Inquiry into Sophie death was always going to be difficult after botched start
THE sudden death of Ian Bailey draws a curtain over a very dark and sad period in recent Irish history. While some sources suggest that the investigation into the murder of Sophie Toscan du Plantier will continue, I suspect that will be the end of it, from a criminal prosecution point of view. Unless, of course, some new and dramatic evidence emerges.
Unfortunately, from the start, the investigation of the hideous murder was dogged by mistakes.
The fact that the killing occurred just before Christmas Day didn’t help. For instance, it was over 24 hours before the State pathologist, Professor John Harbison, began his examination.
The Garda technical unit didn’t get to the crime scene for nearly 12 hours after Ms Toscan du Plantier’s body was discovered. In the meantime, the crime scene was not properly secured.
And, because of conflicting views amongst gardaí attending the scene, Ms Toscan du Plantier’s body remained at the crime location in Schull, out in the open, for two nights, thereby preventing viable DNA from being harvested.
No matter what happened subsequently, those failings could not be put right.
Then there were the circumstances surrounding the alleged identification of Bailey, by Marie Farrell, as being a person of interest at a location near the crime scene. This led to questions about the conduct of the investigation by the gardaí, with the suggestion that they were putting pressure on witnesses to implicate Bailey, something which they vehemently denied.
Liberty
However, these and other inconsistencies raised significant concerns about the overall handling of the matter by the gardaí.
The Director of Public Prosecutions (DPP) has consistently held the view that there was insufficient evidence to ground a prosecution against Bailey.
Indeed, the late Eamonn Barnes, who was DPP during some of the relevant years, was adamant that there was not a ‘prima facie’ case against Bailey, adding that there had been ‘a lot of persuasion’ from the gardaí to charge him. It was accepted by all that there was only circumstantial evidence against the suspect.
That, in itself, would not be a bar to grounding a prosecution against Bailey. Indeed, many high-profile convictions in Irish murder cases have succeeded based solely on circumstantial evidence, including those of Graham Dwyer for the murder of Elaine O’Hara, and Patrick Quirke for the murder of Bobby Ryan. But the problem in the purported case against Bailey was that there were so many points of inconsistency that DPP officials could not be convinced there was enough evidence to prove a case beyond reasonable doubt.
Some would say that the DPP should have taken a chance and gone ahead, despite reservations about the sufficiency of the evidence. To suggest that misunderstands the role of the DPP office in our society.
The liberty of an individual is at stake.
If that was done, in those circumstances, the case would most likely not get anywhere near a jury because the presiding judge would inevitably throw it out for lack of sufficient evidence. And that would mean that the particular accused could not be subsequently charged again. The DPP cannot decide to prosecute someone based on ‘hearsay, rumour, innuendo, speculation, suspicion, gossip and evidence of bad character’, as another DPP involved in the case, James Hamilton, stated.
He was replying to criticism of the Irish approach from his French counterpart, Jean-Pierre Bonthoux.
Hamilton went on to say the Irish courts will refuse to admit into evidence material which is prejudicial but lacking in evidential value.
A large quantity of such material does not, in the Irish legal system, add up to a case.
Indeed, he emphasised: ‘In Irish law, it is possible to convict a person only on the basis of admissible and credible evidence, given orally by witnesses, which is relevant to the offence charged, and a jury must be convinced of the case against the accused beyond a reasonable doubt.’
Another vital element in any contested prosecution in our courts is the ability of the defendant to put the witnesses for the State under rigorous cross-examination. Therein lies the difference between the Irish and French legal systems.
Here, we demand that before someone can be found guilty, there has to be a substantial body of evidence against them. That evidence must be open to scrutiny and challenge by the defendant, and in the case of serious offences, a jury of ordinary citizens must be convinced of the person’s guilt, based on the evidence presented, beyond reasonable doubt.
As we saw in the actual case taken in France against Bailey, clearly the bar is set lower there. Bailey chose not to contest the case in person, as is his prerogative. But he was convicted, in absentia, by the French court, and sentenced to 25 years in prison on the basis of evidence presented, which would never, ever be sufficient to even get to the steps of an Irish court, let alone before a judge and jury.
Since Bailey’s death, there have been calls for the ‘dysfunctional Irish legal system’ to be reformed. For me, there was nothing dysfunctional, specifically, about the way in which the Irish prosecution service, the DPP, handled the Toscan du Plantier case.
If anything, the Irish prosecution service did its job, in forensically analysing the evidence presented to it.
It was the fundamental mistakes made in the initial stages of the investigation which rendered any possibility of a successful prosecution difficult. It has to be accepted that the evidence tendered by the gardaí has, to date – according to the DPP – not been of sufficient quality to prove a case against Bailey or anyone else.
Yes, it has to be accepted that crucial mistakes were made by the gardaí in the case. But it is not just the Irish police force which makes mistakes. The French criminal system is not without its faults; the horrific rape and murder of Irishman Trevor O’Keeffe by a French serial killer in 1987 is a case in point. His body was found in a shallow grave in the northeast of France.
Mistakes
The French police made copious mistakes in their attempts to track down the culprit, Pierre Chanal, allowing him to murder seven other young men between 1980 and 1988. Trevor’s mother spent 16 years trying to get the French police authorities to prosecute Chanal for her son’s murder, to no avail. He took his own life before Trevor’s mother got justice. Indeed, then French president Jacques Chirac admitted around that time that his country’s criminal system was not fit for purpose.
In every walk of life, mistakes are commonplace. But when it comes to deciding to take someone’s liberty from them, all the t’s have to be crossed, and i’s dotted.
I fully appreciate there are divided views across the country about whether Bailey was guilty. Virtually everyone has an opinion. As have I! But opinions or hunches do not cut the mustard when it comes to grounding a criminal prosecution. I would wager that every one of the people who have an opinion on Bailey would insist that their loved ones be treated as innocent until proven guilty and only be convicted based on hard, contested evidence if it was one of their own family involved.
If, as has been suggested by some, a critical examination of our criminal justice system should take place, I, for one, would hope that we would not tamper with the high bar that is set here before someone is convicted. Prosecutions have to be proved beyond reasonable doubt, not by some lower standard of proof.
Unfortunately, the losers in this sorry episode are the family and friends of Sophie Toscan du Plantier because of the mistakes made by the gardaí in the investigation of her murder. And now, because of the death of Ian Bailey, it seems that they will not get the closure and justice they deserve.