A Dream of Death Page 15

  He was also highly critical of the impact of austerity policies on Ireland and backed the Irish judiciary in their stand-off with the government. ‘The Irish judiciary have always been fiercely protective of their independence.’

  Sitting in the audience, I wondered whether the remark about the independence of the Irish judiciary was focused more on European judicial protocols than domestic austerity concerns. The Irish judiciary – namely the Supreme Court – had flexed its muscles by rejecting the French EAW in 2012. Such continuing independence was now clearly important to Mr Bailey and his ongoing vow to fight French extradition attempts.

  ***

  Despite his Supreme Court victory, Mr Bailey remained in a difficult legal position. Although the EAW was effectively now void in Ireland, that didn’t mean it couldn’t be activated in other European countries, including the UK. The journalist still faced the prospect of potential arrest if he ever left Ireland, even to return to his UK home.

  Twelve months after his Supreme Court victory, Mr Bailey’s elderly mother died on 18 May 2013. He was unable to visit her before her death or even to attend the funeral service in England. She was 88 years old and had suffered a number of medical problems, which left her immobile and increasingly frail. His only sister, Kay Reynolds, said that when doctors informed their mother that she was likely to lose her sight, she began to refuse food.

  The family consulted with both Mrs Bailey’s carers and her doctors. It was determined that she had her full mental faculties and was capable of making such a decision. Legally, she was entitled to refuse food even though to do so would mean her death was likely within a matter of weeks.

  Mrs Reynolds said her brother had maintained contact with his family throughout his time in Ireland and was worried about their mother. She said the pair had a ‘very sweet and tender relationship’ and she was heartbroken that her brother was unable to attend the funeral in the UK.

  Mrs Reynolds admitted that her brother was deeply upset at their mother’s death and ‘very sad’ that he was unable to visit her before her passing. He maintained contact with his family throughout the period and had sent over a special collection of poems he had written for her funeral service. He was also consulted over the specific hymns to be played at the funeral service. Mr Bailey had even written a eulogy in tribute to their mother.

  Mrs Reynolds, who had carefully followed the extradition process before Mr Bailey’s final Supreme Court victory in 2012, said she was ‘very, very scared’ for her brother and what might happen next – a recognition that the French were far from finished with their extradition campaign.

  10

  WRONGFUL ARREST

  By 2014 the French investigation had been under way for seven years and there was still no sign of any conclusion. ASSOPH believed that Magistrate Gachon couldn’t finish his report until follow-up interviews were concluded in Ireland – and suspected Ireland was delaying the process.

  At the same time, Mr Bailey’s High Court action for alleged wrongful arrest was about to reach hearing stage. A full Garda Síochána Ombudsman Commission investigation was also under way into complaints lodged by Mr Bailey over his treatment by the police in Ireland. Mr Bailey’s legal team were adamant that while these processes were continuing in Ireland, all cooperation with the French investigation should be suspended. Frank Buttimer formally wrote to the Department of Justice and Minister for Justice Alan Shatter on 24 April 2014, demanding that all mutual assistance agreements with the French be suspended immediately given ongoing domestic court actions. Such mutual assistance in the circumstances was, he argued, a blatant abuse of process.

  ASSOPH were worried that, amid the flurry of legal proceedings in Ireland, the French investigation could be stalled for months or even years, with disastrous consequences. Jean-Pierre Gazeau, Sophie’s uncle and president of ASSOPH, and Jean-Antoine Bloc visited Cork on 17 May 2014 to highlight their worries and to demand that critical Irish cooperation with Magistrate Gachon be maintained.

  Georges and Marguerite Bouniol had planned to accompany the ASSOPH members on their trip to Cork for the special press conference but, due to the poor health of Mrs Bouniol, the elderly couple were unable to attend. Mr Bouniol was now 88 years old, while Mrs Bouniol was 86 and in frail health. However, a special message in the form of a personal appeal from Mrs Bouniol would be read out at a press conference in a hotel at Cork Airport that evening.

  Mr Bloc did not shy away from detailing the consequences of an Irish decision to suspend cooperation with Magistrate Gachon. ‘[It would be] a scandal … a catastrophe. It would be extraordinary,’ he warned. ‘They have suffered terribly for seventeen years. They are very sad, very upset. They do not understand why it took so long.’ ASSOPH warned that the treatment of the French family by various Irish agencies was ‘a judicial fiasco … a denial of justice’.

  In a hard-hitting message read out on behalf of Mrs Bouniol by Mr Gazeau, Sophie’s mother warned that ‘enough is enough … we, the family, have been suffering a double penalty for almost eighteen years. Sophie was murdered and we … are mute in Ireland. We never had the opportunity to make our case and now we are the victims of serious malfunctions from police and judicial Irish systems.’

  Sophie’s uncle publicly pleaded with the Irish authorities to continue their cooperation with Magistrate Gachon and his team so that some form of justice could be delivered to the French family. The age and increasingly frail health of Georges and Marguerite Bouniol meant that timing was now imperative. Mr Gazeau told the assembled Irish media that he hoped the authorities would allow the Paris detectives resume their work in west Cork as early as 19 May.

  To maintain pressure in France and to keep the case in the public mind, ASSOPH decided to support the publication of a book to highlight Sophie’s story and what her family had endured since 23 December 1996.

  The book, L’affaire Sophie Toscan du Plantier – un Déni de justice, was written by Julien Cros and Jean-Antoine Bloc. Published by Max Milo in Paris, the book also featured contributions from Pierre-Louis Baudey-Vignaud and Marguerite Bouniol.

  Copies of the book were brought to the ASSOPH press conference, but the publication was never stocked by Irish booksellers or available for Irish distribution. That wasn’t because it was written entirely in French and there were no plans for an English translation. Rather, it was because Mr Bailey had made it perfectly clear that anyone who stocked or distributed the book in Ireland would face possible legal action because of the disputed allegations it contained.

  Mr Bailey had strenuously protested his innocence since December 1996 and was appalled that, despite the stance of the DPP, the French investigation seemed to be focused on him. Over time, he would warn that it was a tragedy for the French family for the focus to be wrongly placed on an innocent man while the real killer remained free and undetected.

  The ASSOPH press conference didn’t succeed in immediately clearing the path for the French team to visit west Cork for a final time. Ultimately, the second round of interviews was finally conducted in September 2015, when three detectives working with Magistrate Gachon flew back to west Cork. These interviews focused on 20 individuals, including several people who had already been interviewed in 2011.

  But the press conference generated major headlines in all Irish newspapers and made both RTÉ and TV3 news bulletins. Once again, there was tremendous public sympathy for Sophie’s family. Yet little, at least officially, seemed to change.

  Meanwhile, Mr Bailey was about to open his long-awaited High Court action for wrongful arrest against the State and Garda Síochána; the Garda Síochána Ombudsman Commission, which was also conducting an investigation into a complaint from Mr Bailey over the conduct of the du Plantier investigation, had paused its probe pending the conclusion of this High Court action.

  ***

  On 30 March 2015, the longest-running, most expensive and undoubtedly most astonishing civil action in High Court history ended in dramatic fashion.
/>
  The High Court action had been 64 days at hearing, since 4 November 2014. Mr Justice John Hedigan initially told the jury of eight men and four women that he had been informed by the legal teams involved that the case was expected to last for around six weeks. In the end, the action ran for an astonishing 16 weeks and featured a total of 93 witnesses – 72 called by the defendant, the State; and 21 called by the plaintiff, Mr Bailey. The case was so long that on numerous occasions the jury foreperson, at the request of other jury members, raised the issue of the duration of the hearing with the trial judge. Mr Justice Hedigan said he understood the issues the jury had raised but the action had to be allowed to follow its course. Ultimately, one jury member had to be excused because they had been offered an apprenticeship. Mr Justice Hedigan decided it would be unfair to deprive the juror of the employment opportunity. The ruling was eventually delivered by 11 jurors.

  Various legal experts estimated the costs associated with the marathon High Court hearing at more than €2 million. Mr Bailey, having been landed with Circuit Court libel action bills in 2004, now found himself facing High Court legal bills roughly ten times greater.

  Coverage of the case in the media had been exhaustive, with a full page in the Irish Independent, the Irish Times and the Irish Examiner almost every day. The case also featured in nightly bulletins on both RTÉ and TV3, as well as hourly radio news updates. Journalists assigned to cover the case found themselves doing little else for five months.

  Few who covered the 2003 Cork Circuit Civil Court libel action thought anything could surpass the revelations it contained about the du Plantier case. In truth, the High Court disclosures were of an order entirely above. Had the revelations not occurred in the context of the Four Courts, in direct sworn evidence, they would have been beyond belief.

  The allegations were wide-ranging: drugs had been offered by a garda in return for incriminating statements against Mr Bailey; Marie Farrell had been warned about the evidence she offered under oath; sexually inappropriate behaviour by gardaí; attempts by a garda to unduly influence a decision to level a prosecution charge in the case; and claims that detectives engaged in foul-mouthed rants and threatening behaviour during the investigation.

  By early 2014 there were sufficient indications that the High Court action would prove extraordinary by Irish legal standards. It had emerged that a telephone system that handled emergency calls, which had been installed in garda stations across Ireland in the 1980s, had a recording function. Such a recording function posed fundamental problems at a garda station – not least for some conversations between gardaí, which should have been treated as confidential. This system with a recording function was discontinued in November 2013.

  The garda commissioner at the time, Martin Callinan, had alerted the Department of Justice in March 2014 to the fact that the recording system had been in place. So seriously was the matter taken that it was immediately brought to the attention of Taoiseach Enda Kenny and discussed at a full Cabinet meeting on 25 March. By that time, the retirement of Commissioner Callinan had been confirmed in the wake of the controversy over the treatment of the so-called garda ‘whistle-blower’ Maurice McCabe.

  Bandon Garda Station, the centre of the du Plantier murder investigation, had such a telephone recording system and it had been in operation between 1997 and 2003 – critical periods for the du Plantier investigation.

  One month before the High Court action opened, Mr Justice Hedigan held a preliminary hearing in which various evidential matters were discussed. He directed GSOC to disclose statements it had received as part of its investigation into a complaint by Mr Bailey, lodged in December 2011, about his treatment by the gardaí. GSOC was given 12 days to comply with the order.

  GSOC was specifically asked to submit statements its officers had received from Mr Bailey, Jules Thomas, Marie Farrell and former British Army soldier Martin Graham. It was Mr Graham who claimed he had been offered drugs and cash by gardaí in return for agreeing to help secure incriminating statements against Mr Bailey. Unlike several of the other key witnesses about to feature in the High Court action, Mr Graham had played no part in the 2003 Circuit Court libel action. A special questionnaire completed by Mrs Farrell in 1997 was also to be located by GSOC.

  James B. Dwyer, a legal counsel for GSOC, explained that a single employee was sorting through a large volume of material in relation to the case to assist the hearing. He said this was causing a delay, but GSOC was doing everything possible to work with the High Court. Mr Justice Hedigan accepted the position but said that GSOC should begin handing over an initial batch of material within 12 days. A further two weeks was allowed for the remainder of the material.

  Mr Justice Hedigan was also given an undertaking or legally binding commitment by the DPP that any documentation its office had relevant to the Bailey and du Plantier matters would be handed over.

  Counsel for Mr Bailey said initial material had been received from the DPP and this ‘tended to show wrongdoing’. The DPP had voluntarily submitted documentation and the court said it had accepted an undertaking that all remaining related documentation would be provided without the need for a High Court order.

  The State raised the issue of the controversial tape recordings and stressed that there was no objection to their use during the upcoming hearing. Rather, the State said its sole concern was how these tapes were properly described and introduced to the jury during the proceedings.

  Crucially, some material would not be allowed into evidence during the hearing – to the detriment, or benefit, of both sides. Elements of a DPP assessment of the garda case (the Sheehan analysis) would not be permitted as it was deemed to be inadmissible opinion. Similarly, elements of the extradition application from the French for Mr Bailey would not be permitted as they were deemed prejudicial to him.

  On 4 November 2014, the case opened amid a huge media and legal presence. Many people not connected in any way with the hearing simply attended because they understood that legal history was likely to be made both in terms of the duration of the case and the implications of any rule, particularly for the gardaí. Mr Bailey, aware that he would be required to attend the hearing for extended periods, had arranged temporary accommodation in Dublin for the duration of the hearing. He was again accompanied by his partner, Ms Thomas.

  Mr Bailey was represented by Frank Buttimer, Tom Creed SC and Jim Duggan JC. Mr Creed was one of Ireland’s most respected senior counsels. A vastly experienced Cork-based counsel, he handled both civil and criminal matters, acting both as a State prosecutor and a defence counsel before the Circuit, High and Central Criminal Courts. Mr Duggan knew the case intimately, having acted for Mr Bailey in both the Circuit Court libel action and the subsequent High Court appeal.

  The plaintiff’s action alleged that he had been the victim of a garda conspiracy to link him to the killing of Sophie Toscan du Plantier. Mr Bailey claimed that the conspiracy began in December 1996 and was continuing to that very day.

  The core elements of the case revolved around garda conduct towards key individuals in west Cork and alleged behaviour by officers in relation to the investigation. It was alleged that gardaí had induced Marie Farrell to make false statements to undermine Mr Bailey’s alibi and had put her under duress to commit perjury in the 2003 libel action; that a garda had offered drugs and cash to Mr Graham in order to obtain incriminating statements against Mr Bailey; that another garda had acted to ensure that an assault complaint against Mrs Farrell’s husband, Chris, by a local man was withdrawn; that gardaí had actively spread rumours and stories about Mr Bailey so that west Cork locals would be willing to make statements against him; and that gardaí had planned to ‘chop up’ statements in order to strengthen their case against him.

  The key witnesses on the plaintiff’s side would be Mr Bailey, Jules Thomas, Marie Farrell and Martin Graham. Other witnesses, including members of Ms Thomas’s family, would also be called to corroborate their testimonies.

  State
defence of the action was led by Paul O’Higgins SC and Luán Ó Braonáin SC. Mr Ó Braonáin was a Dublin-based senior counsel, appointed to the Bar in 1991 and to senior counsel in 2007. He was viewed as one of the foremost of a talented new generation of defence counsels. Mr O’Higgins ranked as one of Ireland’s most experienced counsels, having been appointed a junior counsel in 1977 and a senior counsel in 1992. He had been appointed Chairman of the Bar Council in 2010.

  The High Court action opened, as the Cork libel case had 11 years before, with Mr Bailey offering evidence and outlining how being wrongly associated with the Sophie Toscan du Plantier investigation had destroyed his life and rendered his every waking moment a nightmare.

  As in the Circuit Court libel action, he explained how he had been treated by gardaí, how shocked he was by his arrest, what he perceived as blatant intimidation by certain garda officers, and how his life in west Cork had been transformed into a nightmare as a direct result. Mr Bailey said he believed there was a conspiracy by gardaí to ‘stitch [him] up’ for something he was totally innocent of. The core of Mr Bailey’s evidence was that gardaí had tried to frame him for the killing and that he should never have been arrested in 1997 and 1998, with his detentions amounting to wrongful arrests.

  Mr Bailey was in the witness box for almost two weeks. Not long into his evidence there were tetchy exchanges between the journalist and the opposing legal counsel, Mr Ó Braonáin. They engaged in heated exchanges over Mr Bailey’s conspiracy claims and, on one occasion, even about how a specific document should be presented in court.

  Mr Justice Hedigan intervened. ‘This is not a criminal trial – this is a civil trial,’ he reminded the court. However, those not familiar with legal proceedings could have been forgiven for confusing the two in the circumstances. Mr Bailey was not on trial – he was taking a civil action against the State for wrongful arrest. But there were times during the marathon hearing when onlookers could easily have mistaken some of the exchanges as more in keeping with a criminal trial. In this, there were echoes of the 2003 libel hearing. Mr Bailey was specifically asked about one of the key issues first raised during the libel hearing – the nature of comments he had made to various people about the circumstances of Sophie’s death.