The jury dismissal of Ian Bailey’s civil action for compensation against the Garda and the State is the latest milestone in what is shaping up to be one of the most extraordinary episodes in Irish legal history. At the heart of his case are allegations of serious Garda corruption in attempting to frame Bailey for the brutal murder of French film producer Sophie Toscan du Plantier in Schull, West Cork, in December 1996. If substantiated, these allegations would constitute a fundamental and outrageous attack on the administration of justice in the State by officers sworn to uphold the law.
Serious concerns had already been flagged by an internal DPP assessment of the murder investigation which paints a very disturbing picture of how the Garda had gone about compiling evidence against Bailey. Among other things, this suggests that gardaí may have attempted to induce false evidence against Bailey. Concluding that such evidence would not be admissible, the DPP decided against prosecution. Equally disturbing are tape recordings (the Bandon tapes) of Garda conversations which appear to disclose shocking examples of Garda corruption in the course of the investigation, although the gardaí concerned have proffered a different interpretation of their contents.
A further twist in these already tortuous proceedings is that the Garda file was passed to the French authorities who used it to issue a European arrest warrant for Bailey to stand trial for the murder in France. As a result of differences between Irish and French law, this raises the spectre of allegedly corrupt Garda evidence being used to prosecute Bailey in France for an Irish murder, even though that evidence has been rejected as a basis for prosecuting him in Ireland for the same murder.
Suspect Garda evidence
A French trial remains a very real prospect even though the Irish Supreme Court has already overturned a High Court order for his surrender to France. Under French law he is at risk of being tried and convicted in his absence, using the suspect Garda evidence. The net effect is that Bailey is a virtual prisoner in Ireland for the foreseeable future. If he visits the UK or any other EU member state, it is likely that the French will seek his extradition to stand trial or to serve any sentence imposed in his absence.
Superficially, it may seem that the reputation of the Garda and the integrity of the administration of justice in these matters have been restored by the dismissal of Bailey’s civil action. The reality is that key concerns remain fundamentally unresolved. This is partly because of the inherent limitations of the civil action, and partly because of restrictive rulings by the trial judge on the matters to be decided by the jury.
A civil action for compensation is not designed to function as an inquisitorial search for the truth in a matter of dispute. It is essentially an adversarial contest between two protagonists in which each is attempting to persuade an independent umpire that his or her own version is more likely to be true. The matters that can be addressed are constrained artificially by the laws prescribing what a plaintiff must prove in order to be awarded compensation. Similarly, the evidence that can be introduced and probed is limited by laws and procedures designed to keep the focus on what must be proved and to ensure that the contest is conducted in a fair adversarial manner.
The net effect is that the civil action for compensation against the State, whether won or lost, frequently offers only a partial view of the full story. Even disturbing allegations of serious wrongdoing by officers of the State can be left unexamined if they cannot be brought within its legal and technical requirements. This is a far cry from the inquisitorial judicial inquiry in which the focus is on a proactive search for the whole truth which is an essential pre-requisite for the restoration of public confidence in the institutions of State and, where relevant, the proper administration of justice.
In Bailey’s case, the limitations of the civil action were compounded by restrictive rulings imposed by the trial judge. Early in the proceedings, for example, he ruled that expert opinion evidence on the conduct of the Garda investigation would not be permitted. Critically, this meant that the jury did not get to hear the all-important reasoning behind the DPP’s decision not to charge Bailey. Equally, they were denied the expert evidence of a former assistant commissioner in the London Metropolitan Police on the significance of what was revealed by the contents of the Bandon tapes. The effect of these rulings was to deprive the jury of the benefit of vital independent standards that they could otherwise have used to assess the nature, extent and significance of the alleged Garda corruption.
Moreover, very late in the trial, the judge acceded to a defence application to exclude large parts of Bailey’s case on the basis that they rested on events that were statute barred, having happened more than six years before the case was initiated. This surprising turn of events precluded the jury from considering substantial and vital parts of Bailey’s case on Garda corruption which they had listened to in 59 days of evidence over a five-month period. Instead, they were to focus on the artificially narrow question of whether gardaí had conspired to get false evidence against Bailey from a single witness, namely Marie Farrell.
The net effect of the judge’s rulings and directions was that the core allegations of Garda corruption and the associated consequences for the administration of justice in the State and beyond, were not fully, or even substantially, addressed. The evidence and the issues were too narrowly and artificially constrained to serve that fundamental necessity.
Pressing need
Ultimately, the need for a comprehensive account of the manner in which the murder of Sophie Toscan du Plantier was investigated remains as pressing now as it was when Ian Bailey commenced his civil action. The full truth must be exposed and lessons learned so that public confidence in the administration of justice in this State and beyond can be restored.
It is not satisfactory to say that these events occurred back in the dark days of Garda corruption addressed by the Morris Inquiry and that we have moved on since then. They have taken, and continue to take, an intolerable toll on the lives of too many people. The murder itself remains unsolved. These matters cannot be fully addressed through a civil action for compensation or the Garda Ombudsmanprocedure. They require the power and resources of yet another judicial inquiry.
Prof Dermot PJ Walsh MRIA, University of Kent, is author of Human Rights and Policing in Ireland (2009)