Bailey fails in Garda files appeal

The High Court has ruled Ian Bailey is not entitled at this stage to certain Garda files and documents for his action over alleged wrongful arrest in connection with the murder of French film maker Sophie Toscan du Plantier in west Cork in 1996.

The President of the High Court, Mr Justice Nicholas Kearns, said he was refusing the discovery application “at this stage” because the Garda investigation into the murder was not closed and other events had intervened with the Supreme Court yet to decide Mr Bailey’s appeal against his extradition to France in connection with the death of Ms du Plantier.

It would be “most inappropriate” to direct a trawl through the Garda investigation when a trial may yet take place in another jurisdiction and Mr Bailey’s own position could be prejudiced, the judge said.

If the Supreme Court rules against the extradition of Mr Bailey, his lawyers may renew the discovery application, he added.

Mr Bailey (53), The Prairie, Schull, Co Cork initiated his civil action in 2007 against the Garda Commissioner and the State over his arrest here in February 1997 and January 1998. He is claiming damages, including punitive damages, over alleged unlawful arrest, false imprisonment, malicious prosecution, assault and battery and harassment.

His proceedings followed an internal Garda review ordered in 2005 by the then Garda Commissioner after Mr Bailey’s solicitor Frank Buttimer complained his client was arrested on foot of a statement made by a shopkeeper Marie Farrell, which she later withdrew.

The review was carried out by Assistant Garda Commissioner Ray McAndrew who recommended a prosecution in his report to the DPP but, in July 2008, the DPP decided there would be no prosecution.

For his action, Mr Bailey sought discovery of several categories of documents, including the McAndrew report, but that was refused by the Master of the High Court.

Appealing against that refusal today, Martin Giblin SC, for Mr Bailey, said 10 categories of documents sought were relevant and necessary for a fair trial.

Counsel argued he was entitled to the McAndrew report as it arose from a complaint by him and was also entitled to various other documents, including material relating to whether gardaí pursued anyone other than Mr Bailey during the investigation into the death of Ms du Plantier.

Mr Bailey believed they had wrongly focussed on him to the detriment of the investigation, counsel said.

Documents related to Mr Bailey’s claim gardai pressurised Marie Farrell into wrongly identifying Mr Bailey as the person she saw on a bridge at a time relevant to the killing, when it is alleged gardaí knew such identification was bogus, were also sought.

Other documents relating to Garda communications and interviews with Ms Farrell’s husband and another man, both of whom Mr Bailey alleges were encouraged and pressurised to help make a case against him, were further sought.

Mr Giblin argued Mr Bailey was also entitled to documents to support his suspicion gardaí tipped off the media at the time of Mr Bailey’s two arrests and leaked information as part of an effort to “demonise” him.

Opposing the application, Paul Anthony McDermott, for the State, said this application came in circumstances where the Garda file on the killing of Ms du Plantier was still open, the murderer had not been found and there had been developments since the Master’s ruling with an outstanding appeal by Mr Bailey against his extradition to France.

Mr McDermott said he wanted to make clear Mr Bailey is presumed innocent and the DPP had not directed his prosecution. However, the French authorities had taken their own view and it was difficult to see how a civil case could be run here when at the same time there was a potential threat of proceedings in France.

Counsel also argued Mr Bailey was effectively seeking to have the High Court review the entire Garda investigation and find the investigation was not properly carried out and Mr Bailey was wrongly identified as a suspect.

The court could not do that and, if everything the gardaí knew became public, that would be of huge assistance to whoever committed this crime, counsel said. This was one of the biggest investigations ever conducted, thousands of documents were involved and Garda resources would be better expended on the investigation than on making discovery. It was his case, as a matter of public policy, no cause of action arose.