Image credit: The Irish Times
Extraordinary case
Last week, a French court convicted Ian Bailey in his absence and sentenced him to 25 years for murder. This is merely the latest step in what is surely the most bizarre and unprecedented case in the history of Irish criminal law. Although the trial, conviction and sentenced occurred in France, they all relate to an Irish murder that occurred in West Cork more than 22 years ago. The victim was a French woman, Sophie Toscan du Plantier, who was brutally beaten to death outside her holiday home in West Cork in the early hours of a December morning in 1996.
The Garda Síochána (the Irish police) very quickly settled on Ian Bailey as their prime suspect. He was (and still is) permanently resident in the local area. So, it was very much an Irish murder which, in the normal course of events, would be dealt with through the Irish criminal process. The manner and fact of its diversion through the French trial process raise profound concerns of a miscarriage of justice from the effects of a ‘mixing and matching’ of Irish and French criminal procedure. They also raise serious concerns about the manner in which the European arrest warrant (EAW) has been implemented in Ireland, and the role of the Irish government in facilitating the French trial of an Irish murder.
Insufficient evidence to charge
A critical feature of the French trial is that it was based essentially on the evidence gathered by the Garda investigation. The Irish DPP considered the evidence in the Garda investigation file on several occasions, and each time he decided that it did not disclose sufficient credible evidence to warrant charging Bailey with the murder. Most unusually, the DPP at the time subsequently described the Garda investigation as “thoroughly flawed and prejudiced” against Bailey.
French prosecution
When it transpired that a prosecution was unlikely in Ireland, the French authorities asserted jurisdiction in the matter on the basis that, under French law, the murder of a French citizen anywhere in the world can be prosecuted in a French court irrespective of the nationality of the accused. Invoking the EU’s mutual legal assistance arrangements applicable at the time, they requested the Garda investigation file on the case. Incredibly, this was granted by the Irish Department of Justice, even though it clearly concerned a domestic Irish crime which was still under active investigation by the Garda. Contrary to the Irish DPP’s assessment of the evidence in the Garda file, a French examining magistrate concluded that it disclosed sufficient evidence to warrant charging Bailey with the murder.
Differences in national procedures
A vital point to note here is that the French magistrate’s assessment of the evidence in the Garda file will likely have been conducted within the norms of French criminal procedure, while the DPP’s assessment will have been conducted within the norms of Irish criminal procedure. The difference is instrumental not just in explaining why they reached such conflicting decisions, but also in generating a serious risk of a miscarriage of justice.
In Ireland the criminal investigation is essentially the exclusive preserve of the police who enjoy extensive powers and freedom to gather evidence in a loosely regulated environment. They are not supervised by an independent prosecutor or judicial authority. This, of course, enhances the risk of the police gathering evidence that is false or unreliable, and suppressing evidence that is favourable to the defence. The risk is offset by checks and balances that kick in later in the process in the form of relatively stringent admissibility rules and accusatorial procedures. These will help to filter out Garda evidence that is unreliable or gathered unfairly. The DPP will have conducted his assessment of the Garda file with these checks and balances in mind.
In France, by comparison, the police investigation stage is conducted under the direct supervision of a public prosecutor or investigating magistrate. This helps to minimise the risk of false or unreliable evidence getting into the police file in the first place. Equally, it renders it less likely that evidence favourable to the defence will be left out. Accordingly, there is not the same need to filter the evidence in the police file through stringent admissibility rules and accusatorial procedures. In effect, the checks and balances are distributed differently in the Irish and French criminal processes.
Effects of ‘mixing and matching’
The problem in the Bailey case is that the police file was compiled under the loosely regulated Irish investigation and then transplanted unfiltered into the French prosecution and trial process. Transplanted unfiltered into the French prosecution and trial process, however, it is hardly surprising that it received a wholly different interpretation to that reached by the Irish DPP. This arbitrary ‘mixing and matching’ of two distinct criminal procedures distorts the organic integrity of each. When an element of one is taken out of its natural home-setting and placed in the alien environment of the other, it can produce an unplanned, hybrid, criminal process.
There can be little doubt that Bailey has suffered unfairly through being subjected to such a hybrid process in which he was denied the benefits of the checks and balances that would have applied had he been dealt with exclusively under one or the other. This can be illustrated by a brief overview of the Garda evidence which was used to secure his trial and conviction in France, even though it was not sufficient to justify a prosecution in the Irish process under which it was gathered.
The primary evidence in the Garda file against Bailey consisted of his own informal ‘admissions’ to the murder, an ‘eye-witness’ identification of Bailey placing him near the scene of the crime in suspicious circumstances and third party allegations that Bailey new details about the murder before they were publicly available. None of these sources of evidence can withstand the scrutiny they would have received in an Irish trial. Indeed, they did not even withstand the scrutiny of the Irish DPP.
Informal Admissions
The Garda file includes statements from several witnesses apparently claiming that Bailey had made informal admissions to be the murderer in conversations with them. It is quite clear from those conversations, however, that the “admissions” were sarcastic (or black humour) comments that were not meant to be taken seriously. That is how Bailey explained them to the Garda, and that is how the DPP interpreted them. After examining all of the statements closely in their respective contexts, the DPP described them variously as: reeking of “sarcasm not veracity”; the “antithesis of an admission”; “dangerously unreliable”; or of negligible weight. Accordingly, none of the admissions can be described as being persuasive of guilt. If admitted in evidence at all, they would carry very little weight in an Irish criminal trial. Only one of these witnesses actually appeared to give evidence at the French trial. Nevertheless, the French court considered the statements to be cogent evidence of Bailey’s guilt.
The ‘Eye-Witness’ Account
An eye-witness identification is notoriously susceptible to mistake, especially where it is a fleeting identification, or one made at night or in circumstances of low-visibility. In an Irish criminal trial, the judge must give the jury a warning about the risk of mistaken identity in respect of such evidence. The alleged eye-witness in Bailey’s case did not see him committing the crime, nor even place him on the victim’s property at the time of the crime. Instead, she claims to have seen a man, whom she later identified as Bailey, on the road near the victim’s property in the early morning of the murder.
There were several factors which undermined the reliability and veracity of this evidence. The identification was made from a moving car at night on a dark country road. The person allegedly seen by the witness had his two hands up to the side of his face. The witness did not know Bailey at the time. She claimed that he was the same man that she saw outside her shop in the town a few days earlier, but Bailey did not match that man in height or build. She also claimed that she saw the same man on the road thumbing a life outside the town on the morning before the murder, but that man turned out not to be Bailey. It seems that she only identified the person as Bailey after having been shown a video of Bailey by gardaí for that purpose. Another concern is that the witness has always refused to identify the person whom she was with in the car at the time, and initially lied in her statement to the Garda to conceal the fact that she was having an extra-marital affair with him. Bailey has always denied being anywhere near the victim’s home at the time in question.
The combination of these factors, and others, led the DPP to conclude, unsurprisingly, that this key witness’ testimony is unreliable. Subsequent events support that assessment. The witness subsequently withdrew her statement, alleging that it had been extracted from her under pressure by gardaí threatening to expose her extra-marital affair. In later Irish High Court civil proceedings, she proved to be a wholly unsatisfactory witness. When pressed on the many contradictions in her evidence, she said that “she was getting confused with fact and fiction” and was “mixed up”. Shortly after that, the trial judge took the most unusual step in the presence of the jury of giving her a warning on the risk of perjuring herself. Nevertheless, the French court accepted her statement in the Garda file as cogent evidence of Bailey’s guilt.
Prior knowledge of the murder scene
The Garda file also contained statements from a few journalists and others which the Garda interpreted as establishing that Bailey was in possession of prior knowledge and material relating to the murder which only the murderer was likely to have. The DPP considered that these statements simply did not match the independently established facts, and were exposed by those facts as being false, mistaken or unreliable. The DPP also found that the Garda file omitted other witness statements which exposed the evidential weaknesses in many of the key statements that were included. Once again, however, the French court attached significant weight to the latter as evidence of Bailey’s guilt.
Forensic evidence
Bailey consistently denied any involvement in the murder. He cooperated fully with the Garda investigation, and voluntarily submitted to being photographed, fingerprinted and having blood and hair samples taken while in Garda custody. Despite the bloodied and frenzied nature of the violent attack in a briar strewn area that left about 50 wounds and briar scratches on the victim’s body, no forensic evidence was found linking Bailey to the crime scene. Had Bailey been the killer it is inconceivable that he would not have left traces of blood, skin, clothing, fibres or hair at the scene. The Garda file did contain statements to the effect that Bailey was seen to have scratches on his arms in the days following the murder. The DPP, however, found that these were more consistent with Bailey’s account that they were incurred by killing turkeys and climbing a tree to cut down the top for a Christmas tree. The French court, however, preferred the Garda version at face value.
Other evidential matters
It must also be said that the credibility of the case constructed by the Garda was undermined by some of the methods they used in the investigation. These included presenting Bailey publicly as a ruthless and unrestrained killer who might strike again in the local community. This depiction of Bailey is astounding given that the Garda did not present any cogent evidence linking him directly to the crime or as a murderous threat to the local community. The DPP considered that the Garda action could have played a part in witnesses re-interpreting innocent or innocuous conversations with Bailey as something more sinister and indicative of his guilt. Separately, there is evidence that the Garda gave clothes, tobacco and money to a local destitute drug abuser in an attempt to persuade him to befriend Bailey to see if Bailey would say something incriminating about the murder. It would also appear that they attempted to apply pressure unlawfully on the independent DPP to have Bailey charged.
Equally disturbing is the fact that a substantial body of evidence in Garda possession has gone missing. Incredibly, this includes a blood-spattered gate recovered from close to where the body of the victim was found, a French wine bottle found in the field next to the murder scene, 139 original witness statements (including from some of the central witnesses) and five files on suspects (on Bailey, his partner and three other suspects). Several critical pages from the contemporaneous Garda record book of the progress of the investigation were deliberately and carefully cut out of the book while it was in Garda possession.
These aspects cast a serious cloud over the credibility of the Garda investigation and the evidence they compiled against Bailey. If he was tried in Ireland, they would be used effectively to discredit the prosecution case. Since they did not form part of the police file, they did not feature in the French trial.
Conclusion
What emerges from all of this is that the Irish police investigation into an Irish murder did not secure sufficient credible evidence against a suspect even to warrant putting him on trial in Ireland, let alone to secure his conviction. The legitimate and necessary checks and balances in Irish law and procedure would have avoided the suspect being convicted unjustly on the basis of the unadulterated police file. By lifting that file and inserting it unfiltered into the French prosecution and trial process, the checks and balances that would otherwise have been applicable to it are lost. Insofar as the French court seems to have accepted the ‘evidence’ in the Garda file at face value and isolated from the context in which it was obtained, it is difficult to avoid the conclusion that Ian Bailey is the victim of a serious miscarriage of justice.
The next step in this extraordinary case seems to be (another) French European arrest warrant (EAW) for Bailey’s surrender to serve the 25-year sentence in France. That, in itself, presents quite an extraordinary situation. In effect, it will be asking the Irish High Court to surrender an Irish resident to serve a sentence of imprisonment in France for an Irish murder, in respect of which the Irish DPP has decided there is insufficient credible evidence even to charge him. The fact that such an application is even tenable can be attributed to the unusual nature of the EAW instrument, coupled with the even more unusual manner in which Ireland has implemented the relevant EU legislation in Irish law (a disturbing issue in itself, see https://www.irishtimes.com/opinion/ian-bailey-case-heading-towards-miscarriage-of-justice-1.3903137).
A further twist is added by the fact that the Supreme Court refused to surrender Bailey in 2012 pursuant to an EAW aimed at putting him on trial in France. The High Court emphatically rejected a second French attempt in 2017. Presumably, a third attempt will make its way to the Supreme Court, and possibly from there to the European Court of Justice or the European Court of Human Rights. Even after more than 22 years of oppressive investigation, litigation and an apparent miscarriage of justice, there appears no end in sight to this bizarre and unprecedented case.
Download the June 2019 edition of Criminal Justice Notes