Mick Clifford: Sophie Toscan du Plantier case still haunts Ireland's legal and political system

Irish Examiner

4 days ago

Nearly 30 years after the brutal murder of Sophie Toscan du Plantier, the fall-out continues apace.
In June, a new docudrama made by Jim Sheridan about the case premiered at the Tribeca film festival in New York. It portrays what a trial of Ian Bailey, the chief suspect in the murder, would have looked like.
This follows from a documentary made a few years ago by Mr Sheridan and another produced by Netflix. There has been the West Cork podcast, a highly regarded series on the case and various books.
One of the latter was the focus of a new departure in the case this week – an application to bring a private prosecution against its author, Senan Molony, and also the person who launched the book, Taoiseach Micheál Martin.
Frenchwoman Ms Du Plantier's body was found outside her holiday home in Schull in December 1996. Ian Bailey was twice arrested for the murder. He was never charged.
In 2019, a French court convicted Ian Bailey in absentia of the murder and sentencing him to 20 years in prison. File picture: Dan Linehan
In 2019, a French court convicted him in absentia of the murder and sentencing him to 20 years in prison. The Irish courts refused to extradite him. Mr Bailey continued to live in West Cork until he collapsed and died in Bantry in January 2024.
There has, over the years, been two prevailing narratives about Mr Bailey and whether or not he was responsible for the murder.
One has been the perception among large swathes of the public that Mr Bailey must have been the murderer. This has been based on the various strands of circumstantial evidence against him.
A number of accounts, including the Netflix documentary, and the book at issue in the private prosecution, have veered towards this conclusion.
At the other end of the spectrum has been the relatively boring but absolutely vital business of actual evidence and whether or not it amounted to a realistic chance of prosecution of Ian Bailey for murder.
One central figure in that respect was Robert Sheehan, a prosecutor who spent most of his career in the office of the DPP. In 2001, he wrote an analysis of the garda investigation into Mr Bailey and what evidence existed that could be used in a prosecution.
The document went through each facet of the case in detail, from the complete absence of forensics, to Mr Bailey's statements and behaviour, circumstantial evidence, and the character of the chief witness on whom much of the case against Mr Bailey would hang, Marie Farrell.
Former DPP Robert Sheehan (pictured) concluded that there was no case to prosecute Mr Bailey and in a few places he even suggested that evidence pointed to the suspect's innocence. File picture: Courtpix
Mr Sheehan concluded that there was no case to prosecute Mr Bailey and in a few places he even suggested that evidence pointed to the suspect's innocence.
That document did not see the light of day for over 10 years.
Then in 2011, the incumbent DPP Jim Hamilton made available Mr Sheehan's analysis ahead of an extradition request from the French government.
Mr Hamilton felt that the document was vital evidence for the Supreme Court to consider. The court subsequently declined to extradite Mr Bailey.
Fast forward to last September and the launch of another book on the case, Sophie: The Final Verdict.
The Taoiseach did the honours for author and journalist Senan Molony. At the event, Mr Martin mused that he couldn't understand the 'legal principles' that were applied which concluded Mr Bailey should not be prosecuted.
'The simple fact is that we failed in our duty to find and convict a bloody murderer — and our system blocked alternative routes when others were not willing to accept our failures,' he said.
In the book Sophie: The final verdict, Senan Molony is critical of Sheehan's analysis, suggesting that the solicitor acted as a 'one man jury' in arriving at his conclusions.
In the book itself, Mr Molony is critical of Sheehan's analysis, suggesting that the solicitor acted as a 'one man jury' in arriving at his conclusions.
Mr Sheehan interpreted passages in the book, along with public comments from both the Taoiseach and Mr Maloney, as impinging on his professionalism. He could have sued for defamation.
He told the Irish Examiner he didn't go down this route because 'the financial cost of losing a case would leave you ruined'. It is a moot point as to how strong any such case would be.
One way or the other, his conclusion in that respect is entirely valid. A defamation action can be ruinous.
In the recent Gerry Adams libel action against the BBC he was awarded €100,000 by the jury. The costs for which the BBC now falls liable are estimated to be north of €2m.
Instead of seeking resolution in the civil courts, Mr Sheehan corresponded with the DPP and set out his intention of applying for permission to take a private prosecution against the two individuals.
As the alleged offences are indictable, the DPP would have to be involved.
Ian Bailey was twice arrested for Sophie Toscan du Plantier's murder. He was never charged. File picture: Dan Linehan
Then last Monday he applied to Dun Laoghaire District Court for the issuing of the summons, but his request was turned down. He says he may now appeal to the circuit court or bring his case to the European Court of Human Rights.
More than anything the affair highlights once more the gulf in this case between what has been determined in the court of public opinion and the decision that Mr Bailey did not have a case to answer in a criminal court.
Mr Sheehan's analysis was detailed and clear headed but crucially he was not an outlier. His boss at the time, Eamon Barnes, concurred with his conclusions.
So did Mr Barnes successor, Mr Hamilton. Experienced senior counsel, one of whom has gone on to be a high court judge, were retained for opinions and they all reached the same conclusion.
'There was certainly no lack of enthusiasm to prosecute him if the facts suggested that there was evidence against him,' Supreme Court judge Adrian Hardiman noted when the case was before him.
One recurring line from the barstool opinion was that Mr Bailey should have just been put on trial and let a jury decide on his guilt or innocence.
That implies that there is no need for a prima facie case to be established before somebody should be charged and tried with an offence.
In other words, if he looks like he might have done it, if he – as Mr Bailey had – displays a personality that is extremely unattractive, let a jury decide whether or not he did it.
If the day comes when that passes for due process in a liberal democracy, we're all in trouble.
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