan du Plantier whose body was found near Toormore, Schull, on December 23rd, 1996. The defendants deny all Mr Bailey’s claims, including wrongful arrest and conspiracy.

Mr Hamilton said he took over as DPP in 1999 after his predecessor Eamonn Barnes retired. Mr Barnes had given some preliminary decisions on the Toscan du Plantier file but had not signed off fully on it, he said.

It was not normal for a DPP to read all files, because about 2,000 come into the office annually, but he read the file as the case was very high profile and subject of intense public interest and concern.

He had asked Mr Sheehan to inform gardaí of the decision not to prosecute Mr Bailey and the reasons for it. Gardaí had not questioned his decision but came back on later occasions with some additional evidence.

A decision not to prosecute is not always final as it is always possible new evidence might come to light but no new evidence came to light of sufficient quality to change the position, he said. He also informed the Attorney General’s office of the position and believed that was about the time of Mr Bailey’s libel actions, heard in 2003.

After receiving an email from Mr Barnes in June 2011 concerning a 1998 incident involving the State Solicitor for west Cork, Malachy Boohig, Mr Hamilton said he contacted the Attorney General the same day. The jury has heard Mr Barnes' email stated Mr Boohig told Mr Barnes he was asked by a senior garda to ask the Minister for Justice to get the DPP to prosecute Mr Bailey.

In cross-examination, Luán O Braonáin SC, for the State, suggested the decision the DPP had to make was whether there was evidence available on which a jury, properly instructed, could reasonably bring in a verdict of guilty.

Mr Hamilton said the DPP must decide whether there was enough evidence to allow the matter go to the jury for a decision, not whether there was enough to secure a conviction. “An investigator can act on suspicion but the DPP has to act on evidence.”

Later, during brief cross-examination by Mr O Bráonáin, Mr Sheehan agreed he made a memo on March 9th, 1998 of a phone conversation with Mr Boohig. It stated Mr Boohig had said he was approached by Assistant Commissioner Martin McQuinn, on the basis of having attended the same college as the then minister for justice John O’Donoghue, to ask him to get the DPP to prosecute Mr Bailey.

In his evidence, David Fennell, Principal Officer in the Mutual Assistance and Extradition Division of the Department of Justice, said the department acted in 2008 upon a request from the French authorities for judicial assistance concerning the Toscan du Plantier murder. The request was received in 2006 but was "parked" due to the McAndrew investigation into aspects of the investigation.

The French sought the Garda investigation file but not the DPP’s file and the District Court granted the French request after hearing evidence from a Detective Garda and the McAndrew inquiry, he said.

A French forensic team also came here, there were informal examinations of witnesses by the French and gardai went to France to meet the relevant magistrate. There was a later application to the District Court concerning medical records of Jules Thomas, partner of Mr Bailey, and records of Mr Bailey.

Mr Fennell agreed with Tom Creed SC, for Mr Bailey, that Section 3 of the Criminal Justice Mutual Assistance Act 2008 allows the Minister refuse assistance if that would prejudice State sovereignty, national security or was contrary to public policy.

The most common reason to refuse assistance was if that would intrude on a domestic investigation or prosecution, he said. After the DPP decided not to prosecute Mr Bailey, there was no bar to activating the French request and it was considered the Section 3 factors did not apply.

Cross-examined by Paul O’Higgins SC, for the State, Mr Fennell agreed requests for mutual assistance and extradition involve international obligations and this mutual assistance request related to the investigation and was not specifically about Mr Bailey. He believed a French judge could issue a fresh European Arrest Warrant for Mr Bailey if he entered another jurisdiction.

Frank Buttimer, solicitor for Mr Bailey, said the French authorities’ interest in his client o has “never ceased”, despite the Supreme Court refusal to extradite him.

A letter from the office if Minister for Justice Frances Fitzgerald to Mr Buttimer last May said she was asked by the French for assistance. While such requests from foreign governments were normally dealt with confidentially, in the “exceptional circumstances” of this case, there would have to be further consideration of the French request, the letter stated.

Mr Buttimer said the Chief State Solicitor’s office had been asked for copies of material, including writings and drawings by Mr Bailey seized by gardaí.

Mr Buttimer was “dismayed” his client was being taken into custody on the extradition request of “a foreign agency” when these matters had been dealt with through the Irish legal process and, as far as Mr Bailey was concerned, were concluded.