Monday December 23rd marks the 23rd anniversary of the murder of Sophie Toscan du Plantier in west Cork, but in the near quarter of century that has elapsed since her death, perhaps arguably the most significant development was the trial in Paris last May when English journalist Ian Bailey was convicted in his absence in France of her killing.
Here, Irish Times Southern Correspondent, Barry Roche, who has covered the story from the start, looks at what happened in France and examines if what happened there amounts to justice for either Ms Toscan du Plantier’s family or for Ian Bailey.
“I predicted this 12 years ago,” observed Ian Bailey as he set up his stall selling his pizza and poetry in Skibbereen on the day after the Cour d’Assises in Paris found him guilty of the murder of Sophie Toscan du Plantier.
There is no doubt but that for many that French verdict came as no great surprise. However what did come as something of a surprise, particularly to those who have closely followed the 23-year saga of the murder of the 39-year-old mother of one at her holiday home in west Cork in 1996, was how much the French authorities knew and yet chose not to call into evidence at the Paris trial. Suggestions that they might focus simply on statements from key witness Marie Farrell that incriminated Bailey and ignore other ones from her that exculpated him proved well wide of the mark.
All of Ms Farrell’s statements from 1997 – where she told how she saw a man at Kealfadda Bridge, 2.6km from the murder scene, at about 3am on the morning of the murder, whom she later identified as Bailey – were read into the record but so also were ones she made post-2005, where she alleged that she had been coerced by gardaí into framing Bailey.
So also were memos of interviews that gardaí conducted with Bailey's partner, Jules Thomas, where she said she thought Bailey got up at about 2am on the night of the murder and she didn't seem him again until 9am when he brought her breakfast in bed. But the French also included later Garda memos of interview with Thomas where she strongly disputed what gardaí had recorded her as saying in the earlier memos and essentially accused the gardaí of fabricating her statements to frame Bailey.
And all of the memos of interviews gardaí held with Ian Bailey, from his arrests in both February 1997 and January 1998, were also opened to the court and read into evidence so the three judges were given an opportunity to hear his repeated denials of any involvement in the murder of Toscan du Plantier.
While that French willingness to give Bailey “his spake” in absentia, so to speak, may have surprised some, what perhaps was more surprising about the French trial were the witnesses or statements that would have bolstered the prosecution case and yet which they chose not to open to the court.
Clearly, they were aware of much of the information that their investigators had gathered during visits to Ireland in 2008 and 2011 following the transfer to them in July 2008 of the Garda file, as the indictment referred to many witnesses who could have been called but curiously were not.
And even beyond the indictment, both Bailey's largely unsuccessful libel action against eight papers in Cork Circuit Court in 2003 and his failed action against the State for unlawful unrest in the High Court in Dublin in 2014/15 meant other information was public and additional witnesses could have been called.
And beyond that again, there was at least one other witness, Leo Bolger, who had gone public via The Irish Times in 2010, with a statement that Bailey had been introduced to Toscan du Plantier, that might have assisted the French prosecutor make his case and he was not even mentioned in Paris.
Circumstantial
As gardaí have acknowledged, the case against Ian Bailey has always been circumstantial – there were no witnesses to Toscan du Plantier’s murder, no forensic evidence to identify the killer and no confession to gardaí. So efforts to prove the case against any suspect were always going to be difficult.
The Garda investigation into Ian Bailey was incremental in nature <br/>
But, as barristers tell juries in Irish trials every day, they can convict on circumstantial evidence once they are satisfied beyond reasonable doubt – as the high profile convictions of Patrick Quirke for the murder of Bobby Ryan and Graham Dwyer for the murder of Elaine O'Hara show, with the prosecution building its case in both instances on circumstantial evidence.
The Garda investigation into Ian Bailey was incremental in nature with the relevance of some testimonies only becoming evident to detectives in the months after the killing. But by the time French investigators came to the case in 2008, the significance of all witnesses should have been clear.
Broadly speaking, the circumstantial evidence against Ian Bailey can be broken down into a number of categories – or least segments of information which directly contradict his version of events or are denied by him and, as such, should form the basis of presenting a case against him.
The first category relates to Ian Bailey and Sophie Toscan du Plantier – did he know her? When did he learn of her murder? How did he to get to the murder scene? Did he take photographs of her body and what did he know of her injuries? Questions where witnesses say one thing and he says the contrary.
The second category of “evidence”, at least under French law, which is very different to Irish law in this regard, is Bailey’s history of violence towards his partner of nearly 30 years, Jules Thomas, and in particular three assaults which he has admitted he perpetrated on her before and after the murder.
The third category of evidence relates to the controversial area of admissions – over half a dozen witnesses who made statements to gardaí where they said they believed Bailey had confessed to killing Toscan du Plantier to them only for him to vigorously deny ever making such admissions.
The last area of circumstantial evidence relates to what the French called “materiel evidences” – the closest that the Garda and the French investigators came to some objective physical evidence that might link Ian Bailey to the killing in the clear absence of incontrovertible forensic and DNA evidence.
Did he know her?
In terms of the first category of circumstantial evidence, it is perhaps instructive to look at what gardaí gathered on whether or not Ian Bailey knew Toscan du Plantier – something he has strenuously denied in both his libel action and his High Court action as well in countless media interviews.
Bailey's position can best be summarised by what he told his 2003 libel action – he was doing some gardening work for Toscan du Plantier's neighbour, Alfie Lyons in the summer of 1995 when he saw a blonde woman outside her house while two young boys playing in the field, but he did not meet her.
Lyons told the libel trial that he was 90 per cent sure that he introduced Bailey to Toscan du Plantier that day while in 2010 another man, Leo Bolger, told The Irish Times that he was present doing work for Toscan du Plantier when Lyons introduced her to Bailey, who was doing work for him.
The libel trial also heard from now-deceased Guardian Paris correspondent, Paul Webster that he received a phone call in mid-February 1997 from a man who introduced himself as Ian Bailey and, in the course of the conversation, he said he knew Toscan du Plantier quite well as an acquaintance.
In the High Court case in 2015, another witness, Ann Cahalane told how, while playing Toscan du Plantier in a Crimeline reconstruction in mid-1997 of Toscan du Plantier's visit to Three Castles Head on December 22nd, 1996, Bailey came up to her and told her he knew the French film producer.
The French indictment also refers to a statement from Mark McCarthy, a friend of one of Jules Thomas’s daughters, who said he saw Bailey speaking to a petite blonde woman at the Story Telling Festival on Cape Clear in September 1995 and he later recognised her from photos as Sophie Toscan du Plantier.
And the French file also makes reference to Skibbereen garage man Sean Murray telling gardaí that he sold petrol to a woman driving a rented Ford Fiesta and matching Toscan du Plantier's description on December 20th, 1996 and he saw she had a companion in the car who resembled Bailey.
One of just two Irish witnesses to travel to France, Billy Fuller, told the hearing that Bailey told him that he and his partner, Jules Thomas, had Toscan du Plantier and her lover over for dinner twice at their house at the Prairie in Schull but Fuller said he could not remember the name of the lover.
Earlier, in the High Court case in Dublin in 2015, former Sunday Tribune News Editor, Helen Callanan testified that, when commissioning Bailey to report on the murder for the paper in December 1996, he told her that he had spoken to Toscan du Plantier.
Then there was the testimony in Paris of Toscan du Plantier's friend, Agnes Thomas, who told how she remembered in 2015 that Toscan du Plantier rang her a week before leaving for Ireland on December 20th, 1996 to say she was due to meet "a weird guy who wrote poetry" during her visit.
And the French indictment also refers to a statement from Toscan du Plantier's cousin, Alexandra Levy, where she relates how Toscan du Plantier was stunned to receive a phone call at work a week before she left for Ireland from a freelance journalist who wished to meet her for "cultural purposes".
Neither Agnes Thomas nor Levy say that Toscan du Plantier named Bailey as the man she was due to meet but another friend, film producer Guy Girard said that Toscan du Plantier spoke about a friend of hers who was exploring the theme of violence in his writings and that his name was Bailey.
Girard told police that he said to Toscan du Plantier that he knew who she was speaking about - French film maker Edwin Baily - but Toscan du Plantier replied that he could not know him as his name was Ian Bailey and he was a freelance writer who lived near her in West Cork and she seemed to know him well.
It should be pointed out that the evidence of Fuller and statements of Agnes Thomas, Levy and Girard would all be inadmissible in an Irish court as they all break the hearsay rule but they are admissible under the French system as are statements from deceased persons such as Webster.
Indeed, it should be noted that the inquisitorial French system is quite different to the adversarial Irish system, not just in terms of how it approaches the questioning of witnesses but what actually is considered admissible as evidence.
When did he know?
The second area where it might have been expected that the French prosecution might have profitably explored in far greater detail was the issue of when exactly Bailey learned of the murder and how much information had he got about her identity at that point.
The Garda case - and on the back of it, the French case - relies on the testimony of Irish Examiner reporter, Eddie Cassidy, whom records show rang Bailey at his home at the Prairie at 1.40pm on December 23rd , saying there had been a murder in Toormore and asking could he check it out.
Cassidy was adamant in both his Garda statements and evidence in the libel action that he simply said a woman had been murdered and did not say she was French as he did not know the victim’s nationality at that stage. Bailey insisted Cassidy told him the woman was French.
What happens next is also the subject of dispute with Bailey saying he and Jules Thomas decided to drive to Alfie Lyons's house as he knew a French woman lived there and he stopped Lyons's partner, Shirley Foster, at the junction of the local boreen with the Kealfadda Road to ask if she knew anything.
Foster’s version is Bailey had already left the Kealfadda Road and was half way down the cul-de-sac leading towards Toscan du Plantier’s home when she met him and she had to flag him down to stop because he was in such a hurry and he didn’t ask directions as he knew where he was going.
In the High Court, Bailey said he had driven down the road towards Kealfadda as he wanted to go to Jermyn’s Post Office to try and find out information there but the fastest way from Bailey’s house to Jermyn’s Post Office is straight down the Toormore Road (R591), not a detour to the west via Kealfadda.
Then there was the matter of “a trial note” as described in the High Court case, dated August 17th, 1997 and signed by Thomas which gardaí found during Bailey’s second arrest in January 1998 and which appeared to explain Bailey and Thomas’s actions after getting the call from Cassidy.
In the note Thomas recorded how they were travelling towards Dunmanus after 2pm on December 23rd to check out Cassidy's report of a murder when they encountered "a non-local woman sitting in a car near the bend and Ian goes to talk with her as she looks lost and we often help people".
“He says when he got back into the car that it is a French journalist who is over to investigate a murder of a French woman and (he) wondered how she had been so quick to hear the news and get here too,” wrote Ms Thomas before describing how they continued on and met Foster in her car.
When questioned in the High Court by Paul O’Higgins SC for the State, how a French journalist could have learned of Toscan du Plantier’s murder when it was only discovered at 10.20am and make it from France to Toormore by 2pm, Thomas said she must have been mistaken about the day.
Of perhaps more obvious significance is the testimony of Caroline Leftwick who told the libel trial that Bailey rang her between 11.30am and 12.30pm on December 23rd to say he could not collect some garlic as he had to report on a murder and when she asked of whom, he said a French woman.
Another witness, Paul O’Colmain also testified to similar effect at the libel action that Bailey rang him when he was still in bed which he estimated was around 11.30am to say that he could not deliver a turkey he had for him as there had been a murder which he had to report on and he seemed excited.
Bailey told the libel action that he rang Leftwick at around 12 noon but denied he ever said anything about the murder, while he told the High Court he made two phone calls - one at around 12 noon where he made no mention of the murder and one around 2pm where he did mention it.
However, support for Leftwick and O'Colmain's version came in the libel action from Goleen stall holder, Jimmy Camier, who said Bailey's partner Jules Thomas remarked to him between 10.30am and 11am that Bailey had gone to report on a murder and it was very sad but it was his job.
Camier was adamant the conversation happened between 10.30am and 11am on December 23rd as it was the first he heard of the murder but Thomas said it was on December 24th as they only heard of the murder at 1.40pm on December 23rd from Cassidy and she did not go to Goleen that morning.
Again there seems no way of reconciling the testimonies of Cassidy, whose statement was read into evidence in France, and those of Leftwick, O’Colmain and Camier, now deceased, with those of Bailey and Thomas about when they learned of the murder.
Also adding to the uncertainty or confusion is a statement from another deceased witness, Patrick Lowney, which was read into evidence in Paris, that a man, whom he later identified as Ian Bailey, came to him in May 2000, asking him to discreetly develop a roll of film at his darkroom in Clonakilty.
He developed the picture which included photos of what appeared to be a woman’s body lying in front of a gateway, leading to what looked like a farmyard and he later identified the scene to gardaí in November 2000 as being the entrance to Toscan du Plantier’s home where she was murdered.
The significance of Lowney's statement is that it tends to support statements made by veteran journalist Dick Cross of the Irish Independent, Irish Independent picture editor Padraig Beirne and freelance photographer Mike MacSweeney that Bailey offered them shots of the crime scene.
All three said Bailey rang them after 2pm on December 23rd to offer scene shots from the morning - MacSweeney said from around 11am - which should not have been possible if, as Bailey told gardaí, he only learned of the murder from Cassidy at 1.40pm by which time the scene was closed off.
Interestingly, Leftwick also offered evidence in the libel action that Thomas had either seen the body or photos of it taken before it was covered over by gardaí, telling her at a party in Bill Fuller Snr's house in late January 1997 that "you should have seen the body - it was a terrible sight".
Assaults
One area of inquiry where the French investigation did place a consistent emphasis was Bailey’s history of violence towards his partner, Jules Thomas, whom he had previously admitted assaulting three times when he gave evidence in both the libel action in 2003 and the High Court case in 2014.
Bailey admitted assaulting Thomas in August 1993, May 1996 and August 2001, for which he was convicted in Skibbereen District Court in 2001 and received a suspended sentence and, during the High Court case in 2014, he said "I don't know what I can say about it, other than it is to my eternal shame."
The details of the May 1996 assault had been given by Bailey's former friend, Peter Bielecki in the 2003 libel case where he told of finding Thomas curled up in a foetal position in her bedroom with a swollen eye, bleeding mouth and other injuries. "It was as if her soul had been ripped out," he said.
The trial in France heard of the same 1996 assault in a statement from Ginny Thomas, who told how she found her mother with a swollen, bleeding eye, scratches on her face, a bleeding mouth and tear inside her mouth as well as bite marks on her right hand and bruises on both hands following the assault.
Such evidence of previous assaults - or indeed subsequent ones as in the case of the 2001 incident - would not be admissible in an Irish court but is admissible under French law and appeared to be part of a strategy aimed at building up a profile of Ian Bailey as a dangerously violent individual.
The three-judge court heard details of a written report from psychiatrist, Dr Jean Michel Masson and psychologist, Katy Lorenzo-Regreny, neither of whom ever met Ian Bailey, but studying his writings, including his diaries, media and Garda interviews, made some interesting observations about him.
Among the diary entries they focused on was one where he wrote about attacking Thomas after a serious drinking binge and injuring her so badly that she had to be hospitalised. “I feel sick reading my own report of the events that night - I really wanted to kill her,” he wrote in his diary.
The experts concluded: “Ian Bailey had a tendency presenting a personality constructed on narcissism, psycho-rigidity, violence, impulsiveness, egocentricity, with an intolerance to frustration and a great need for recognition. Under the liberating effects of alcohol, he had the tendency to become violent.”
The two experts also said Bailey’s personality traits were often seen in people who were diagnosed as being “on the borderline” but “without necessarily being psychotic” while they also referred to the contradictory behaviour of having “profound impulsive tendencies” and “perfect mastery of himself.”
But having a tendency towards something is not necessarily proof that somebody does or did something or, as Ian Bailey not unreasonably put it when he expressed his remorse and shame in his 2003 libel action, “the fact that I have committed these (assaults) with Jules doesn’t mean I am a murderer.”
Alleged admissions
One area where the French prosecution placed considerable emphasis was on what it argued were confessions that he made about Toscan du Plantier’s death.
The prosecution argued that Bailey made several admissions and perhaps the one that received most attention was his comments made to the then 14 -year-old schoolboy Malachi Reed after he gave him a lift home from school on the evening of February 4th, 1997.
Reed did not attend the trial in Paris but his mother, Amanda did and she outlined what her son had told her, evidence already given by Reed at the 2003 libel action, about what happened that day in early February 1997 when, during the car journey home, he casually asked Bailey how he was?
According to Malachi Reid, Bailey replied “Fine until I went up there and smashed her brains in with a rock” which he interpreted as an admission that Bailey had killed Toscan du Plantier who had been bludgeoned to death with a rock or a stone.
Amanda Reed told the Paris trial that Malachi told her that Bailey had been drinking at the time and he was terrified as he drove him home but her son was never pressurised into making a statement about it by gardaí and he stood over his statement to this day.
The trial in Paris also heard similar evidence in summary from a statement by Richie Shelley who told gardaí that he and his wife, Rosie had gone back with Bailey and Thomas to their house at the Prairie on New Year's Eve 1998 after a night socialising in Schull.
Shelley told both the libel case and the High Court that Bailey got out a scrap book of cuttings about the murder and began talking about the killing before breaking down in tears, saying “I did it, I did it - I went too far,” which he interpreted as an admission he had killed Toscan du Plantier.
His wife, Rosie Shelley, who died earlier this month, testified at Bailey's 2003 libel action that they spent almost two hours with Bailey and Thomas that night and the conversation was "almost entirely about the murder" with Bailey leading the conversation on the subject.
“He just seemed to have it on his mind - he just seemed to be quite obsessed with it and he wanted to talk about all the different angles and what we thought about it,” she said, adding that they had decided to leave when Ian Bailey suddenly broke down.
“It happened in the kitchen where I was waiting . . . he ( Bailey) came out, he put his arms around Richie, he was crying and he said ‘I did it, I did it’ . . . It was very clear and succinct,” she said, adding that she believed he was admitting “that he had murdered Sophie Toscan du Plantier”.
“It was an immediate recognition that he was doing some sort of confession,” said Shelley, explaining she based her interpretation of what Bailey said on the fact he been speaking almost entirely about the murder before that but her statement was not read into evidence in France.
The French trial did hear a statement from then Sunday Tribune News Editor, Helen Callanan - for whom Bailey had reported on the killing - who told how she asked Bailey in early February 1997 about rumours he was a suspect and he replied: “It was me, I did it. I killed her. I did it to resurrect my career.”
The other witness who travelled from Ireland, Billy Fuller, also told the court about an exchange he had with Bailey in late January 1997 which he interpreted as an admission by Bailey, given his tendency to speak about himself in the second person, that he had killed the French film producer.
“He said ‘you killed her - you saw her in the shop with her tight arse and you fancied her so you went up there to see what you could get but she ran away screaming and you chased her to calm her down - she was scared so you stove in the back of her head - you realised you went too far so you finished her off.”
This French focus on admissions is very evident in the indictment's reference to Martin Graham. Although Graham, who died on March 10th last, has featured previously for alleging gardaí offered him drugs to get Bailey to confess, the French focus was on his first encounter with Bailey.
Graham, a former British soldier who served in Northern Ireland, met Bailey at the home of Bailey’s friend, Russell Barrett at Mohonagh outside Skibbereen following Bailey’s release from custody after his first arrest on February 10th, 1997.
Graham said Bailey was talking about how gardaí had put it to him that he had gone walkabout and blacked out about going up to Sophie Toscan du Plantier’s house and killing her and at one point, Bailey turned to him and said “If this is what happened, then I did.”
It seems strange the French would include Graham’s evidence which, from a prosecutorial point of view, is at best a conditional admission of guilt while ignoring another statement, available on the Garda file, which was aired in the High Court where another witness alleged Bailey confessed to the killing.
James McKenna from Newry in Co Down was attending a wedding in Schull on April 10th, 1997 and on April 8th was with his wife, Diana in the Galley Inn when they got into conversation with Ian Bailey and Jules Thomas during which Bailey asked him had he heard about the murder in Schull.
McKenna replied that he had seen it on a news report on television in the North whereupon Bailey “looked him straight in the eye” and said in “a deliberate voice - ‘That was me’ and he smirked’, leaving McKenna in no doubt but that Bailey was admitting that he was the killer.
In Bailey’s defence, he has dismissed Callanan’s statement as simply that he was engaging in black humour while he claimed in the case of Malachi Reed and the Shelleys, he was simply repeating what locals were saying about him - ie, “People say I killed her” rather than “I killed her”.
Bailey agreed in the High Court that he had a discussion with McKenna in the pub but he denied ever saying that it was he who killed Toscan du Plantier while he has similarly denied ever making the comment to Fuller, even in the second person.
It should also be pointed out that Amanda Reed’s evidence in France would not be admissible in an Irish court as it is hearsay while the statement of the late Martin Graham about what Bailey said to him on the night of his release by gardaí would also be ruled inadmissible under Irish law as he is now deceased.
‘Material evidences’
Given the lack of DNA evidence from the scene that would help identify Ms Toscan du Plantier’s killer, it is perhaps entirely logical that gardaí would seek out people with any signs or marks of having being involved in a fight or struggle such was the ferocity of the attack on the 39-year-old mother of one.
Gardaí were looking for anyone with marks or scratches and on December 27th, 1996, Garda Kevin Kelleher from Schull and Det Garda Bart O’Leary from Bantry noticed Ian Bailey had scratches on his hand as he bought a copy of The Irish Times in Brosnan’s newsagents in Schull, the French trial heard.
They called to see him at his home at The Prairie, Liscaha, Schull the next day to follow up on a questionnaire he had filled in and they again saw his scratches and when they asked him how he did he get scratched, he said he got them when cutting the top off a Christmas tree.
“When he removed his coat, the police noticed that the cuts and scratches ran up to the elbows and according to the investigators, they were scratches caused by brambles and were in the process of healing - they also noticed a deep cut on the right side of Ian Bailey’s forehead,” the French indictment noted.
Bailey later elaborated on how he sustained his scratches, telling gardaí in his interview that he got them from killing the turkeys - which Jules Thomas put down as happening around noon on Sunday December 22nd when he also went and cut off the top of a Christmas tree with her daughter, Saffron.
Meanwhile Thomas told gardaí, and it was recalled in evidence in France, that when Bailey brought her coffee in bed at around 9am on December 23rd, she noticed a mark on his forehead and he told her that he had got it from a stick but he didn’t elaborate exactly how or where it happened.
Both Saffron Thomas and Ginny Thomas told gardaí that Bailey sustained the scratches to his hands and the mark to his face while cutting down a Christmas tree and killing three turkeys on the morning of December 22nd, supporting Bailey and Thomas’s version of events.
The French case, like the Garda file, focused on when Bailey sustained the scratches to his hand <br/>
To test Bailey’s thesis about sustaining the scratches while cutting down the Christmas tree, gardaí got Garda Kevin Kelleher to climb up the tree that Bailey said he had climbed and he did not get any scratches to his hands, the court heard.
Gardaí also asked forester, John Brennan for his opinion in June 1997 when they showed him the tree which Bailey climbed – which was not surrounded by any brambles or briars – and he said it was highly improbable that someone would have covered themselves in many scratches while cutting it.
During the trial in Paris, Judge Didier Forton asked Irish witness Billy Fuller, who sells Christmas trees each December, if it was possible to get some scratches from handling a Christmas tree and Mr Fuller said that a person could end up with red marks on their skin but not scratches from a Christmas tree.
The French case, like the Garda file, focused on when Bailey sustained the scratches to his hand and drew heavily on several witnesses who had met him in the pub on the night of Sunday December 22nd – several hours after he said he got the scratches from the turkeys and the Christmas tree.
Among the witnesses, whose statements the French relied on, were those of sisters, Bernie and Sinead Kelly, who were both in the Galley Pub and near Bailey when he was playing the bodhrán between 11pm and midnight on December 22nd and neither of them noticed any marks or scratches on his hands and face.
Another witness, Chris Lynch, who had worked with Bailey in a fish factory in Schull for several months, told gardaí he saw him in the Galley Bar at about 11pm and spoke to him, but he again could not remember seeing any scratches on his hands or arms.
Venita Roche-Galvin, whose husband David owned the pub, told gardaí she had spoken to Bailey for 15 minutes and had not noticed any marks on his hands or face. Barman John McGowan, who served Bailey five times during the night, also did not notice any marks on his hands or face.
Musician Richard Tisdall told gardaí that Ian Bailey played the bodhrán with his group that night and he noticed that he had his sleeves rolled up to play the instrument but he saw no marks on his face and only one scratch on his hands, without specifying which hand.
The statements of witnesses who met Bailey on the night of December 22nd and saw no scratches contrasts with that of Arianna Boarina, who told of arriving in Schull on the afternoon of December 23rd to stay with Thomas's daughter, Ginny, for Christmas and seeing scratches on Bailey.
“When I arrived at Jules’s house, I met Jules’s boyfriend, Ian, and I immediately noticed heavy marks from scratches on both his hands. They were numerous on both hands and they were up as far as his forearms and they were fresh,” said Ms Boarina whose statement was read into evidence in Paris.
Bailey was agitated and drinking a lot and at some stage either Thomas or Bailey told her that the scratch marks were caused by Bailey either cutting a Christmas tree or killing turkeys. “In my own mind, I doubted this as the scratches were too numerous and too severe,” she said.
Boarina told gardaí that she believed it was more likely that the scratches came from plants with sharp thorns rather than from a Christmas tree and the only Christmas tree she saw at the house was a small one which was decorated with chocolate for the festive season.
But another witness, butcher Con O'Sullivan of Main Street, Ballydehob, told gardaí in his statement, that when Bailey delivered him a turkey on the morning of December 23rd, in keeping with a deal he had agreed with Thomas, he did not see any marks or scratches on Bailey's hands.
Yet by December 24th, another witness, Lowertown Creamery employee Denis O’Callaghan, told how when Bailey called at about noon to buy a new blade for a saw, he noticed several scratches on the back of his left hand that looked as if they caused by briars.
By Christmas Day, Bailey’s scratches were clearly evident, according to witness Mark McCarthy, who saw Bailey and Jules Thomas at the Christmas Day swim in Schull and told gardaí he noticed a mark on Bailey’s right temple, which Bailey or Thomas said was sustained when he killed a turkey.
McCarthy also told how he was with Saffron Thomas when she visited her father, Michael Oliver, over Christmas and she told him the scratches she had on her hands were from cutting down a Christmas tree and it was she, and not Bailey, who had cut down the tree and he was lying if he said otherwise.
And Michael Oliver, now deceased, also made a statement to gardaí to the effect that his daughter told him that Ian Bailey was “a lazy bastard” and that he did not even want to get them a Christmas tree and that she had to cut the tree and bring it into the house herself.
Summing up
In his summing up of the prosecution case, public prosecutor, Jean Pierre Bonthoux, cited the importance of the testimonies of the witnesses in the Galley Bar who noticed no scratches on Bailey’s hands and arms on the night of Sunday December 22nd, only for others such as Arianna Boarina to notice them the following day and afterwards.
In his summing up, Bonthoux also addressed claims that it was “a trial without evidence”, but it was contrary to common sense to think that DNA evidence and video evidence were the only types of evidence that could be accepted by a court.
And he criticised the manner in which the Director of Public Prosecutions (DPP) in Ireland had handle the case, rejecting the conclusions of a 2001 review by solicitor Robert Sheehan, of the DPP's office, that there was no evidence against Bailey and saying instead that the material evidence and testimony against Bailey were "overwhelming".
He accused the DPP’s office of taking every piece of evidence and systematically trying to “invalidate it – as the document is not signed, not dated, I initially thought it was written by Bailey’s lawyers – the language is always conditional when it is against Bailey, affirmative when it clears him”.
It should be noted that following the trial, former DPP James Hamilton issued a statement to the Sunday Independent in which he pointed out that upon his appointment in 1999, he reviewed the decision of his predecessor Eamonn Barnes that there was insufficient evidence to try Bailey.
He felt there was still insufficient evidence to merit a charge against Bailey and he again reviewed his decision some years later and again decided there was insufficient evidence, said Hamilton, adding that all three decisions not to prosecute did not amount to a failure to exercise his function.
“In Irish law, it is possible to convict a person only on the basis of admissible and credible evidence given orally in court 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.
“Evidence means facts which prove the case against the accused and does not include material which is merely prejudicial such as hearsay, rumour, innuendo, speculation, suspicion, gossip and evidence of bad character lacking any evidential link to the offence charged,” he added.
“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,” said Hamilton, adding that his knowledge of the French trial was based entirely on media reports.
Judge Aline in the course of a 10-page judgement that took over 30 minutes to read, went over the circumstances of the murder and the medical evidence before turning to the evidence presented against Bailey by the prosecution through oral testimony and witness statements.
She addressed the question of the scratches seen on Bailey’s hands by several witnesses on Monday December 23rd and the fact that several witnesses said they had not seen them the night before – December 22nd – even though it was after when he said he got them from killing turkeys and cutting down a Christmas tree.
She also focused on how Bailey had said he didn’t know Toscan du Plantier and yet several witnesses told gardaí the contrary, as well as how he said he didn’t learn of the killing until he received a phonecall from Eddie Cassidy at 1.40pm yet seemed to know details about the victim before then.
“There is a lack of credibility in the explanations of Ian Bailey for the scratches he had after the crime and which were described in a corroborative manner by witnesses who believed they were briar scratches and were similar to those found on the victim caused by briars at the scene of the murder,” she said.
“There is also a convergence of evidence from witnesses which established that Ian Bailey knew where the body had been found and the nationality of the victim before these details were publicised and he also offered photos of the crime scene to newspapers, again supporting this thesis,” she added.
Judge Aline also referred to the original statement of Marie Farrell about seeing Bailey at Kealfadda Bridge at about 3am on December 23rd and evidence from Thomas in one statement that he was missing from home for one hour which was compatible with the time needed to kill Toscan du Plantier and return home.
Convicting Ian Bailey, Judge Aline took into account the violence of the murder, with the killer using a concrete block, and the fact that Bailey had admitted assaulting his partner in the past, before she sentenced him in absentia to 25 years in jail for the killing.
Bailey's solicitor, Frank Buttimer, was quick to dismiss the entire procedure, saying it was nothing more than "a show trial" designed "to rubber stamp the predetermined belief of those in authority in France that Ian Bailey was the person who killed Ms Toscan du Plantier".
Buttimer had perhaps half an eye on the court of public opinion when he described Bailey's conviction as "a grotesque miscarriage of justice", which, with its echoes of the Birmingham Six, Guildford Four and Maguire Seven in the UK, would have a strong resonance with an Irish audience.
But while Buttimer is shrewdly aware of the importance of public perception in the whole Bailey/Sophie saga, there was no gainsaying his more pithy observation that anybody who believes events in Paris were in any form comparable to an Irish criminal trial was completely mistaken.
And therein lies the nub – the very different justice systems with the differences exacerbated more than was usual in Bailey’s case, not just because Bailey was absent but, perhaps more pertinently, because he was not legally represented and the prosecution could present its thesis without challenge.
Just how the case would have played out under French law if Bailey was legally represented – and it should be remembered he chose not to be legally represented, doubtless to avoid conferring any legitimacy as he would see it on the French process – it is impossible to say.
But what can be said is that what transpired in Paris where evidence was given and it seems accepted without being tested as it would in Ireland by rigorous cross-examination, resulted in a process that seems very alien to what we are familiar with and what we believe to be justice.
Who could blame Toscan du Plantier's family for campaigning to have the man they believed killed their loved one tried in France?
Undoubtedly, it would seem the bar is set lower in France than in Ireland with nothing to suggest a decision had to be beyond reasonable doubt – it seems at odds with the reminder, frequently cited in Irish courts, that it is better that 99 guilty people walk free than one innocent person be convicted in the wrong.
That said, the French system has worked satisfactorily for France and its citizens for years and given the decision by the Irish authorities not to indict Bailey here, who could blame Toscan du Plantier’s family for campaigning to have the man they believed killed their loved one tried in France?
Where the case goes from here is far from predictable – the French issued a new European Arrest Warrant on June 21st which was endorsed by the High Court and executed on December 16th, resulting in the arrest of Bailey, his release on bail and a fully contested High Court hearing some time in 2020.
But as Toscan du Plantier's family lawyer, Alain Spilliaert, has predicted, it is probable that whatever happens in the High Court, the side that loses will appeal the decision to the Supreme Court where the question of whether Mr Bailey is to be extradited or not will ultimately be decided.
If Bailey is extradited to France, then Alain Spilliaert has said he would be retried, present in the dock and with legal representation “on an equitable basis” which would presumably lead to a more rigorous examination and testing of the case against him.
Indeed, the fact that the French prosecution chose not to call so many witnesses – including, notably, serving Garda witnesses who could have been compelled to attend – for the trial in May suggests they felt confident they were going to secure a conviction without availing of everything in their armoury. And it leads to the suspicion that the French criminal justice system may have seen the trial in May as nothing more than “a dry run” for a fully contested case which they would hope to hold if they are successful in their third attempt to have Bailey extradited to France.
Real fear
For Ian Bailey, the prospect of extradition to France is a very real fear, one which, he admitted last week, could see him die in a French jail given the length of the sentence he is currently facing and the prospect of a similar sentence awaiting him if convicted following a new trial in Paris.
“Realistically it is a possibility I could end up spending the rest of my days in a French prison – philosophically, we all have hopes and dreams and aspirations but none of us know from day to day what is going to happen,” he said.
“Clearly, there is a possibility that I might finish up in France and if that happens, just do the sums – I’m 62 years old and with a 25 year sentence hanging over me, so yes, it is a fear that I have,” he told The Irish Times.
Bailey's lawyer, Frank Buttimer, has ruled out going to the European Court of Human Rights, saying he has confidence in the Irish judicial system to vindicate his client's rights, but Europe remains an option to either try and oppose any possible extradition to France or overturn his conviction.
Meanwhile Ian Bailey lives in a sort of legal limbo – grateful to the Supreme Court for providing him with at least temporary sanctuary to continuing selling his pizza and poetry in west Cork and all the time, his name and life remaining entwined and entangled with the name and death of Sophie Toscan du Plantier.
