A Dream of Death Page 19

  Sitting in Dublin, Mr Justice Tony Hunt ruled on 24 July 2017 that Mr Bailey should not be extradited to France to answer a charge of voluntary homicide over the death of Ms du Plantier. In a stark dismissal of the French application, he described the latest extradition request as an ‘abuse of process’. Mr Justice Hunt said that the Supreme Court had already decided on the matter in 2012. He also noted the fact that the latest French application had ignored the detailed issues already dealt with as part of the 2012 extradition application and the Supreme Court ruling.

  Mr Justice Hunt said that the High Court was bound by the ruling of the higher court – the Supreme Court. He described the Supreme Court ruling as ‘conclusive and binding’. He also noted that the issues at hand had occurred some time ago. Ms du Plantier had died in December 1996, some 21 years earlier. The first French extradition application had been tabled in 2010 and was dealt with by the Supreme Court in 2012. He queried the five-year timeframe between that decision and the latest extradition application.

  ‘Apparently neither the minister nor the requesting authorities considered it appropriate to furnish any information by way of explanation for the elapse of this period of time,’ he stated. The judge said he did not consider the court to have been afforded any adequate explanation for the period of delay involved – in essence, querying why the French or Minister for Justice did not offer any specific reasons for the five-year delay in pursuing a second EAW after the Supreme Court in Ireland rejected the first EAW.

  Mr Justice Hunt noted that there was a major garda investigation into the crime in Ireland and that a detailed file had been submitted to the director of prosecutions. Having considered the file, the DPP ruled that not only was there no basis for a trial but there was no basis for a charge. He pointed out that the specific reasons for this had been aired during the 2012 Supreme Court hearing.

  He said that the current application before the High Court did not materially change anything – and did not actually engage with the historic situation at all. In fact, he said, the new extradition request effectively ignored the fact that the domestic legal process had ruled out any question of a charge. Mr Justice Hunt said it was a ‘highly unusual’ state of affairs.

  Mr Bailey, the subject of the extradition application, was entitled to the protection of Ireland’s Constitution and the laws designed to protect individual rights. He noted that the application involved a very serious matter – a crime for which a sentence of 30 years could be handed down. Few were surprised by Mr Justice Hunt’s ruling. His comments about abuse of process were, however, unexpected – and an undeniable blow to French hopes. Mr Bailey was present for the ruling and was visibly relieved at the outcome. He spoke briefly to reporters assembled outside the High Court. ‘I am pleased with the judgment and grateful to the court. I do not believe that this is the end of the matter. But life goes on.’

  Mr Bailey did comment on the fact that solicitors for the State, which had triggered the action on behalf of the French authorities, were not represented in court for the judgment. This was, he argued, ‘quite astonishing.’ He explained that his life had been rendered a ‘living nightmare’ and that he had endured a ‘form of torture for twenty years, on and off’ by being wrongly associated with the death of Ms du Plantier. Mr Bailey again stressed that he had tremendous sympathy for the family of the French woman but repeated his insistence that he had absolutely nothing to do with her death.

  While the 2012 Supreme Court judgment on Mr Bailey’s extradition garnered headlines for several days in Ireland, the coverage of the High Court ruling in 2017 effectively petered out after 24 hours. Few doubted but that there would be another extradition move by the French. But their third extradition attempt, legal experts indicated, would be after a Paris trial over the circumstances of Sophie’s death. The second EAW was dismissed because it effectively did not vary sufficiently from the first EAW rejected by the Supreme Court in 2012. However, legal experts queried what might happen if a third EAW was issued – but this time on the basis of a conviction.

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  In the meantime, the journalist had other more personal considerations to deal with. An avid writer, his poetry had for years been a source of both comfort and strength for him. In the worst of times, his art had offered him solace and refuge from what he called the ‘nightmare’ of being wrongly pursued by both the Irish and French authorities. Since his arrival in Ireland, he had been writing ‘songs without music’, as he once described his poetry. His poems had featured in arts events across west Cork over the years, ranging from Christmas Day swims to festivals on Cape Clear Island.

  Now, he had completed a special collection of poems, which was to be published under the title The West Cork Way. It was a collection he was immensely proud of, and he had been delighted when he was invited to launch the volume at the prestigious Electric Picnic festival in Stradbally on 3 September 2017. Known for its eclectic mix of music, visual and performance arts, Electric Picnic was famed as the biggest outdoor event of its kind in Ireland. It also served as a final farewell to summer, taking place at the sprawling Laois estate on the final weekend of August or the first weekend of September.

  The invitation came to Mr Bailey via the music magazine Hot Press, which was involved in the programme of events for the festival. In early 2017, the journalist had agreed to a lengthy interview with the magazine about his legal plight and the threat he faced of possible extradition to France.

  The West Cork Way was launched on Saturday afternoon during the second day of Electric Picnic. Mr Bailey read several of the poems and participated in a question-and-answer section with compère Olaf Tyaransen in the Hot Press tent.

  The writings were largely work he had completed in his first five years in Ireland, just before he had been catapulted into the spotlight over the du Plantier murder. The Irish Times carried a preview story from Barry Roche about Mr Bailey’s appearance at Electric Picnic and the type of poems that featured in his new collection. Later, there would be multiple social media postings of Mr Bailey reading his poems and being interviewed about his writings.

  ‘It is a collection of thirty poems, ballads and odes. It is partly autobiographical and deals with my time in Ireland, specifically in west Cork,’ Mr Bailey explained. ‘Each of the poems has a footnote to explain how they came to be born. I chose the title because of the manner in which many people, like myself, have come to west Cork, effectively as “blow-ins” and made their lives here. Many are expat British subjects, like myself, and many eke out a living. They undertake a range of tasks and seasonal jobs to make a living.’

  A large gathering attended the launch and Mr Bailey was clearly delighted with the interest shown in his work: ‘There are a range of topics dealt with in The West Cork Way, ranging from love and life, struggle and strife, the growing of barley and the struggle between préacháns – crows – on a farm in Waterford where they hired me as a human scarecrow. There is material about the collapse of the herring-fishing industry.’

  But the focus always seemed to revert back to the du Plantier investigation and French attempts to extradite him. Mr Bailey told the audience his first arrest by gardaí in February 1997 was horrific. ‘It was shocking. It was surprising. It was aggressive. For twenty-odd years I have been associated with a murder I had nothing to do with. And I have been protesting and doing everything I can to clear my name. I’m still doing it. So long as I have life in me, I will continue to try and clear my name,’ he said.

  He confirmed that he was already working on a follow-up collection of poetry, provisionally entitled The Peninsula Poems, which would offer a journey along three of west Cork’s most famous headlands: Mizen Head, Sheep’s Head and Beara. Other arts projects he was working on included a one-man show and a short film about a west Cork jazz parade.

  It was clear that his writing and arts projects offered relief from the pressures of the never-ending judicial battles he faced. The West Cork Way was proudly stocked at Mr Bailey’
s farmers’ market stall and by a number of outlets across west Cork and Cork city. He was delighted when orders arrived from overseas supporters.

  Although Electric Picnic was a personal triumph for Mr Bailey, legal defeats were again looming on the horizon. In February 2018, the Chambre de l’instruction – the French equivalent of the High Court – found that there was sufficient evidence to allow the proposed Paris prosecution to proceed. This was a major boost for French prosecutors – it signalled that the investigation by Magistrates Gachon and Dutartre was deemed to have met the required standards to warrant a trial hearing in Paris.

  Mr Bailey, via his French solicitor, Dominique Tricaud, immediately indicated that he would challenge the Chambre de l’instruction ruling. Unlike in Ireland and the UK, that appeal would be dealt with in a matter of months – there would be no major delay. Sophie’s family had said they were hopeful the long-awaited trial would take place in 2019, and that now appeared highly likely.

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  It was against this backdrop that the Amazon-owned media outlet Audible confirmed it would make available a special thirteen-part podcast called West Cork. The programme was modelled on the smash-hit Serial and represented the first major podcast of its type focusing on a crime that had occurred in Ireland.

  Researched and produced by Brian Reed, Sam Bungey and Jennifer Forde, the series had been in preparation for two years. Critically, it involved the cooperation of Mr Bailey. He allowed the programme-makers unprecedented access to his life, which even included travelling with them in a taxi to one of his High Court hearings in Dublin in relation to the ongoing French extradition bid. From Audible’s point of view, the release couldn’t have been more perfectly timed – the podcast hit the Internet exactly one week after the Chambre de l’instruction ruling.

  The series was remarkable in the access it had both to Mr Bailey and to his UK connections, ranging from former work colleagues to friends and neighbours. It also had major contributions from judicial officials connected with the two-decade-long investigation, including forensic officers who had worked on the original garda investigation. But the Audible series made headlines in Ireland largely because of a contribution from the former DPP James Hamilton about the ongoing French investigation and the view taken of it by some within Irish legal circles.

  It had been a predecessor of Mr Hamilton, Eamonn Barnes, who had ruled out a charge being brought against Mr Bailey, having studied the garda case file and a special analysis conducted by Robert Sheehan, one of the DPP’s own legal staff. Mr Barnes’s assessment of the file – as would repeatedly be cited over the years – was its total lack of evidence in the murder case of Sophie Toscan du Plantier.

  Mr Hamilton was nonplussed about the French decision not to accept the DPP case file ruling and to press ahead with their own domestic investigation. The former DPP didn’t pull his punches in relation to how he viewed the treatment of Irish agencies and institutions by the French in the conduct of their subsequent investigation.

  He argued that the French had essentially shown ‘contempt’ towards the Irish judicial system. He pointed out that Paris investigators, while operating in Ireland, had never made contact with the DPP’s office either as a courtesy or for consultation.

  ‘Not a phone call, not a letter – nothing. To be quite frank, I think it is extraordinary. That is a very mild word and I won’t say any more than that. It shows a contempt for the office of the Director of Public Prosecutions, in my view. It shows an arrogance and a contempt,’ he stated in an interview for the podcast.

  Mr Hamilton also rejected the idea – possibly a reference to gardaí who had strongly supported a charge – that Ireland should have proceeded with a prosecution over Ms du Plantier’s death. He said that, under Irish law, prosecutions must be grounded in a careful assessment of the available evidence:

  It is a very heavy thing to charge somebody with an offence. It is something you do not do lightly. Sometimes people say, ‘Well, why don’t you just run the case to the court and let the court decide?’ We have always taken the view that that would be quite an irresponsible thing to do. To put a citizen through the ordeal of a trial merely so that public curiosity can be satisfied? Because that is what it would amount to.

  Ireland, like the UK, operates an adversarial system, in which evidence is carefully weighed and tested. In France, a completely different legal system applies. This has its roots in the old Napoleonic Code, which allows greater leeway to judges over how matters relating to evidence and witness statements can be handled.

  Sophie’s family – including her son – said the French prosecution was ‘very welcome’ and urged everyone in Ireland to support it. ASSOPH bluntly said that Ireland must comply with its obligations under European judicial cooperation in the forthcoming Paris trial and its outcome. ‘It is like the train – when the train is late. Then the train arrives so it is a matter of time,’ Mr Baudey-Vignaud said. ‘It is very good news – it is news that we have waited a very long time for.’

  In May 2018, the French Supreme Court moved as quickly as had been expected in delivering a verdict on Mr Bailey’s challenge to the proposed Paris trial. The court rejected the appeal for the trial to be halted and the ruling of the Chambre de l’instruction from three months earlier to be set aside. This appeal had been the final legal avenue in France open to Mr Bailey to prevent the trial taking place.

  I was covering a teachers’ conference in a Cork hotel when I received a phone call from a grave Ian Bailey. He confirmed he had just lost his final avenue of recourse in France. He admitted that to me that even the promise of a European Court of Human Rights challenge to the French prosecution would not now likely halt the planned Paris murder trial. He briefly dictated an agreed statement for the following day’s Irish Independent. Other Cork-based journalists received similar calls.

  I have been informed by my French lawyer, Dominique Trichaud, that I have failed in the French Supreme Court in my challenge to the decision to charge me with the murder of Sophie Toscan du Plantier 22 years ago. Mr Trichaud said he was very surprised at that decision.

  I am less surprised, although clearly disappointed, that a prosecution repeatedly rejected by the Irish authorities could make muster in France. I am also angry that as part of the French investigation somebody in authority in Ireland made the decision to not inform me that I had the right to participate in the French investigation.

  My French lawyers will in due course take my challenge to the false allegation that I am somehow unexplainedly connected with the murder of Sophie Toscan du Plantier to the European Court of Human Rights. Even if I am tried for murder in France and found guilty under their Napoleonic Code of law all they will have done is convict an innocent person and merely managed in France what the members of An Garda Síochána tried to and failed.

  It was obvious that the French decision, although expected, was a disappointing knock to the journalist. Having fought one Circuit Court case and two High Court hearings over the previous 15 years, he now faced the prospect of a criminal trial in France and all the unknowns it might entail, not least in terms of the impact any Paris conviction might have on Ireland’s stance on his extradition.

  Mr Bailey’s solicitor, Frank Buttimer, was scornful in his assessment of what was now likely to happen in Paris. ‘It is appalling. It has destroyed his life. It is nothing more than a show trial,’ he said.

  In 22 years of speaking with Mr Bailey, I cannot recall a time when I felt he was under more strain. From the tone of his voice to the nature of the brief conversations we had, I felt he was under incredible stress. It seemed obvious to me that developments in France were now dominating his daily existence. Even after the 2001 domestic violence arrest and in the aftermath of the 2003 libel trial defeats, I didn’t detect the tension that now seemed to be exerting a vice-like grip on him.

  Nevertheless, he attempted to put on a brave face in the handful of interviews he gave before the Paris trial opened. In every inter
view, Mr Bailey was adamant that the French were going to find him guilty despite the fact that Ireland and Irish law considered him an innocent man. In one interview he said that the events in Paris represented a ‘horrible and cataclysmic shift in the tectonic plates of my life’.

  In an interview with The Guardian he said that the French were ‘going to bonfire me … It feels like medieval torture. I didn’t do it. I had nothing to do with it. In Paris, all they will do is convict an innocent man. But I have just got to stay calm. If I do go down, I’ll go like Nelson at Trafalgar, with both barrels smoking. My number one priority is protecting my sanity. I am actually quite relaxed at the moment. I do the Lord’s Prayer. I meditate. I find creative outlets.’

  He said that he was content with his life in west Cork and only wanted to leave Ireland under one set of circumstances: ‘Hopefully I will be leaving in a coffin, rather than on a plane in handcuffs.’

  12

  GSOC

  In August 2018, just after Mr Bailey had lost his final avenue of challenge to his impending trial in France and and had flagged a challenge to the European Court of Human Rights, the findings of the GSOC investigation were published.

  A GSOC finding in his favour would be a potent weapon to delay or even halt the impending French trial: Mr Bailey would be able to make a powerful argument that any French action against him was based on a flawed investigation in Ireland.

  The GSOC complaint had been formally lodged in December 2011 but the probe had been stalled for a number of reasons, both legal and procedural. It was also unavoidably delayed by the Commission of Inquiry conducted by Mr Justice Nial Fennelly, which dealt with the recording of phone calls at Bandon Garda Station and other garda stations nationwide. That report wasn’t completed and released until 31 March 2017, and GSOC wasn’t ready to release its findings until 2 August 2018 – more than three years after the conclusion of Mr Bailey’s marathon High Court claim and over six years after the review first commenced. Under Section 103 of the Garda Síochána Act 2005, the entire 36-page report was released to the media and was also published on the GSOC website, where it remains for public viewing.