Saturday 16 November 2019

Insufficient evidence to prosecute Ian Bailey for Du Plantier murder, former DPP tells court

Ian Bailey outside court. Photo: Courtpix
Ian Bailey outside court. Photo: Courtpix

A second former Director of Public Prosecutions has told the High Court he considered there was insufficient evidence to warrant a prosecution of Ian Bailey for the 1996 murder of Sophie Toscan du Plantier.

James Hamilton said that decision was made by himself having taken advice from the official in charge of the du Plantier file and two senior counsel.

Last Friday, Eamon Barnes who retired as DPP in 1999 after which Mr Hamilton took up the post, also said he had concluded there was insufficient evidence to warrant a prosecution of Mr Bailey.

Mr Hamilton gave evidence today in the continuing civil action for damages brought by Mr Bailey against the Garda Commissioner and State arising from the conduct of the investigation into the murder of Ms Toscan du Plantier whose body was found near Toormore, Schull, on December 23rd 1996.

The defendants deny all of Mr Bailey's claims, including wrongful arrest ad conspiracy.

The hearing resumed today at 12.30pm after some two hours discussion of legal issues in the absence of the jury. Mr Justice Hedigan explained to the jury that hearing was to determine admissibility issues.

Today, Mr Hamilton said he took over as DPP in 1999 and Mr Barnes had given some preliminary decisions on the du Plantier file but had not signed off fully on it. He said he himself had read all the file sent in by the gardai.

It was not normal for a DPP to read all files as some 2,000 come in yearly, he said. However, the du Plantier case was one of the most high profile and the subject of intense public interest and concern.

He read the file and also took advice from Robert Sheenan, the official in the DPP's office in charge of the du Plantier file, and two senior counsel, Mr Hamilton said.

That advice was to the effect there was insufficient evidence to lead to a prosecution and he made that decision not to prosecute.

He informed Mr Sheehan of that decision and asked him to inform the gardai, Mr Hamilton said.

Gardaí had not questioned the decision not to prosecute but they did come back on later occasions with some additional evidence. None of this was sufficient to alter the situation and the decision did not change, he said.

A decision not to prosecute is not always final as it is always possible new evidence might come to light, he said. In this case, no new evidence came to light of sufficient quality to change the position.

He had also informed the Attorney General's office of the position, he believed this was around the time of libel actions brought by Mr Bailey in 2003.

He had received an email from Mr Barnes in 2011 about a 1998 incident involving the State Solicitor for west Cork, Malachy Boohig, in which Mr Boohig said he was asked  by a senior garda to put pressure on the Minister for Justice to get the DPP to prosecute Mr Bailey. Mr Hamilton said he contacted the Attorney General about that matter the same day.

The Attorney General had a discussion with him and asked for his opinion and he had given his reasons to her, he said.

In cross-examination, Luán O Braonáin SC, for the State, put to him that the decision for the DPP to make was whether there was evidence available on which a jury, properly instructed, could reasonably bring in a verdict of guilty. 

Mr Hamilton agreed the standard on which a jury can return a verdict of murder was beyond reasonable doubt.

Mr Hamilton said he wished to clarify that the decision for the DPP was whether there was enough evidence to allow the matter go to the jury for a decision, not whether there was enough to secure a conviction. An investigator can act on suspicion but the DPP has to act on evidence, he said.

David Fennell, an official in the Department of Justice, said the French authorities had in 2008 sought judicial assistance from the Irish authorities relating to the du Plantier investigation. Before 2008, he was not aware of any assistance being sought through the Minister for Justice's office,

The Minister's function was to provide for a witness to attend before the District Court and files would be provided. The function was to arrange for the transmission of evidence to a foreign judge. The Department would not examine the files itself, that was not its function.

The case continues.

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