Bailey v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,Mr. Justice George Birmingham
• Judgment Date: 26 July 2017
• Neutral Citation: [2017] IECA 220
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2015/503
• Date: 26 July 2017

[2017] IECA 220

THE COURT OF APPEAL

Birmingham J.

Hogan J.

Finlay Geoghegan J.

Birmingham J.

Hogan J.

Record No. 2015/503

BETWEEN/

IAN BAILEY

PLAINTIFF / APPELLANT

- AND -

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS/ RESPONDENTS

Conspiracy – Damages – Statute-barred – Appellant seeking to challenge statute-barred ruling – Whether the action should have been regarded statute-barred

Facts: The plaintiff/appellant, Mr Bailey, alleged that members of An Garda Síochána involved in the investigation of the murder of Mme du Plantier engaged in a conspiracy to injure his reputation and to violate his constitutional rights. Specifically, his contention was that they sought to procure statements from a number of persons, including Ms Farrell, which either incriminated Mr Bailey or which placed him close to the scene of the crime in a manner which was either unlawful in itself or actuated by malice and improper motives. The reliefs claimed in the plenary summons were: (i) damages, for unlawful arrest, false imprisonment, malicious prosecution, assault, battery, and trespass to the person, intentional infliction of emotional and psychological harm, harassment, intimidation, terrorising and oppressive behaviour, severe personal injuries; (ii) aggravated damages in that the defendants/respondents, the Commissioner of An Garda Síochána, the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General, their servants or agents, engaged in abuse of authority and continued their actions against the plaintiff when they knew or ought to have known that no such actions were justified and amounted to continuing assault and trespass to the person of the plaintiff and were continued in a malicious manner against the plaintiff; (iii) costs incidental to and arising from the proceedings; (iv) interest pursuant to statute. The plenary summons was supplemented by a statement of claim which included new claims, namely damages for conspiracy, unlawful means conspiracy and breach of his constitutional rights. The proceedings ultimately came on for trial in the High Court (Hedigan J and a jury) on 4th November 2014. Hedigan J ruled that most of the plaintiff’s claim was statute-barred. He did rule that part of the “over-arching” conspiracy claim was not statute-barred and, in the event, two specific questions were put to the jury regarding the alleged suborning of Ms Farrell to give evidence and to make statements implicating Mr Bailey in the murder and the jury ultimately ruled adversely to the plaintiff. The plaintiff appealed to the Court of Appeal against that decision and verdict, challenging the statute-barred ruling and particular rulings in relation to the admissibility of certain evidence. The State parties cross-appealed contending that the entire action should have been regarded statute-barred.

Held by Birmingham J and Hogan J that it would not be unfair to permit the State defendants to raise the application of the Statute of Limitations 1957. The Court held that the rest of the plaintiff’s claim in respect of nominate torts and breaches of constitutional rights were statute-barred and that the claim in respect of the alleged unlawful disclosure by members of the Gardaí of confidential information prior to the hearing of the defamation proceedings was not statute-barred. The Court agreed with the ruling of Hedigan J to the effect that if the plaintiff’s fundamental contention was correct and there had been a conspiracy on the part of the Gardaí to suborn Ms Farrell as a witness, this constituted a continuing conspiracy which operated die de diem. The Court agreed with the trial judge’s rulings in respect of the evidence of Messrs Sheehan, Hamilton and Barnes. The Court also agreed that the trial judge was correct to exclude the proposed evidence of Mr Quick following a voir dire in the absence of the jury. The Court considered that it was permissible for the trial judge to administer the warning to Ms Farrell.

Birmingham J and Hogan J held that, save in one minor respect, the appeal should be dismissed and the cross-appeal should also be dismissed. The Court would allow the appeal in respect of the ruling that the claim in respect of the alleged wrongful disclosure of the information by the Gardaí in advance of the defamation proceedings in December 2003 was statute-barred and direct a re-trial in respect of that part only of the plaintiff’s claim.

Appeal dismissed (but re-trial on wrongful disclosure).

JOINT JUDGMENT delivered by Mr. Justice George Birmingham and Mr. Justice Gerard Hogan on the 26th day of July 2017

Part I: General Introduction

1 At some stage in the late evening of Sunday, 22 December 1996 or the early morning of Monday, 23 December 1996, the French film producer, Mme. Sophie Toscan du Plantier, was brutally murdered outside her holiday home which was located near Toormore, Schull, Co. Cork. Mme. du Plantier's body was later found in the lane leading to her house in the course of the mid to late afternoon of 23rd December 1996.

2 No person has to date ever been charged with her murder in this jurisdiction. The failure to apprehend her killer and the circumstances which surrounded the subsequent police investigation have all given rise to enormous controversy in the twenty years which have ensued in the interval.

3 As might be expected, the murder shattered the tranquillity of the West Cork community and gave rise to a major Garda investigation. The plaintiff, Mr. Ian Bailey, was the major focus of this investigation. Mr. Bailey is a British journalist who resides in Schull. It is only fair to record that he has always steadfastly denied any involvement in the murder.

4 Mr. Bailey was, however, twice arrested – once on 10th February 1997 and then subsequently on 27th January 1998 – in relation to this murder. The plaintiff's dwelling was searched on 21st September 2000. While files were sent to the Director of Public Prosecutions, the DPP decided that there was insufficient evidence to justify a prosecution against Mr. Bailey. This decision not to prosecute has, apparently, been reviewed by the Director on a number of occasions, most recently in 2007, but the original decision has always been confirmed. The reasons for the decision not to prosecute have been set out in a detailed document (running to some 44 pages) prepared by Mr. Robert Sheehan in May 2001, who was then a senior official employed in the DPP's office. This document loomed large in evidence given in the High Court and we propose to return to this matter at a later stage in this judgment.

5 Returning, however, it the narrative, it should also be said that the French Republic sought the surrender of Mr. Bailey in respect of the murder of Mme. du Plantier pursuant to the provisions of the European Arrest Warrant Act 2003. Mr. Bailey was arrested on 23rd April 2010 pursuant to that request and then released on bail on the following day. This request was ultimately refused by the Supreme Court by a decision of 1st March 2012: see Minister for Justice, Equality and Law Reform v. Bailey [2012] IEHC 16, [2012] 4 I.R. 1.

6 How, then, did these events give rise to the present proceedings? Shortly put, Mr. Bailey has alleged that (named) members of An Garda Síochána involved in the investigation engaged in a conspiracy to injure his reputation and to violate his constitutional rights. Specifically, his contention was that they sought to procure statements from a number of persons – including a Ms. Marie Farrell – which either incriminated Mr. Bailey or which placed him close to the scene of the crime in a manner which was either unlawful in itself or which, even if the means were lawful, was actuated by malice and improper motives. Ms. Farrell was, in many respects, one of the most critical witnesses in the course of this trial, since she was the only person who has ever made a statement (which she has since retracted) which identified a person corresponding to Mr. Bailey close to the scene of the crime, namely, an alleged sighting at Kealfadda Bridge on 23rd December 1996.

7 The present proceedings were accordingly commenced on 1st May 2007. The reliefs claimed in the plenary summons were in the following terms:

‘(i). Damages, for unlawful arrest, false imprisonment, malicious prosecution, assault, battery, and trespass to the person, intentional infliction of emotional and psychological harm, harassment, intimidation, terrorising and oppressive behaviour, severe personal injuries.

(ii.) Aggravated damages in that the defendants, their servants or agents, engaged in abuse of authority and the defendants and their servants and their agents continued their actions against the plaintiff when they knew or ought to have known that no such actions were justified and amounted to continuing assault and trespass to the person of the plaintiff and were continued in a malicious manner against the plaintiff.

(iii.) Costs incidental to and arising from the proceedings.

(iv.) Interest pursuant to statute.’

8 It is, perhaps, only fair to observe at the outset that the plenary summons was supplemented by a very detailed statement of claim delivered on the 8th August 2007. The prayer for relief included some new claims as follows:

‘And the plaintiff therefore claim damages for unlawful arrest, false imprisonment, conspiracy, unlawful means conspiracy, assault, battery, trespass to the person, intentional infliction of emotional and psychological harm, harassment, intimidation, terrorising and oppressive behaviour and breach of his constitutional rights.’ (emphasis supplied)

9 The claims we have taken the liberty of highlighting are new. Possibly through an oversight, however, there is no claim for either malicious prosecution or personal...