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Bailey's gamble failed - but Sophie's family are the real losers

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Ian Bailey arrives at the Four Courts in Dublin on Monday (Brian Lawless/PA Wire)

Ian Bailey arrives at the Four Courts in Dublin on Monday (Brian Lawless/PA Wire)

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Ian Bailey arrives at the Four Courts in Dublin on Monday (Brian Lawless/PA Wire)

There are several dramatic court moments I'll never forget.

Moments such as when Gemma Dwyer, the wife of recently-convicted murderer Graham Dwyer, declared "that's our spade" when she testified in his trial. Or seeing Sean Quinn Snr, Ireland's former richest man (who speaks about himself in the third person), being hauled off to Mountjoy jail after a chicken curry and a pint of Heineken.

One of the more surreal moments in recent years occurred last December, when former shopkeeper Marie Farrell practically flew out of the witness box in Ian Bailey's long-running civil action against the State, which he lost yesterday.

The married mother-of-five had just been warned about perjury and was told by trial judge Mr Justice John Hedigan that she must answer questions about the male friend she was allegedly with in a car in the early hours of December 23, 1996, when she says she saw a man at Kealfadda Bridge.

Later that day, the body of French filmmaker Sophie Toscan du Plantier was found near her home in Toormore, Schull. Ms Farrell, who previously named a dead man as the man in the car to gardaí, fled the witness box after Judge Hedigan warned her there would be no "secret evidence" in the trial.

Mr Bailey buried his head in his hands as his star witness trounced out of court. Ms Farrell later returned, named another dead man as the man in the car and denied she was 'on the run' from social services in England.

Now Judge Hedigan has referred her evidence in the case to the Office of the Director of Public Prosecutions (DPP), presumably to consider whether charges of perjury could arise.

We will never know why the 11-strong jury, which sat for 64 days before deliberating for two hours, rejected Mr Bailey's legal action. But we can only surmise that the credibility of Ms Farrell was part of their considerations.

The case ran for five months under a series of headings including wrongful arrest, false imprisonment, intentional infliction of emotional harm and conspiracy. But in the end only two questions were posed to the jury.

The questions asked if four named gardaí (or any combination of them) conspired together to implicate Mr Bailey in the murder of Ms du Plantier by obtaining statements from Ms Farrell by threats, inducements or intimidation which purportedly identified Mr Bailey as the man she saw in the early hours of December 23, 1996 when they knew they were false.

The second asked whether Det Garda Fitzgerald and Sergeant Maurice Walsh conspired to get statements from Ms Farrell that Mr Bailey had intimidated her when they knew they [the statements] were false?

After just two hours of deliberation, the jury answered no to both questions, closing a chapter, but not the book, on Mr Bailey who was twice arrested but never charged over the killing.

Charging the jury, Judge Hedigan said they must be fair and objective and must be careful of a David and Goliath comparison between the sides. "Goliath has as much right to justice as David," said Judge Hedigan.

The State, as Goliath, has won this particular battle. But that doesn't mean it has emerged without any scars. For there are many questions that remain following yesterday's verdict.

Questions such as why the State left it so late to have the case struck out on the grounds that many of the issues raised were statute barred. Such claims are normally dealt with in the preliminary stages of litigation, but the State explained its position and Judge Hedigan said that while the application was undoubtedly made at the last possible moment, it was open to them to make.

Like many trials, civil and criminal, much of the contested issues occur in the absence of the jury. Jurors did not know, for example, that Robert Sheehan - a senior official in the office of the DPP - had demolished the case against Mr Bailey in a 44-page memo.

The Sheehan memo and testimony from former DPP James Hamilton that there were "so many shortcomings" in the Garda file that he felt obliged to send a detailed memo to gardaí explaining his decision not to prosecute, were not considered by the jury. Both were deemed inadmissible as they were expressions of opinion, yet it is expressions of opinion within the office of the DPP exercising its statutory powers that determines whether a prosecution is pursued or not. All Mr Hamilton could tell the jury, in the end, was that there was never sufficient evidence to prosecute.

So where are we now?

The French authorities are determined, it seems, to try Mr Bailey for murder even though the Irish State has repeatedly refused to do so because it does not pass evidential muster.

The French are insisting the Irish State, which has brought no prosecution of its own, assist them fully in their own attempts.

I wonder if Mr Bailey were a more likeable character and Irish into the bargain would we be as laissez faire about this bizarre inter-country diplomatic affair?

The Supreme Court has ruled that Mr Bailey can not be extradited to France, but he says he cannot travel outside the country amid fears he will be extradited on foot of an extradition warrant executed elsewhere.

Ms Farrell was Mr Bailey's key, if deeply questionable, witness. But it is easy to forget that for a long, long time, she was the gardaí's key witness too. There were gambles, in my view, for both Mr Bailey and the State in allowing this to run its full course.

Mr Bailey, who has gambled before with litigation, has lost his conspiracy claim. But that does not mean the original murder inquiry, dogged by controversy from the outset - is not without its flaws.

The greatest travesty is that a loving wife, mother and daughter was murdered and her killer may never, ever be called to account.

Irish Independent


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