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Friday 29 August 2014

Gene Kerrigan: Our rush to judgement on Ian Bailey must be examined

A sworn inquiry is required to resolve the controversy surrounding the murder of Sophie Toscan du Plantier, writes Gene Kerrigan

Published 29/12/2013 | 02:56

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Ian Bailey at the High Court in Dublin earlier this year
Ian Bailey at the High Court in Dublin earlier this year
Sophie Toscan du Plantier
Sophie Toscan du Plantier

WE'VE HAD 17 years of whispering, accusations, mischief-making and questionable police work. The handling of the issues surrounding the murder of Sophie Toscan du Plantier has undermined the credibility not just of the police, but of the wider justice system.

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The suspect in the case, Ian Bailey, has had his life destroyed. Sophie Toscan du Plantier's family has been left twisting in the wind. The case casts a shadow over the Garda Siochana. The media bought into the garda story, with predictable consequences. Neither the Irish nor the French legal systems have covered themselves in glory.

The murder, at Christmas time in 1996, was brutal. There was the added upset that a French woman visiting her West Cork holiday home for Christmas had been killed -- undermining the area's reputation for welcoming outsiders. The police had a job to do, the victim deserved justice, the reputation of the area needed protection.

Enter Marie Farrell, a shopkeeper from Schull. Farrell told the police that she was driving on a road near Kealfadda at 3am on the night of the murder and saw a man in a long overcoat stumbling along the road. This was a mile and a half from the murder scene.

That is the entirety of Marie Farrell's relevant evidence. She saw a man. She didn't know who he was. She believed he was a man she had seen twice over the previous few days, in Schull. She later said that was the same man she had seen outside her shop one day, when Sophie was in the shop.

At Kealfadda that night, she saw him, she said, for a "split second" as she drove past in the night. A "glimpse", she said.

Sometime later she saw Ian Bailey in a shop. She told the police he was the mystery man she saw walking at Kealfadda the night of the murder.

Farrell had told police the mystery man was about 5'10", of thin build. Ian Bailey is 6'2" and heavily built. Farrell gave a precise time for one of the incidences in which she saw the mystery man in Schull. Bailey was with witnesses before, during and after that time.

According to a Director of Public Prosecution analysis of the case, carried out in 2001, the road where Farrell saw the mystery man "was not even indirectly en route between the scene of the murder and Bailey's house".

Nevertheless, Bailey became a suspect. He had scratches on his hands. He had been in trouble for assaulting his partner, Jules Thomas. And Marie Farrell claimed she saw him out at 3am on the night of the murder. Bailey was

taken in for questioning in January and February 1997. It was proper that the police check out Bailey. What happened next was very far from proper.

The police sent an urgent message to the DPP. It was imperative that Bailey be charged immediately. "Witnesses living close to him are in imminent danger of attack," the police wrote. There was "every possibility he will kill again". Astonishingly, the DPP analysis of the case says the police "issued similar warnings to members of the community".

As word spread, there was hysteria. Gardai recorded one case in which a couple and their three-year-old son ran screaming when they approached Kealfadda bridge and saw a farmer the man thought was Bailey.

The media joined in, and asked Bailey if he was a suspect. He said yes, a factual answer. The media then coined a clever but loaded term to describe him -- the "self-confessed suspect". This was also factual; but it winked at the reader.

The police case was that Bailey rose in the middle of the night, left his partner and went to Sophie's house. He murdered her and returned home (apparently taking a diversion, so Marie Farrell would see him at Kealfadda).

The scratches on Bailey's hands. Bailey had cut down a Christmas tree that day, and killed three turkeys. The scratches on his hands were consistent with that. Bailey volunteered samples of blood and hair for forensic tests -- none of which connected him to the scene.

Bailey's criminal assaults on his partner were serious. They were drunken, they indicate a serious character flaw. There is, though, a significant difference between the crime of domestic assault and the crime of serially assaulting women with whom the assailant has little or no relationship.

This is not to suggest that one crime is worse than the other, but to note that these are different kinds of crime. The domestic abuser is a danger to his partner. The serial assailant is a danger to any woman. Despite huge publicity over 17 years, no evidence has emerged that Bailey is a serial assailant of women. He had been married and his ex-wife confirmed to police that he never assaulted her.

The assaults on Jules Thomas are evidence of a propensity towards domestic crime. They are not evidence of a propensity to attack women.

This leaves the sighting at Kealfadda -- of a man with thin build, in a place not close to the route between Bailey's home and the murder scene. In 2005, Marie Farrell admitted her evidence was made up. She claimed the police put her under duress to get her to implicate Bailey. This snapped the one tenuous link between Bailey and the crime.

The police are entitled to a presumption of innocence. A superintendent was appointed to investigate Farrell's claim. He did so and reported. The report remains secret, eight years later.

Bailey remained a pariah. Publicly identified by police as a murderer -- vilified, openly accused by others -- repeatedly identified by the media as the "self-confessed" suspect. Everything he did or said was assessed for sinister meaning.

Bailey seems to have already had a problem with drink. This seems to have got worse. He assaulted Jules Thomas again, while drunk.

Bailey displayed a reckless regard to his circumstances -- responding to questions or taunts with bitter sarcasm. Out of this came what the legend surrounding the case deems to be a series of "confessions".

Here are two such "confessions".

Malachi Reed told how Bailey confessed to the murder. This came about on February 4, 1997, when Bailey gave Reed a lift. Bailey seemed upset, and -- to make small talk -- Reed asked him how work was going. Bailey said, "Fine, until I went up there with a rock and bashed her f***ing brains in".

This was a bitter, sarcastic response from a distressed man whose life was in tatters. Malachi Reed was 14 -- an age at which few of us might recognise the sarcasm or irony in such a remark.

Bailey earned a precarious living as a freelance journalist. He supplied copy to the Sunday Tribune, and had written about the murder. The news editor, Helen Callanan, rang Bailey and said she had been told he did the killing. She asked him was it true. Bailey asked who said that. She wouldn't tell him. Yes, Bailey said, he'd done the murder to resurrect his journalistic career.

Bailey repeatedly and consistently denied the murder, there is no evidence whatever linking him to it -- why would he suddenly confess to a teenager and to a newspaper editor?

The remarks to Callanan were characterised in the DPP review of the case as words that "reek of sarcasm, not veracity".

However, the legend lives on, and this remark and the remark to the teenager were quoted as recently as two months ago, in the Irish Times, as evidence of Bailey's guilt.

The French sought to extradite Bailey for questioning, the Supreme Court said no. They may try him in absentia. Bailey and Thomas, still together, still living in west Cork, still consistently arguing Bailey's innocence, are suing the State for false imprisonment. The gardai are resisting allowing Bailey see the results of the police assessment of Marie Farrell's claim of duress. They claim some files have been "lost".

Last May, in a preliminary hearing, Judge John Hedigan referred to "the disturbing nature of the information before the court". Former DPP Eamonn Barnes, in an email to his successor, referred to a "thoroughly flawed and prejudiced" garda investigation.

Barnes referred to "persistent" and "grossly improper" attempts to "achieve or even force" a prosecution of Bailey. This allegedly included asking a State solicitor to approach Fianna Fail Minister for Justice John O'Donoghue, to ask him to put pressure on the DPP to prosecute. The solicitor refused.

It's hard to see how the narrow issues due to come before the courts can resolve this controversy in a manner that dispels the scandal surrounding the police and the wider criminal justice system. A sworn inquiry of some form is unquestionably required. No politician, however, seems terribly interested in vindicating the integrity of either the police or the criminal justice system.

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