A Dream of Death Page 20

  GSOC’s final report did not include the names of any gardaí against whom allegations were levelled or specific witnesses who had assisted the commission with its investigation:

  In light of the fact that the decision of the Commission is that no conduct of a criminal or disciplinary nature has been revealed in this investigation it was decided it was not necessary to name the various parties. It should be noted that where members of the Garda Síochána have retired it is not possible to bring proceedings under the Garda Discipline Regulations and a number of the original gardaí involved in the investigation in 1996 onwards had retired by the time the complaint was made to GSOC in 2011 and 2012. Other members had died in the interim period.

  GSOC noted that its investigation had been complicated by multiple different legal and ancillary factors, not least the Fennelly Commission:

  The various and complicated court proceedings and related investigations, such as the Fennelly Commission have added to the investigative process for GSOC. The Commission was not anxious to complete the investigation in the event that matters relevant to its inquiries came into the public arena which could be further investigated by GSOC.

  The Commission has also been informed that the garda investigation into the unlawful death of Ms du Plantier is still open as no one has been charged with her death in this jurisdiction. GSOC therefore is conscious that any information released should not jeopardise any future proceedings, if indeed same arises.

  This appeared strange to many who had closely followed developments with the du Plantier case as any prospect of a prosecution in Ireland seemed critically undermined, from the Cork libel action through to the revelations of the High Court wrongful arrest case and the fact that the French police team under Magistrate Gachon had been given access to the full garda murder file. In light of all of this, it appeared to many that no prosecution could ever now be contemplated in Ireland. But it was a very different story in France.

  The GSOC investigation examined three main strands of complaints in respect of the du Plantier investigation. The first two strands involved the various detailed complaints from Mr Bailey and Ms Thomas. The third strand involved complaints lodged by Marie Farrell. The complaints from Ms Thomas and Mrs Farrell were both lodged in 2012.

  Mr Bailey alleged that some of the garda members involved in the du Plantier murder case had conducted a corrupt investigation that had focused on the Manchester-born journalist. It was also claimed that both Mr Bailey and Ms Thomas were the victims of an unlawful arrest in 1997.

  Mrs Farrell claimed that she had signed five or more blank statements, which were then ‘subsequently created to support the false narrative’ by unnamed gardaí. It was further alleged that ‘the case against Mr Bailey has been based on this false narrative and that the so-called “evidence” garnered by a large number of officers … was falsified, forged and fabricated with one overriding intention: to “frame Mr Bailey”.’

  Arguably the most damaging accusation was that the ‘new information which has now come to light is indicative and evidence of a concerted, determined and persisting ongoing conspiracy, by ex- and serving garda members, to pervert the course of justice in this case’.

  GSOC agreed an investigation strategy aimed at dealing with the key allegations from Mr Bailey, Ms Thomas and Mrs Farrell in tandem. This began with an extensive documentation request to An Garda Síochána. A lengthy review period was then provided to allow GSOC officials to meticulously study the files and reports received by the investigating gardaí in west Cork.

  From there, GSOC investigators adopted a three-phase strategy in handling their review. This involved, first, re-interviewing all key witnesses in the original garda murder investigation whose evidence in any way involved Mr Bailey. Second, there would be a re-interviewing of all key witnesses involved in Assistant Commissioner Ray McAndrew’s review, which had begun in late 2005. The McAndrew Report had never been made public and it would not be included in the published GSOC investigation summary. Third, and finally, all surviving gardaí who had held key positions in the original murder investigation between 1997 and 2001 would be re-interviewed.

  GSOC officers first sought garda files in March 2012 and received the first of the documentation that November. The remainder of the documentation sought was provided in January 2013. There were setbacks for the GSOC officers, most notably in relation to one individual who was identified as a key witness in respect of some of Mr Bailey’s allegations:

  Extensive efforts were undertaken by GSOC to trace the whereabouts of a person considered a key witness in this complaint investigation. This witness was eventually traced to a location in England and in February 2014, GSOC investigators attended a pre-arranged appointment with the witness at an agreed location with the intention of obtaining a witness statement from the witness. The witness failed to provide the statement as requested.

  The GSOC investigators found no evidence of high-level corruption within the garda force in west Cork – a finding that dominated coverage of the report’s publication. The GSOC findings also made headlines in France – and were hailed by the French as hugely significant for their ongoing probe.

  While other elements of the GSOC report did not make for pleasant reading for either the government or the gardaí, its core finding had failed to provide Mr Bailey with the verification he sought. Crucially, the GSOC report would not serve as an impediment to the French bid to mount a Paris murder trial.

  GSOC reviewed large amounts of documentation and re-interviewed witnesses in respect of this allegation which was central to the GSOC investigation. There is no evidence to suggest that Ian Bailey was ‘framed’ for the murder or that evidence was falsified, forged or fabricated by members of the Garda Síochána.

  All relevant documentation was reviewed by GSOC and relevant witnesses were re-interviewed. Whilst concerns are raised by GSOC later in the body of this report in relation to the management of the garda investigation, there was no evidence of corruption in support of this allegation.

  The GSOC report noted that, despite major forensic tests being conducted on the basis of Mrs Farrell’s allegations about the blank documents she signed, her account could likewise not be supported by evidence:

  The original statements made by Marie Farrell were seized by GSOC Designated Officers during this investigation and submitted for forensic analysis which included ESDA 2 testing and ink analysis [for dating and matching purposes]. Nothing was found of evidential value in this testing to support this assertion.

  GSOC examined all relevant documentation and re-interviewed witnesses in respect of this allegation. In addition, original materials were seized by GSOC and submitted for forensic examination.

  During the course of the GSOC investigation, the existence of recorded telephone calls into and out of garda stations in the Cork area became known and these were also secured and examined by GSOC. These recordings would not be supportive of any suggestion of intimidation towards Marie Farrell by any member of the Garda Síochána at that time.

  Despite its overall finding that there was no evidence to support allegations of a garda conspiracy or officers acting to try to ‘frame’ Mr Bailey, elements of the GSOC report were hugely embarrassing for the west Cork force, especially in relation to the management of a major ongoing murder investigation with international dimensions.

  GSOC raised what it called ‘grave concerns’ over changes to critical garda reports in the investigation into the killing of Sophie Toscan du Plantier. While never specified, it was clear these concerns were procedural and related to how key elements of the investigation administration were conducted. This followed a detailed analysis of the so-called ‘job books’. These are reports on major investigations that gardaí maintain and update. These books are specially bound with pages individually numbered for verification and cataloguing reasons. But some of the west Cork job books’ pages were mysteriously missing.

  It was confirmed that the jobs book was onl
y ever in the possession of gardaí. In one case it appeared that the pages had been deliberately removed. In another case, pages were missing from a report that dealt with a time period when gardaí first seemed to take an interest in Mr Bailey

  It was also noted that while the name of Ian Bailey appeared in jobs book 1 at a relatively early stage of the investigation, the first formal nomination of him as a suspect was contained at job number 166, on page 9 in book 2. The next two pages had been seemingly ripped or cut out of the book, leaving a rough, torn stub. Other than the first few pages of the book, there appeared to be no other pages missing. The book continued at page 12.

  GSOC also focused its concerns on what appeared to be deliberate changes to official garda documents, including station records, in relation to the murder investigation. The revelation that entire pages were missing from specific vital documents was a focus of significant media attention on the GSOC report.

  ‘It would not be possible for pages to simply fall out of the book by accident or for them to be removed – this would have to have been a deliberate act,’ the report noted.

  On 13 June 2013, following a request by GSOC to have sight of the original suspect files in the Garda Síochána murder investigation, it was reported by a chief superintendent to a GSOC (designated) officer that five of the suspect files requested were in fact missing. The missing suspect files included [those for] Ian Bailey and Jules Thomas as well as three other files on suspects.It was further reported that the missing suspect files could not be located for the McNally Review group led by Chief Superintendent McNally in 2002.

  In other words, key files in respect of the du Plantier investigation had vanished just over five years after Sophie’s killing. But the GSOC findings grew even more embarrassing for west Cork gardaí: the report also highlighted what it termed a lack of administration and management oversight of key aspects of the du Plantier investigation. Many were shocked to realise that a total of 139 original witness statements taken in relation to the du Plantier investigation were either missing or not in the possession of the Garda Síochána.

  On 25 September 2013, following a written request by GSOC, documentation was received from the Garda Síochána which outlined an extensive list of significant documents including witness statements and 22 exhibits that had gone missing and could no longer be located by An Garda Síochána along with when they were noticed as missing and what steps the Garda Síochána had taken to locate them. It was reported to GSOC that extensive searches had been carried out by An Garda Síochána for the missing items.

  Other concerns were raised about potential evidence vanishing at unknown times since December 1996. Given the high-profile nature of the du Plantier investigation and the international interest in it, the fact that such exhibits went missing was identified as an issue of serious concern.

  Incredibly, some of the exhibits now missing from garda storage included ‘a blood-spattered gate taken from close to where Madame Toscan du Plantier’s body was found’. Quite understandably, many were shocked at how an entire metal gate could vanish from supposedly secure garda storage – particularly when it appeared to have bloodstains from the killing.

  Other items that had vanished included the French wine bottle found three months after the murder in a field next to the murder scene; a black overcoat belonging to Mr Bailey; the original interview memo of Jules Thomas following her arrest in 1997; an original witness statement from Mrs Farrell provided on 5 March 2004; and an original witness statement from Jules Thomas dated 19 February 1997.

  The GSOC revelations certainly outlined a saga of garda operations that did not make comfortable reading for anyone, from officers to ordinary citizens. Although embarrassing, these incidents were not found to be indicative of a conspiracy within the west Cork police force. What had been found, however, were mistakes, haphazard administration and evidential failings, particularly in relation to the preservation of key exhibits.

  The police watchdog said it did not find the garda decision to question Mr Bailey to be unlawful or corruptly motivated. ‘A number of factors led to Ian Bailey being identified as a suspect at an early stage of the murder inquiry … His subsequent arrest and the arrest of his partner, Jules Thomas, therefore, could not, as the complainants allege, have been construed as unlawful or illegal,’ it ruled.

  In essence, GSOC found that officers had been well within their powers and operational guidelines in deciding to arrest and formally question Mr Bailey. The report noted that the officers involved had cited a number of factors for considering Mr Bailey as a suspect – although these specific grounds were not set out in the report.

  GSOC also found no indication that Mrs Farrell had been forced by gardaí into making specific statements about Mr Bailey.

  GSOC found no evidence that Marie Farrell was coerced or intimidated (as alleged by Ian Bailey and Marie Farrell) into making false statements against Ian Bailey; in fact, a phone call listened to in the course of the investigation could be seen as evidence of a relationship between Marie Farrell and an investigating garda that was not coercive. While it does certainly appear that journalists were in possession of information in advance of Ian Bailey’s arrests, GSOC was unable to establish the source of the media’s information.

  Journalists questioned as part of the GSOC probe had, in keeping with their commitment to protect their sources, declined to reveal where specific information about the case had come from if it had been given in confidence. A key complaint from Mr Bailey had been that some gardaí were deliberately leaking information to the media about him, effectively using the media to increase pressure on him.

  There is no evidence sufficient to sustain either a criminal or disciplinary charge available in respect of this allegation from the documentation reviewed by GSOC and the witnesses that were interviewed. It does seem that certain elements of the media came to be in possession of information in respect of aspects of the garda investigation but it has not been possible to say that if this was leaked by the Garda Síochána as alleged, when this may have been done and by whom, to any evidential standard.

  However, GSOC examined the telephone conversations recorded at Bandon Garda Station in respect of the allegations that some garda officers were briefing the media. ‘A level of contact was noted between journalists and Bandon Garda Station. This contact is, in the main, enquiries in relation to progress in the murder investigation. No specific inappropriate disclosure of information by garda members to journalists was found by GSOC investigation in the phone calls. However, conversations between garda members indicated a concern that there were members of the press being briefed.’

  The report also noted that a total of ten digital audio tapes were supplied to telecommunications experts for analysis in respect of the Bandon Garda Station calls that were recorded. The Fennelly Commission found that just 0.66 per cent of all the available recordings related to the du Plantier investigation.

  There are ten tapes available from the entire period of the investigation. The recordings begin in March 1997 – some three months after the murder – and span to 2003. There are six tapes for the whole of 1997, three for 1998 and one for 2002/2003. The tapes can only give a snapshot and incomplete picture of the investigation. There are significant gaps in the information available on the tapes due to the randomness of the available tapes. Therefore, the significance of the material on the tapes is reduced. There are over 40,000 calls recorded on the available tapes. Some 282 of the calls were considered of relevance to the murder investigation.

  GSOC stressed that, given the extent of their inquiry and its findings, no further action would now be taken. However, the watchdog repeated its concerns about how sensitive case material was handled.

  It is a matter of grave concern to GSOC that a large number of original statements and exhibits relating to the murder investigation are missing. It is GSOC’s view that a lack of administration and management are the likely explanation for this state of affairs. GSOC
found no evidence of corruption.

  From enquiries conducted by GSOC with members of the McNally Review team, it would appear that the [missing] jobs book pages in question may have been removed from the book some time after December 2002 as their absence was not noted during the McNally Review and would have been the subject of comment had they been noticed. (The McNally Review team had access to the original jobs books as part of their review and reported in December 2002.)

  In addition, the significant amount of missing original witness statements and physical exhibits in the garda investigation suggested there was difficulty in the administration and management in the incident room (even when viewed through the lens of the time) as opposed to clear evidence of corrupt practice. The witness statements provided to GSOC from the senior garda members did not indicate clearly who was in charge of the investigation from the very outset and throughout the enquiry and who was responsible for making the strategic decisions (including the arrest plans).

  Garda bosses were quick to respond to the GSOC criticisms. An official statement from garda management acknowledged the findings and insisted that a lot of the issues had been addressed.

  ‘There have been significant developments in the investigation of crime since the incident subject of the GSOC report occurred in 1996,’ a garda statement stressed. ‘These include the establishment of the crime training faculty at the Garda College which is tasked with identifying best international practices.’ Gardaí also said areas of concern identified by GSOC no longer applied because a ‘significant’ new management system for property and exhibits had already been rolled out.