Bailey appeal for Supreme Court over ‘flawed’ evidence
Published 13/01/2012 | 14:38
NEW evidence criticising the garda investigation into the murder of film-maker Sophie Toscan du Plantier will go before the Supreme Court on Monday.
One-time suspect Ian Bailey won a legal challenge to have recently released state documents admitted as part of his appeal against extradition to France, where he is wanted for questioning over the 1996 murder in Cork.
The five-judge Supreme Court ruled the fresh evidence claiming the murder probe was flawed and prejudicial will be part of a three-day appeal, starting on Monday.
But they rejected his barrister's application for the entire case to be reheard in the High Court.
Mr Bailey's extradition was ordered by the High Court last summer.
The 54-year-old's legal team had applied for the courts to have access to state documents which say the original criminal investigation was tainted by "garda misbehaviour of the lowest standards".
The new material was provided by the State to Mr Bailey's lawyers last November and included a 44-page critical review of the conduct of the murder investigation and the reasons why the former director of public prosecutions (DPP) decided not to prosecute.
It came to light when Eamonn Barnes, now retired, emailed authorities dealing with the extradition to tell them about the existence of his 2001 review.
The court heard Mr Bailey's legal team had been told the Attorney General, Marie Whelan, felt the material was "very significant" and may be something Mr Bailey will rely on, while Justice Minister Alan Shatter believed that in the interests of justice they should have it.
Martin Giblin, senior counsel for Mr Bailey, said the documentation would have supported his arguments there was no evidence against his client and that the French request to extradite him was an abuse of process as it was based on a flawed garda investigation.
"When in the High Court we didn't know the reasons for the DPP not to prosecute," said Mr Giblin. "We didn't know if it was a technical problem.
"We now know as a result of the documents the decision not to prosecute was firmly rooted in his view there was no evidence whatsoever against Mr Bailey."
Mr Giblin said Mr Barnes believed the investigation was prejudiced and biased.
"They are very very strong words," he added.
"Our argument that the French warrant (for Mr Bailey's extradition) was tainted is much stronger now."
Robert Barron, senior counsel for the Minister for Justice, told the court he had received no instructions on how to proceed with the case.
However, he maintained the request to have the documents allowed in court should be rejected on the grounds they were not relevant and did not change the original argument that the investigation and French warrant were tainted.
Mr Barron also accused Mr Bailey's legal team of a lack of diligence when seeking disclosure of documents.
Mr Justice Adrian Hardiman told the court he could not see how the State was contending the material was not relevant or admissible after handing it over.
Chief Justice Ms Justice Susan Denham, presiding, said the judges had decided the material should be admitted as new evidence in the Supreme Court appeal hearing.
The reasons will be outlined in a written judgment at a later date, she added.
Mr Bailey, who was in court, denies any involvement with the murder of Ms Toscan du Plantier. The 39-year-old's body was found near her holiday home in Schull, Co Cork, on December 23, 1996.
He was arrested and questioned twice by gardai, but no charges were ever brought.
Under French law, authorities can investigate the suspicious death of a citizen abroad but they cannot compel witnesses to go to Paris for questioning.
An investigating magistrate, Patrick Gachon, was appointed in Paris to conduct an inquiry into Ms Toscan du Plantier's death after the DPP announced nobody would be charged following a Garda investigation.