A jury who dismissed Ian Bailey’s civil claim alleging gardai conspired to frame him for the murder of Sophie Toscan du Plantier got no opportunity to consider the conspiracy claims in full, Mr Bailey’s lawyers have told the Court of Appeal.
A decision by High Court judge Mr Justice John Hedigan to withdraw much of Mr Bailey’s case from the jury meant they did not get to decide important issues relating to the alleged conspiracy, Tom Creed SC, for Mr Bailey, argued.
He was opening Mr Bailey’s appeal against a High Court jury's dismissal in March 2015 of his claim gardai conspired to frame him for the 1996 murder of Ms du Plantier.
The State and Garda Commissioner have cross-appealed some aspects of the High Court judge’s ruling.
Mr Bailey and his partner Jules Thomas are in court for the hearing before a three judge Court of Appeal, listed for two days.
Among the grounds of appeal is the High Court should not have granted the State’s application not to allow most of Mr Bailey’s claims, including of wrongful arrest, be decided by the jury on grounds those were statute barred. That application was made on day 62 of the 64 day case.
Tom Creed SC, for Mr Bailey, argued the State’s application came too late and involved an abuse of process for reasons including substantial costs had been incurred by that stage.
In exchanges with the judges, he accepted, even if the application was made earlier, various claims by Mr Bailey, including of wrongful arrest, would be statute barred.
The claim of an “over-arching” Garda conspiracy against Mr Bailey was not statute barred and Mr Justice Hedigan’s ruling removed important issues from the jury relating to the alleged conspiracy, he argued.
The claim for damages for breach of constitutional rights and arguments related to disclosure of information confidential to the Garda investigation did not go to the jury and it also had no opportunity to consider aspects of the Garda evidence and whether they accepted that.
What was left to the jury concerning the conspiracy claim was too narrow in the context of the case being advanced by Mr Bailey, he said.
Ronan Munro BL, also for Mr Bailey, said there was ample evidence of a “residual conspiracy” which did not go to the jury.
The jury got no opportunity, for example, to consider claims a key witness, Marie Farrell was pressurised to give evidence against Mr Bailey in separate libel proceedings brought by him, he said.
At the outset today, Mr Bailey’s side got a brief adjournment to examine an affidavit just provided to them by the State and Garda Commissioner arising from a recent Sunday Times article concerning an examination by the Fennelly Commission of tapes of phone calls to and from Bandon garda station.
The article raised issues as to whether a number of tapes of calls had been discovered by the State side for Mr Bailey’s case.
After the brief adjournment, Tom Creed SC, for Mr Bailey, said he was not raising any issue arising from the affidavit at this point.
Paul O’Higgins SC, for the State, said this matter was of no relevance to the appeal. He was conscious the media was in court and wanted to point out the Commission had reviewed some, but not all, of the calls in and out of Bandon. There were 45,000 hours of calls in total.
Mr O’Higgins earlier said Mr Bailey’s side had informed the State they were contacted by the Commission about 15 tapes and asked what the position was about those. Counsel said he did not know and had contacted the Commission.
During the discovery process for Mr Bailey’s trial, it was discovered there were unknown calls from Bandon station which had to be listened to decide what was relevant to discovery, counsel said. The Commission had listened to the tapes and, as a result of that, had alerted the State side.
Mr Creed said it would appear some matters should have been discovered but were not. The Commission did not know if calls were caught by the discovery matter, he added.
Ms Justice Mary Finlay Geoghegan said, “even if there was something there”, it could not affect the grounds of appeal.
Separately, a decision is pending by the High Court on a European Arrest Warrant issued by the French authorities aimed at having Mr Bailey extradited to stand trial in France for voluntary homicide.
The State has asked the High Court to endorse that warrant – the first legal step prior to any arrest of Mr Bailey - while lawyers for Mr Bailey have objected to extradition for reasons including the DPP here had decided not to charge Mr Bailey in relation to the death of Ms du Plantier.
The appeal continues.