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Ex-DPP and solicitor are now key to Bailey's case against gardai


Ian Bailey with his
partner Jules Thomas

Ian Bailey with his partner Jules Thomas

Ian Bailey with his partner Jules Thomas

A retired Director of Public Prosecutions and a state solicitor for west Cork will be key figures in the Garda Ombudsman investigation into the force's treatment of the prime suspect in the Sophie Toscan du Plantier murder inquiry.

Eamonn Barnes, the former DPP, alerted the state authorities in October to a garda's attempt to bring political pressure to bear on him, fearing that Ian Bailey could be extradited and jailed in France on foot of what he called a "thoroughly flawed and prejudiced" garda investigation.

Malachy Boohig, state solicitor for west Cork, was the conduit through whom the garda tried to exert the pressure. Both are expected to be interviewed about their disclosures by the Garda Ombudsman, which confirmed on Friday that it is investigating a complaint by Mr Bailey. The 54-year-old journalist last week won a Supreme Court appeal against his extradition to France, where the authorities want to question him about the murder.

Mr Barnes and Mr Boohig's correspondence, published in full for the first time, shows how their 11th-hour intervention exposed the flaws in the case.

The events date back to 1998, when the investigation into Ms Du Plantier's murder was at its height. The French film producer was found bludgeoned to death at the bottom of a path outside her holiday cottage outside Schull in west Cork on December 22, 1996. Over the next two years, the murder attracted international headlines. Mr Bailey, 54, an English journalist, generated more by giving interviews about his hounding by police.

He was arrested once in February 1997 and again in 1998, which was when gardai allegedly piled on the pressure.

Mr Boohig was driving home from the Cork Circuit Criminal Court when he got a call from a garda asking him to call to the station in Bandon. There he met a number of senior gardai. Their names were redacted from the written memo of this encounter he gave to the DPP's office last year. According to his memo, two of the senior gardai did all the talking and "made very clear to me that there was more than sufficient evidence to enable the director issue a charge of murder".

He said the meeting "continued for a good hour with both gardai continuing that I would have to persuade the director".

Afterwards, two gardai followed him to the hallway: "Both stated in very strong terms that I would have to persuade the director to direct a prosecution," wrote Mr Boohig. He said one officer said he was "aware I had attended college and studied with John O'Donoghue, the then justice minister, and that I should use that connection to talk to the minister to see if something could be done. I made no reply. I did not contact the minister."

Mr Boohig did not keep a note of what happened but told both Mr Barnes and an unnamed official.

Mr Barnes was "quite clear" in his recollection. "Mr Boohig rang asking to see me about a matter which he did not wish to discuss over the telephone. He said that if I was available he would come to Dublin that afternoon from west Cork," Mr Barnes recalled in his email. Mr Boohig warned him how gardai asked him to use his connection with the minister to put pressure on Mr Barnes. "I was of course well aware of the anxiety of the gardai to charge Bailey and not just the gardai in west Cork, strong and persistent advocacy having being deployed by them on the office for some considerable time," Mr Barnes wrote.

He understood that Mr Boohig was anxious that he be aware that the investigation was "lacking in objectivity" and "heavily prejudiced" and wanted to "forewarn me" of the "possibility of further pressure being brought to bear" on the office of the DPP.

Further corroboration was provided by the unnamed official, who had his own concerns about the investigation: "In response, Malachy told me that, between ourselves, he was disturbed by events which occurred on the re-arrest and detention of Ian Bailey," he wrote in a memo. "They told him that Bailey was saying nothing incriminating during the detention and that they simply had to get a result . . . On leaving the room Malachy was followed out by (an unnamed garda) who said to him he knew Malachy was a classmate of John O'Donoghue and could he use his influence in that quarter to assist in getting Bailey charged."

Mr Barnes decided to let the matter rest, but he didn't rule out disclosing this information in the future, if it was "appropriate". He retired in 1999 and was succeeded as DPP by James Hamilton.

Twelve years later, in October 2011, Mr Barnes clearly felt the time had come. By then, the French had launched their own investigation into Mr Bailey, obtained a European arrest warrant and the High Court had ordered his extradition. There were weeks to go before Mr Bailey's appeal to the Supreme Court opened.

On October 13, Mr Barnes sent an email to the DPP's office: "There is now apparently a real possibility that Bailey may be charged in France and perhaps receive a lengthy prison sentence presumably interalia on the basis of "evidence" and conclusions provided by what I regarded at the time as a thoroughly flawed and prejudiced garda investigation culminating in a grossly improper attempt to achieve or even force a prosecutorial decision which accorded with that prejudice," he wrote, adding he felt obliged to bring the matter to "appropriate attention".

His intervention prompted an extraordinary reaction in the state's law offices, as lawyers considered what to do with his bombshell information. Another explosive file emerged; a damning review of evidence in the Du Plantier murder investigation. Although unsigned, it's thought it was written by Robert Sheehan, then a senior solicitor in the DPP's office in 2001.

Over 44 pages the document demolished the case against Mr Bailey and clearly stated there was no evidence to prosecute him. Mr Bailey's voluntary disclosure of blood and hair samples was indicative of his innocence, it said; the arrest of Jules Thomas, his partner, in 2000 was unlawful; and the testimony of key witnesses undermined. Most damningly, it suggested that gardai allegedly gave drugs to a drug abuser as a "reward" for his helping to implicate Mr Bailey.

The Attorney General, Marie Whelan, advised that both Mr Barnes's correspondence and the DPP's file be released to Mr Bailey, in the interests of natural justice: he was facing a possible trial in France, and was entitled to the material to defend himself.

However, the material also left the State in a bizarre position: the Justice Minister was pressing for Mr Bailey's extradition, while simultaneously providing him with the means to fight it. "It was the like the State was shooting itself in the foot," a French investigator remarked.

The Supreme Court's decision not to extradite Mr Bailey was not influenced by the disclosures -- the judges reached their decision on a point of law -- but their import was gravely noted. Mr Justice Adrian Hardiman said the alleged attempt by gardai to influence the DPP had neither been confirmed nor denied.

Mr Justice John Murray said the "shocking" disclosures raised issues that were "fundamental to the constitutional protections which citizens and other persons in this country expect to enjoy".

The French regard this as an internal Irish mess that has no bearing on their own investigation. Their inquires continue and Mr Bailey could be charged in his absence. "The conflict between the garda and the DPP, we don't care. This is an internal problem between (them). For me the garda made good work on the file," said Alain Spillieart. "This is not the end of the story."

Of that, all sides can be certain.

Sunday Independent