A Dream of Death Page 18

  The court noted that both of Mr Bailey’s arrests – in February 1997 and January 1998 – fell outside that six-year period. Also outside the six-year period between 2001 and 2007 was the meeting at Bandon Garda Station between west Cork State solicitor Malachy Boohig and a number of senior garda officers.

  Having heard the evidence, Mr Justice Hedigan ruled that, in his opinion, no case for wrongful arrest had been made. The judge noted that there were, in fact, several grounds for both arrests, totally separate from any issues in relation to the statements made by Mrs Farrell. Mr Justice Hedigan said that to consider either of these as wrongful arrests would be ‘perverse’.

  He ruled that general criticism of the conduct of the garda investigation in respect of the du Plantier case was not a matter for the court or the jury. He accepted a submission by State counsel that the courts did not have any supervisory jurisdiction on the activities of gardaí in general. The judge also ruled out any issue in respect of Mr Bailey’s complaint about the extradition proceedings. He pointed out that the EAW had originated in France and the State could not conceivably be held responsible for that. No evidence had been offered that Ireland had breached or manipulated the processing of obligations under agreed European mutual judicial agreements.

  In addition, Mr Justice Hedigan ruled out any issue facing the State over the libel actions taken in 2003 by Mr Bailey and their outcome. No cause of action had been made. This referred to allegations that the State and gardaí had provided assistance to the newspapers in defending the libel actions.

  However, the State did lose on two of its applications – namely, that no case of conspiracy had been made and therefore should not be put to the jury. Mr Justice Hedigan disagreed. He noted that the central claim by Mr Bailey was that certain gardaí had worked to get Mrs Farrell to make statements that would incriminate the journalist. These statements, it was claimed, had been made by inducements and intimidation and were aimed at implicating Mr Bailey in the murder investigation.

  The judge said such claims were very serious and, if true, represented an ‘action that affronts all norms of law and an attack on the rule of law. It would be, if true, an attempt to pervert the course of justice and remains a live attempt, if true.’

  Mr Justice Hedigan ultimately rejected the State application for the conspiracy charges not to be put to the jury. He said that the statements taken by various gardaí from Mrs Farrell were ‘lying heavily’ upon the reputation of Mr Bailey. He said the conspiracy counts should therefore be put to the jury.

  In his closing argument, Mr Creed said Mr Bailey’s case was about demonstrating to the world that he had absolutely nothing to do with the appalling death of Mrs du Plantier. He argued that his client was the victim of an ongoing conspiracy and that the High Court action effectively amounted to a ‘David and Goliath [battle] ... with the forces of law and order’. Mr Creed said there was a very simple reason Mr Bailey had taken the action. ‘That is why we are here, this is him saying to the world, “Will someone please say, ‘Stop, what you are doing is wrong.’”’

  For the State, Mr O’Higgins pointed out that it was clear from the various recordings that had been played to the hearing that in various garda interviews, Mrs Farrell was the one in control. He said the shopkeeper had threatened to withdraw statements, but not once in any of the recordings was there any indication that she had been induced to make the statements or been put under duress by gardaí.

  Mr O’Higgins opted for a comedic reference in his assessment of the recordings, which were, as he put it, ‘not of the choirboy tenor’. In a reference to the cult Channel 4 show Father Ted, he warned that ‘if every detective was Father Dougal, you might not solve many crimes, but one might prefer a little less of the language of Father Jack in the tapes’.

  ***

  The jury was ultimately given two questions to answer by Mr Justice Hedigan and both related to conspiracy involving gardaí, Mr Bailey and Mrs Farrell.

  The first question 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 23 December 1996, when they knew they were false?’

  The second question was, ‘Did Detective Garda Jim Fitzgerald and Detective 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?’

  The jury was sent out by Mr Justice Hedigan to consider its verdict on Monday, 30 March 2015, after some 64 days of evidence. The 11 men and women were back with their verdict after just over two hours of deliberation. The case had once again confounded the pundits, who had expected the jury to be out considering a verdict for several days.

  In answer to both questions put to them, the jury unanimously rejected that the gardaí had engaged in any form of conspiracy against Mr Bailey. There was a brief stunned silence in the courtroom before every eye turned to the journalist to gauge his reaction.

  Looking calm and composed, Mr Bailey had his arm around his partner, who was once again in court supporting him. Immediately after the jury verdicts were confirmed, he leaned over to consult with his legal team before leaving the court.

  To the surprise of no one, Mr Justice Hedigan also confirmed that he would be referring to the DPP a transcript of the evidence offered by Mrs Farrell to the High Court hearing to determine what action, if any, might be appropriate. However, few journalists present expected any subsequent action given all that had happened in the convoluted legal cases between 2003 and 2015.

  After paying tribute to the jury for their diligence and commitment to the hearing, the judge addressed the du Plantier family. He said he felt it important to ensure that Sophie was not forgotten and that her family should know that: ‘Throughout this case there has always been the shadow of the late Sophie Toscan du Plantier and her tragic and senseless death. It is a source of dismay and anguish in Ireland and France that her cruel killer has not been brought to justice. I do not want it thought that her life was forgotten here in this court.’

  Judge Hedigan’s comments served as a fitting reminder to everyone that the various legal actions over the previous years had taken place against the backdrop of an unsolved murder case and a heartbroken family in France still hoping and praying for justice in Ireland.

  11

  BUILD-UP TO PARIS TRIAL

  The High Court verdict was a shattering defeat for Mr Bailey, although he seemed determined not to show any outward sign of it. For ten years, since 2005, it had appeared that every new development in the du Plantier case had been damaging to the gardaí and had appeared to bolster his case for wrongful arrest. Now he faced the aftermath of losing the longest-running civil action in High Court history in Ireland.

  Mr Bailey left the High Court with Ms Thomas. He did not comment to the large gathering of reporters, photographers and TV crews outside. His solicitor, Frank Buttimer, issued a brief statement in which he acknowledged their great disappointment at the outcome.

  ‘[Mr Bailey] is obviously very disappointed with the outcome. He gave this case his very best effort. He thought – and in fact still thinks – that he had sufficient evidence to sway the jury in his favour. However, he has a deep and abiding respect for the Irish legal system,’ the Cork solicitor said. ‘He appreciates the fact that the jury gave this case the attention that it did give the case. That is to be acknowledged. But the result is disappointing. We will have to consider the result, consider our options, and at this point in time I think it is appropriate, out of respect for the fact that the decision has just been handed down, that we should be allowed space and time to consider what might arise from here on in.’

  Just two months after the jury verdict, on 12 May 2015, Mr Justice Hedigan addressed th
e issue of costs arising from the marathon five-month action. He ordered that Mr Bailey pay the full legal costs of the action. While no final financial total was offered at the High Court hearing, various legal experts estimated the overall cost of the action at anywhere between €2 million and €5 million.

  Mr Justice Hedigan agreed to place a stay or a suspension on the costs order in the event of Mr Bailey appealing his High Court defeat to the Supreme Court. Few doubted that, similar to the Circuit Court libel action, an appeal would be forthcoming.

  It was submitted to Mr Justice Hedigan that the Garda Commissioner and the State should foot at least 50 per cent of the overall cost of the High Court action. This was argued on the basis that the State had only applied to have matters statute-barred on the sixtieth day of the hearing. Had the application been made at an earlier stage, the costs involved would likely have been dramatically lower, as the action would have been substantially shortened.

  Tom Creed, for Mr Bailey, said substantial court time and cost would have been saved had the State made the statute-barred application earlier than day 60. He said that around 23 days of the court hearing involved matters that had been ruled on by the jury. The costs involved should be based on this fact, he argued. Mr Creed said that, given the manner in which the State had timed their statute-barred application, they should be responsible for a significant portion of the hearing costs incurred as a result.

  Mr Justice Hedigan said such an argument from Mr Bailey was essentially ‘unreal’. He found that, given the serious and extremely grave nature of the conspiracy allegations being levelled by Mr Bailey, the State felt that it was vital and in the overall public interest to allow the detailed claims involved to be aired in an open court. The judge said that while it was unfortunate that the case ultimately took so long, he was satisfied that it had been in the public interest – as well as the garda need – to have each individual allegation dealt with in detail in open court.

  He also noted that if the case had been stopped at a very early stage on the basis of a statute-barred application, there would likely ‘have been an outcry’, given the lengths Mr Bailey had gone to in order to have his allegations dealt with in open court.

  The State, represented by Luán Ó Braonáin SC, opposed Mr Bailey’s costs submission. He argued that the plaintiff or State was fully entitled to make the statute-barred application at any point in the proceedings.

  Mr Ó Braonáin said it was manifestly in the public interest to have such serious allegations against the gardaí dealt with in open court – and that the individual garda members involved had a right to defend their good reputations in open court. He argued that such grave allegations as conspiracy, corruption and inappropriate sexual behaviour were so serious that they fully warranted being dealt with in an open court in the public interest. He also pointed out that Mr Bailey had been aware from a very early stage of the proceedings that the State had raised the issue of a statute-barred limitation in its defence submissions.

  Mr Ó Braonáin said that, ultimately, the High Court had been asked to resolve the central planks of Mr Bailey’s case, which were that gardaí had conspired against him in the du Plantier investigation and that gardaí had threatened or coerced Mrs Farrell into giving false evidence against the journalist.

  Mr Justice Hedigan said it was a complex and detailed case that involved a huge amount of documentation and recordings, all of which were necessary if the central allegations were to be properly dealt with. He found that the nature of the allegations was so serious and had such far-reaching consequences for the rule of law that having them dealt with properly and in open court was very much in the public interest. The public, he ruled, ‘deserved nothing less’.

  Mr Justice Hedigan said he had been presented with no special reasons why the High Court should depart from the long-standing rule that the costs should follow the verdict. The State had won and therefore the costs should go against the plaintiff – Mr Bailey.

  He ordered that Mr Bailey pay the full costs of the hearing. This included all discovery costs, hearing costs, the reserved costs, as well as 50 per cent of a holiday that had to be cancelled by one of the jury members. The State had earlier agreed to foot 50 per cent of the juror’s lost holiday cost.

  Within weeks of the High Court costs hearing, Mr Bailey confirmed that he would challenge the ruling to the Court of Appeal.

  ***

  Almost two years later, on 27 March 2017, Mr Bailey’s challenge opened before the Court of Appeal, where the case was heard by a three-judge panel comprising Ms Justice Mary Finlay Geoghegan, Mr Justice George Birmingham and Mr Justice Gerard Hogan. The challenge took two days to hear.

  Mr Bailey’s legal team had lodged 17 different grounds for appeal – the most important of which was the decision by the hearing judge, Mr Justice Hedigan, not to allow the majority of the issues to be put to the jury on day 62 of the trial on the basis of an eleventh-hour statute-barred submission from the State.

  In a detailed hearing, the appeal judges acknowledged that the case raised important and difficult legal issues. On that basis, it was reserving judgment. Four months later, on 26 July, the Court of Appeal published its ruling.

  It ruled against Mr Bailey on 16 of the 17 grounds of appeal he had tabled. However, crucially, the Court of Appeal did rule in his favour in one area. While initially described as a minor area of appeal, it quickly became apparent that this could pave the way for a fresh High Court case.

  In respect of whether the alleged wrongful disclosure of information by gardaí prior to Mr Bailey’s libel case against eight Irish and UK newspapers in December 2003 amounted to conspiracy, the Court of Appeal ruled that this matter should have gone to the High Court jury to decide. It was sufficient, legal commentators agreed, for Mr Bailey to now seek a new High Court hearing, albeit on much narrower grounds than before.

  Mr Bailey’s grounds for appeal had included submissions that Mr Justice Hedigan erred in allowing the State make a statute-barred application so late in the hearing process and that the judge had incorrectly restricted the evidence that could be offered by key witnesses, including Eamonn Barnes, James Hamilton and Robert Sheehan.

  The State challenged those appeal grounds and, in reference to the perjury warning to Mrs Farrell, said it had to be considered against the entire backdrop of Mr Bailey’s civil case against both gardaí and the State, as well as the actual circumstances of the hearing itself.

  In dismissing the majority of Mr Bailey’s 17 grounds of appeal, the three judges also dismissed a cross-appeal by the State. The judges ruled that such was the scale and overarching nature of the conspiracy alleged by Mr Bailey against gardaí, it was not unfair that the State be allowed to raise a motion for statute-barring aspects of the claim on days 60–62.

  Mr Bailey’s legal team immediately confirmed that they would be reviewing the implications of the Court of Appeals ruling in their favour on one ground of appeal. However, the State also indicated it was also considering the matter.

  The State then asked the Court of Appeal to review its decision on the sole ground of the challenge upheld. This was on the basis that the State claimed an error had been made by the Court of Appeal in referring to an observation made by the High Court judge as a ruling.

  Sensationally, on 14 March 2018, the Court of Appeal overturned its own ruling – meaning that Mr Bailey lost his sole ground for a new High Court case. This Court of Appeal reversal – which was highly unusual – meant that the journalist had now lost his entire appeal against his High Court defeat and no longer had any grounds on which to press for a new hearing.

  Mr Bailey’s legal team had opposed the reopening of the decision on the basis that this was only done in exceptional circumstances – and the challenge from the State did not amount to such. However, the Court of Appeal, in reversing its ruling, said that even if the trial judge had failed to deliver a ruling on the matter, it had not prejudiced the plaintiff in his action. Furthermore, the Co
urt of Appeal said there was not sufficient evidence to support a claim that gardaí had disclosed the information complained of for it to revert to the jury for decision.

  ***

  What wasn’t fully appreciated at the time was that the Court of Appeal ruling meant that Mr Bailey’s legal battles would now switch from Ireland to France. The French had been preparing for a Paris-based prosecution and, critically – from their point of view – this had avoided being damaged by the High Court action for wrongful arrest.

  A French prosecution had slowly but steadily moved from a possibility to a certainty. Mr Bailey had appointed a French legal team and began to consider his avenues of challenge should a prosecution be formally sought.

  In 2016, he had called on the Director of Public Prosecutions, Claire Loftus, to review matters. Ms Loftus was the third director to handle the du Plantier case, after Eamonn Barnes and James Hamilton. Appointed to the role in November 2011, she had previously served as Chief Prosecution Solicitor in the DPP’s office. Mr Bailey had requested that Ms Loftus review the decisions by her two predecessors, based on all the evidence available, not to have him prosecuted. The move was interpreted as an attempt to underline the growing chasm between the Irish and French positions on the case – and to again underline Mr Bailey’s innocence in the matter. Such a review would also effectively preempt any French decision on the Gachon investigation file. Having first ruled out a prosecution in 2001 due to lack of evidence, there was little doubt that the position of the DPP had not changed.

  However, GSOC was yet to issue its report; a GSOC finding in favour of Mr Bailey over the manner in which the garda murder investigation was conducted could jeopardise a proposed French prosecution.

  ***

  The second French extradition request was issued in August 2016, and the Irish courts had begun processing the application. Finally, in June 2017, the latest French extradition bid arrived before the High Court.