NEW MATERIAL provided by the State to lawyers for Ian Bailey earlier this week is “highly relevant” to his bid to prevent his extradition to France in connection with the murder of French film-maker Sophie Toscan du Plantier and discloses a “breathtaking” level of wrongdoing by State officials, lawyers for Mr Bailey told the Supreme Court yesterday.
If Mr Bailey’s lawyers had been given that material for his unsuccessful High Court challenge to the warrant for his extradition, they would have been able to make “a much stronger case” in that court concerning allegations of Garda misbehaviour in the murder investigation, Martin Giblin SC, for Mr Bailey said.
Chief Justice Mrs Justice Susan Denham yesterday granted Mr Giblin’s application to adjourn Mr Bailey’s Supreme Court appeal – which was scheduled for hearing on Monday next – against the High Court order for his extradition to France. The State did not oppose the adjournment application.
Mr Giblin said the adjournment was necessary to allow his side consider the new material provided to them last Monday by two different State authorities – the DPP and the Minister for Justice – and also to consider whether they could seek further material from the DPP. He was surprised the State had not sought the adjournment, counsel added.
The material produced was highly relevant to Mr Bailey’s High Court challenge and went to the root of submissions made on his behalf, Mr Giblin said. Those submissions were very measured and constrained due to a lack of material but, had this material been available then, his side would have been able to make very strong allegations of Garda misbehaviour in this investigation.
Counsel said it would be necessary to have the material before the Supreme Court when it heard Mr Bailey’s appeal. He was conscious the Supreme Court, an appellate court, did not normally hear evidence which was not before the High Court and was thus facing “an unprecedented situation”.
The extent of the wrongdoing by State officials was “breath-taking, even by the lowest standards encountered by the courts”, counsel added.
The material at issue was so extensive the State may wish to claim privilege over some matters, he said. The situation was unprecedented because the DPP, on the advice of the Attorney General, had made available material to Mr Bailey from some files that Mr Bailey would not be entitled to.
Some material had also come from the Department of Justice on Wednesday evening.
The material had also been sent to the French judicial authorities, who may or may not wish to take it into account in their proceedings, counsel added.
Robert Barron SC, for the State, said the DPP had made available certain fresh material in the context of the European arrest warrant proceedings. Mr Giblin was saying it was relevant, counsel said. His side was not saying at this stage the material was irrelevant and was not opposing an adjournment of the appeal.
This was not a situation where material had been withheld, counsel added. There might be issues whereby something might have been done earlier but the DPP had decided in the last two weeks to release certain material.
Given the developments, Mr Giblin said he was seeking an adjournment of the appeal so his side would have an opportunity to examine the material in detail. His side may also bring a motion seeking directions concerning how they could bring a motion for discovery of other material against the DPP in circumstances where his side had no quarrel with the DPP, counsel said.
The Chief Justice said, in the circumstances, the appeal would be adjourned as time was required to consider the material and whether to bring motions.
Mr Giblin also said Mr Bailey, who was in court yesterday, was on bail on “highly onerous” conditions. Given what was in the new material, counsel indicated he would be bringing a motion seeking to alter the nature of those conditions.
Mrs Justice Denham said she could not deal with the bail issue in a case management list but counsel could bring a motion at short notice to deal with the bail issue.
A five-judge Supreme Court had been convened to hear the appeal, listed to run for three days. However, lawyers for the State had told the Chief Justice last week there might be “some developments outside the control of the State” which may impact on the appeal.
Mr Bailey remains on bail. A former journalist, he is wanted for questioning by an investigating judge in France in connection with the murder of Ms Toscan du Plantier (39), whose body was discovered near her holiday home in Schull on December 23rd, 1996.
Mr Bailey (53), Schull, Co Cork, has always denied any involvement in the murder. He was arrested by investigating gardaí and the DPP found no basis to charge him.
Last March, the High Court ruled Mr Bailey should be extradited.
