Bailey's choice: go to France to stand trial or resist extradition
The former suspect won't be charged in Ireland with the unsolved 1996 murder, writes Shane Phelan
Published 13/08/2016 | 02:30
This week Ian Bailey took the unprecedented step of writing to the Director of Public Prosecutions, imploring her to put him on trial for the murder of French filmmaker Sophie Toscan du Plantier.
The highly unusual move was not an admission of guilt. Far from it, the Manchester-born ex-journalist, who became a suspect after reporting on the killing, says it may be the only way he can prove his innocence once and for all.
Faced with the prospect of a renewed effort by authorities in France to extradite him over the December 1996 murder, Bailey said he believed his only chance of a fair trial was in Ireland. But the reality of the situation is that DPP Claire Loftus is never going to agree to do this as it would violate some of the core principles of her office.
The most fundamental of these is that where evidence is not sufficiently strong to justify prosecuting, then no prosecution should occur.
A comprehensive analysis by the DPP's office long ago concluded a prosecution was not warranted based on the evidence gathered by gardaí.
Ms Loftus is also duty-bound to operate free of any extraneous influences or pressures. This would seem to preclude her from considering Bailey's request.
So it would appear Bailey is left with two choices - go to France and face trial or continue to resist extradition attempts.
Neither is particularly appealing to Bailey.
Despite the guarantee under French law that he would enjoy the presumption of innocence and a jury trial, Bailey does not believe he would get fair treatment.
But the second option would render Bailey a virtual prisoner in Ireland, unable to travel abroad for fear of being arrested under a European arrest warrant.
Almost 20 years after the brutal murder of Sophie in the laneway outside her West Cork holiday home, the campaign by her family to have someone brought to justice remains as strong as ever. It is a testament to their stubbornness that things have got to this stage.
The family is well connected in the worlds of politics and film and openly acknowledges that high-profile figures exerted pressure on their behalf.
Sophie's late husband, film producer Daniel Toscan du Plantier, was a close friend of former French president Jacques Chirac. Other backers of their campaign have included Gilles Jacob, the one-time president of the Cannes Film Festival and former French justice minister Jacques Toubon.
The pressure exerted helped prompt the launching of a French probe in 2008, under a law that allows for the investigation of the murders of French nationals abroad. By that stage the DPP had ruled out charges.
Amid ongoing diplomatic pressure, the then justice minister Dermot Ahern agreed to allow the Paris magistrate Patrick Gachon access the Garda murder file.
Bailey's paranoia about the intentions of French authorities is understandable. After all, on the face of things, they appear to be operating with the same information as the DPP, while having to meet the same burden of proof in their criminal courts.
There is no indication that any new DNA or physical evidence has been found linking Bailey to the murder.
So apart from fresh rounds of interviews conducted with the same people who were interviewed as part of the garda investigation, one wonders what further evidence may have emerged.
Yet something has prompted Mr Gachon's successor, Nathalie Turquey, to take a view of the evidence that is entirely contrary to that of the DPP.
On July 13 a second European arrest warrant was issued for Bailey, on the basis of her investigation. Two weeks later she delivered an indictment order to start a criminal case before the Cour d'Assises, the French court most similar to our Central Criminal Court.
A first extradition attempt failed in 2012 when the Supreme Court ruled Bailey could not be sent to France simply for questioning.
But the circumstances are different now, as Bailey is facing a charge.
If he does end up on trial in Paris, Bailey will encounter a court system which has some similarities with Ireland, but major differences too.
As in Ireland, he would be entitled to a jury trial and a defence team. He would be considered innocent at the outset of the trial and the onus would be on prosecutors to prove the case against him.
However, unlike here, three judges would be appointed to arbitrate between the prosecution and the defence. These judges would also form part of a nine-person jury, with the remaining members drawn from the public. A two-thirds majority would be needed for a conviction.
Another difference is that a victim's family can be legally represented in court and can ask questions of witnesses.
Should Bailey not be extradited to France, there is a very real prospect that a trial would be conducted in absentia.
In those circumstances there would be no jury and the evidence would simply be presented to the judges.
Alan Spillaert, a lawyer advising Ms Toscan du Plantier's family, said trials in absentia are uncommon, but have occurred before. He believes a conviction would lead to a third extradition request being issued.
Bailey, for his part, believes the French are cherry-picking facts to suit their case and ignoring aspects of the murder file that don't suit them. A reading of the DPP critique of the evidence in the case would appear to support this view.
Indeed, it is difficult to see how Ms Turquey can justify a prosecution unless she had uncovered new and compelling evidence.
The DPP document highlighted 15 separate issues that undermined any potential case against Bailey.
These included the lack of forensic evidence and the fact Bailey voluntarily provided fingerprints and a blood specimen, behaviour described as "objectively indicative of innocence".
The report found that Bailey's explanation that scratches on his body occurred when he was cutting branches on a tree and killing turkeys was "plausible".
Warnings issued by gardaí that Bailey posed a danger to the community created a climate where witnesses became suggestible, the report said. Many of the same witnesses referred to were interviewed by the French.