A Dream of Death Page 12

  In the run-up to the libel hearing in December 2003, she kept praying that she would not be required to take the witness stand or even to attend. She was horrified when she was told she would have to attend and offer sworn testimony. Ultimately, she was issued with a witness subpoena.

  For the whole week of that trial I kept saying, you know, that I wasn’t going. There was no way I was going to court. But I had certain gardaí ringing me, sometimes three or four times a day telling me that I had to go to the court. My husband was telling me I wasn’t to go. I was adamant I wasn’t going. I told them there was no way I was going to court and telling lies.

  But then I got a phone call the day before I appeared at the libel trial, and a garda told me that if I didn’t go an application would be made to the court to have me arrested. He said, ‘You’ll probably be brought there in handcuffs, which is worse.’ So he said I had to meet a different garda that morning and that he’d run through everything with me and that I had nothing to worry about, stick to the story and there was nothing to worry about.

  So the morning that I did appear at the libel trial, I met a garda just outside Cork city. He told me what I had to say, and stick to it, and there would be no problems. When I got up on the stand I was panicking, and I was thinking, ‘Will I tell the judge the truth here?’

  Then I looked down to the back of the court and there was, you know, the gardaí standing there watching me with their arms folded. I thought, you know, ‘I have no way out of this.’ But at the same time I could not remember what I was meant to say. So it was a relief then when that was over.

  The shopkeeper said she did not want to be in the Cork court and did not want to give evidence. But she said she felt under intolerable strain from the gardaí to participate and to back up the previous sworn statements she had given them in respect of the du Plantier investigation. ‘[It was only] because I was being put under so much pressure from the gardai,’ she said.

  Mrs Farrell said she finally decided to retract her statement and go public with the reasons why she had made such allegations under oath because she felt trapped by the whole saga and that she feared that it would never end.

  I got a phone call from a garda, and we were just talking in general and then he said to me that Sophie’s parents were taking a civil action against Ian Bailey for Sophie’s wrongful death. And he said, ‘You know that’s going to end up in court and you’re going to have to go in there again?’ And I said there is no way that I would ever, ever go to court and tell lies for the guards again.

  I said, ‘You know, if you keep pushing me now, I’m going to go and see Frank Buttimer.’ He said, ‘You know, no one is going to be interested in what you have to say.’ And I said, ‘You know, maybe Ian Bailey will be interested?’ I said, ‘I am going to tell them the whole truth about what happened.’ He said, ‘If you go down that road you will never again have a day’s peace as long as you live.’ [But] I know I’m telling you the truth.

  I did it because I knew it was the right thing to do. I had to come forward and tell the truth. I’ve gone through years of, I don’t know how to say it, harassment? Hardship? Stress? Because of doing the right thing. What I did in 1996 and 1997 was stupid. I was naive. I really, really thought that the guards could do no wrong.

  Over the coming months she would go on to do more detailed interviews with TV3, in an attempt to explain her statements to gardaí, her evidence during the libel hearing and why she had finally decided to offer a different narrative.

  The interview caused a sensation. It was akin to throwing a stick of dynamite into an already blazing bonfire. Every Irish newspaper covered the story in the subsequent days and Mrs Farrell was inundated with pleas to appear on radio and TV programmes.

  The TV3 interview marked a shift in public perceptions towards Mr Bailey and the garda investigation. In France, the news unsettled Sophie’s family and their supporters, encouraging them to mobilise and form what would eventually become ASSOPH.

  But if the interview had a seismic impact on the Irish media, its impact on the Irish judicial system was on an altogether greater scale.

  Mrs Farrell had been as good as her word to the gardaí: six months before the TV3 interview, she had made contact with Mr Bailey’s solicitor, Frank Buttimer. She had first made contact with Mr Buttimer on 18 April. Three weeks later, on 10 May, she visited Mr Buttimer’s legal offices on Washington Street in Cork – just a stroll from Cork’s famous eighteenth-century courthouse – and made a detailed statement about both what she had seen at Kealfadda Bridge in December 1996 and what she said had transpired between her and gardaí between 1997 and 2003.

  She also made detailed statements to him about the circumstances of the Circuit Court defamation action. Mrs Farrell also consulted with her own solicitor about the legal situation she found herself in.

  Frank Buttimer was clear in his assessment of the implications of what Mrs Farrell had to say. He warned that his client had been the victim of outrageous behaviour by agents of the State – Mr Bailey had consistently maintained his innocence and attempts had been made by some to ‘stitch [him] up’ for the crime.

  Mr Bailey is greatly relieved at this development. He is grateful to Mrs Farrell for her courage [in coming forward]. I genuinely mean that – her courage in coming forward at this point in time and being satisfied to correct the wrong that she could be accused of doing. The easier option would have been to remain silent and allow the thing to stay as it was and to fester. She has now put herself back into the focus and the spotlight.

  The issue was directly raised with Minister for Justice Michael McDowell as it potentially had profound consequences far beyond the gardaí for the impartiality of the entire system of administration of justice in Ireland. The government was also acutely aware of the impact such allegations would have for the French, who were still hoping that some kind of judicial action over Sophie’s death would be sanctioned in Ireland.

  Almost immediately it was confirmed that Assistant Commissioner Ray McAndrew would review the allegations made by Mrs Farrell and, in particular, her claims in respect of the behaviour of key officers involved in the du Plantier investigation over the previous decade. The review would involve interviews with all key players involved. But, critically, there was no indication at the outset that the report would ever be published.

  Instead, the McAndrew Report would be submitted to the garda commissioner on its completion in 2007. It comprised interviews with almost 100 people, around 50 of whom were either serving or retired gardaí and detectives. The Minister for Justice would also be briefed on its findings and recommendations.

  But it wasn’t just the garda commissioner and Minister for Justice who examined the McAndrew Report. It was also submitted to the DPP’s office for consideration. To the surprise of no one, it subsequently emerged that no prosecutorial action was recommended on the basis of the report or its findings.

  That report has never been made available to the public – and has never been fully referenced in any of the court proceedings either in Ireland or France. The McAndrew Report was not even discussed in detail in the Garda Síochána Ombudsman Commission (GSOC) report, which would be painstakingly compiled over eight years following formal complaints about their treatment at the hands of gardaí by Mr Bailey, Ms Thomas and Mrs Farrell.

  It was obvious that Mrs Farrell’s complaint about alleged garda duress would have enormous implications, not least for future legal actions. In the meantime, Mrs Farrell and her family moved out of west Cork and back to Longford, where they had previously been based, but she would not be able to retreat from the media spotlight.

  ***

  The next step in Mr Bailey’s legal battle came in 2007, with the arrival of his appeal against the Cork Circuit Court libel rulings before the High Court. On 13 February, the long-awaited case opened in the Washington Street court complex in Cork city centre before Mr Justice Brian McGovern. The temporary Camden Quay courthouse had been abandoned n
ow that the historic Washington Street premises was ready following a lavish revamp.

  A large media presence was on hand for what many expected to prove a very high-profile, if fraught, hearing that could last at least twice as long as the two-week Circuit Court proceedings. What dominated the thoughts, including my own, of every journalist present was the role Marie Farrell would now play in the court action. The pundits were correct about the appeal proving both high-profile and fraught, but the action lasted less than four days at hearing and ended with a whimper rather than any searing legal oratory or dramatic ruling. As for Mrs Farrell, she didn’t feature in the hearing at all.

  The High Court appeal opened in stuttering fashion amid consultations and clarifications between the opposing legal sides. Mr Bailey once again opened proceedings in the witness box to set out the damage he had suffered as a result of the newspaper articles published between 1997 and 2001.

  His evidence was nothing if not headline-grabbing. One west Cork individual was described by Mr Bailey as having a penchant for marijuana. Another unrelated comment by Mr Bailey resulted in proceedings being temporarily halted before the appellant’s legal team issued clarifications to mollify members of the legal team for six of the newspapers who were perceived to have been the possible target of the remark.

  Another lengthy adjournment then prompted speculation that talks were under way to reach a settlement. The speculation proved to be correct. Shane Phelan, at the time a senior reporter with the Irish Daily Star, approached me as we waited in the courtroom for the case to resume hearing evidence and whispered that a deal was now in the offing. Instead of a marathon libel appeal we would instead be dealing with a High Court ‘sprint’.

  To the astonishment of many, it was announced that the case had collapsed on its fourth day at hearing. The High Court was informed that Mr Bailey was withdrawing his appeal. He would not be paid any damages by the six newspapers that had successfully defended the 2003 action. The publications in question had, however, agreed to make an undisclosed contribution to his legal costs. Additionally, the newspapers agreed to waive the legal costs that had arisen from their Circuit Court libel victory and would not pursue Mr Bailey for the estimated €200,000 involved.

  Over the following days, legal analysts would speculate that the newspapers had carefully calculated the cost of fighting and winning a lengthy High Court libel battle and judged that it would effectively equate to a defeat. Better, it seemed, to negotiate an early route out of the action that suited everyone involved. But the newspapers went to great pains after the action ended to stress that no damages had been paid to Mr Bailey.

  Solicitor Paula Mullooly, acting for Independent News and Media, said it was a full and final settlement of the matter and represented a clear victory for the industry. ‘No damages will be paid to Mr Bailey,’ she emphasised.

  But Mr Bailey and his legal team also hailed the settlement as a victory – and an outcome that would allow him to now focus on the bigger legal battles looming on his horizon. His legal team also highlighted the newspapers’ comment that nothing in the articles cited was intended to suggest that Mr Bailey was a murderer and that it was accepted Mr Bailey had at all times maintained his innocence.

  ‘Now he can concentrate on battles to come,’ Frank Buttimer said. ‘We are initiating proceedings against the State. [Mr Bailey] has cooperated with the garda inquiry, which is ongoing, and about to report in relation to garda misbehaviour to do with this case.

  ‘Claims for damages will certainly proceed to full hearing in relation to what was done to him by the State and by agents of the State – with regard to why he was selected as the offender in this case, the reason for it, the background to it [and] the consequences he suffered as a result of being falsely labelled as the offender. Lest anybody think that these matters will not proceed [to a hearing], they absolutely will,’ the Cork solicitor vowed.

  Mr Bailey’s counsel, Brendan Nix SC, told Mr Justice McGovern the matter had ended following talks. ‘The defendant newspapers confirm that nothing in any of these articles was ever intended to suggest that Ian Bailey murdered Sophie Toscan du Plantier. The defendants are not saying now nor did they ever say he was a murderer,’ he said.

  The 2007 High Court action would not mark the end of Mr Bailey’s legal battles over what he complained had been done to him in west Cork between 1997 and 2003. However, his next High Court action, rather than lasting four days, would make Irish legal history.

  ***

  His ongoing legal battles had one positive side-effect for Mr Bailey – it revived a long-standing interest in the law that brought him back to university. In 2006, just as his High Court libel appeal was rumbling towards a hearing, he decided to pursue a law degree at University College Cork. He began his studies and lived for a time in a small rented flat just off Cork’s Coal Quay. Mr Bailey became a regular at UCC Law Society events.

  The journalist loved his studies and, on 7 December 2010, he graduated with a Bachelor of Civil Law degree. At his graduation, he spoke to Cork journalist Olivia Kelleher for several newspapers and took pains to insist that he had had a great interest in the law since his days as a journalist in Cheltenham and Gloucester and that his studies were not a direct result of his Circuit Court and High Court experiences in Ireland.

  The irony was lost on no one that Mr Bailey and the landmark court actions he had triggered would likely feature in the study programmes of future students in the university.

  8

  FRENCH INVESTIGATION

  Frustrated by events in Ireland and increasingly worried that no one would ever be prosecuted over the murder, the French decided to change tactics.

  In the immediate aftermath of the 2003 libel hearing a civil lawsuit had been flagged by the Bouniol family that had made headlines across Ireland. The lawsuit was signalled with the apparent intention that it might persuade the Irish authorities to review the garda case file once again and reconsider the decision not to take further action.

  While two reviews of the garda case file were indeed ordered, one before the defamation action and one subsequent to it, the DPP’s stance on the matter did not change. There would be no prosecution as the DPP did not consider there was sufficient evidence to justify a charge. So much had now happened with the case and so much had been brought into the public domain that there was an increasing belief that any prosecution in Ireland would be impossible.

  By 2007 it had become apparent that the civil action, even if it proceeded, offered limited scope to achieve the goals of the French family. The Irish authorities showed no sign of sanctioning action on the basis of the garda case file and, as the libel action revealed with its cost award, Mr Bailey had no assets, wealth or income to pursue as part of any civil litigation process. Instead, the family and their supporters turned to the French law.

  ***

  In early 1997 a formal complaint had been lodged with the French authorities over the killing in Ireland. Although the complaint had been made just weeks after the killing, the family had not yet lost hope in the Irish criminal justice system at that point. Rather, it was a procedure often used by French families for a loved one who died overseas. It effectively involved the French authorities in the process and, at the very least, ensured judicial and diplomatic weight was added to their search for answers and justice.

  The complaint was lodged by Daniel du Plantier as well as Georges and Marguerite Bouniol before the Tribunal de Grande Instance in Paris on 17 January 1997, just 25 days after Sophie’s death. Such complaints can serve another long-term purpose: under France’s Napoleonic Code, it was possible for French authorities to conduct a domestic investigation into a crime that had occurred outside their jurisdiction. All that was required was that the crime involved a French citizen.

  It did not matter that the suspect was not on French soil or that the bulk of witnesses were outside French jurisdiction. It also did not matter that the original investigation was not carried out by Frenc
h police. The Napoleonic Code – amended under further French statutes in the 1960s – provided France with all the legal powers required to conduct a full investigation and, if necessary, a prosecution.

  Such a legal option is totally alien in both Ireland and the UK, where a very different legal system, tracing its roots back to Anglo-Saxon times, is in place. Whereas Ireland and the UK have an adversarial judicial system, in which there are very strict rules in place over evidence, jurisdiction and testimony, France operates an entirely different system, in which prosecutors had much greater freedom.

  ***

  In 2007 ASSOPH, in consultation with Sophie’s family and solicitors, Alain Spilliaert and Eric Dupond-Moretti, came to the realisation that, if Ireland wouldn’t sanction a prosecution for its own legal reasons, a French-led investigation could potentially lead to criminal proceedings against Mr Bailey in Paris. The association’s campaign was boosted by the calibre of the people involved.

  Sophie’s uncle, Jean-Pierre Gazeau, was the president of ASSOPH and a driving force in both its foundation and subsequent work. Mr Gazeau was a mathematician and physicist who specialised in quantum physics and came to rank as one of France’s top academics. Quiet, polite and fluent in English and Spanish, he brought the logic, planning and determination of an academic to the work of ASSOPH. It also helped that Mr Gazeau was well versed in international negotiations. As one of the top physicists in France, he was a visiting consultant and researcher with science foundations and universities in the United States, Japan, Canada, China, and even Iran.