[Solicitor Frank Buttimer, Jules Thomas and Ian Bailey outside the Four Courts in 2012]

Frank Buttimer, the solicitor representing Ian Bailey and his partner Jules Thomas in their civil action against the State, spoke to Cathal MacCoille this morning on Morning Ireland in relation to his clients.

His interview this morning came ahead of today’s Cabinet discussion about the terms of reference of the commission of investigation into the recording of incoming and outgoing Garda station phonecalls over the last three decades, and a motion of no confidence against Justice Minister Alan Shatter – which will be debated in the Dáil tonight and tomorrow night.

Cathal MacCoille: “Could you just summarise for us, first of all, what you are alleging in this case?”

Frank Buttimer: “Very simply, Cathal, we’re alleging that there was a conspiracy to secure the improper prosecution of Ian Bailey based upon improper Garda practices in terms of evidence gathering and all that flows from that…[inaudible]

MacCoille: “And is, up to this stage, is the State denying everything?”

Buttimer: “Absolutely, we’re being required to prove everything. And that’s what we’re hoping to do Cathal.”

MacCoille: “When did you become aware of the existence of, or the possibility of the existence of recorded phone conversations?”

Buttimer: “Formally, last year, in the course of discovery proceedings which we took to secure, which we’re entitled to do, it’s common in any civil proceedings, we made a discovery application to the court and that process, I suppose, crystalised in May of last year. There were further sort of clarifications of the order that we got in May of last year in July. Then we got further delivery of material in terms of discovery of matters late last year. So it’s been a process which has been ongoing for some time. Now, however, I must say Cathal, this couldn’t be any secret at this point in time, the 2001 critique that was done by the then DPP [Director of Public Prosecutions] revealed to us that we saw in 2011, in the extradition proceedings, it revealed, which we already knew anyway, allegedly highly questionable practices which were commented upon by the Supreme Court in trenchant terms, during their dealings with the extradition appeal.”

MacCoille: “But the phonecalls, when you said you ‘formally became aware of them’ last year, informally?”

Buttimer: “I’d rather not get into the detail of the case, Cathal, because I suppose assuming that it is the case that’s exercising everybody’s concern, it is a matter that is pending before the court, you know, in fairness as well.”

MacCoille: “Well you have received documents under discovery, is the process of discovery, from the State by you, is it complete?”

Buttimer: “No, the discovery process is ongoing and I suppose it’s public knowledge again that we have to go back into the High Court to have the court adjudicate upon a claim that the State is making, with regard to the issue of privilege. In other words, where there are materials that are possessed by one side to the case, to the case, that side can claim privilege for all manner of reasons and the State is claiming privilege in relation to certain significant materials. The reason, essentially, why the State is claiming privilege is, is that it is in the public interest that these materials which they don’t want us to see should not be given over to us. We maintain, and reply to that, that privilege is defeated by fraud in effect or by malpractice and we will be strongly arguing for the High Court that the State has no leg to stand on in relation to such an assertion. In other words, that the public interest, the interest of the State should be served by not revealing what we consider to be these highly questionable practices.”

MacCoille: “Just to be clear about this. You received material from, as I understand it, from the State about 11 days ago, which related to phonecalls or transcripts of phonecalls?”

Buttimer: “Again, I won’t comment on specifics, all I can confirm is that the discovery process is ongoing, I must say Cathal, I’m reading about my own case as much in the media as I am dealing with it myself.”

MacCoille: “Just to be clear about this though: You received material 11 days ago, and are you telling us that the State is seeking to, they’ve given you the material, but they want the court to hold that as privilege, in other words that it can’t be used and can’t be disclosed?”

Buttimer: “No, to be fair, we have received a certain amount of material, the argument has yet to occur about whether we should receive material over which the State is claiming privilege, that is Judge [John] Hedigan, that argument has to be determined by the High Court judge who is managing this case that application is pretty much pending at this point in time, we’re just doing some paperwork on it.”

MacCoille: “Yeah, so, ok, can we assume that material related to phonecalls which you have been given, that’s, the State isn’t going to claim privilege over that and that we will hear about it?”

Buttimer: “Again, I would rather just to maintain my position on that at the moment, Cathal, because it touches upon matters that are between myself and the office of the State solicitor presently.”

MacCoille: “All right. So, OK, is the position, of material that you have, whatever it is you don’t want to go into details. But the material that you have, the State is not claiming privilege over that material, that you have already? The State is, or maybe, claiming privilege over other material which you haven’t yet got?

Buttimer: “Correct.”

MacCoille: “So how long is this going to take before it comes to court?”

Buttimer: “Well, you know, when you’re dealing with the State and maybe my own situation as well, it’s taken a while but, you know, you must remember the proceedings, by the way, Colm, have been in being since 2006 or 2007. We had the interruption people I’m sure are aware in the meantime of the attempt by the State, well the French state actually to remove Mr Bailey from the jurisdiction and all sorts of other activities in the meantime. So it’s been a, it’s been a  great battle.”

MacCoille: “And it’s ongoing. Just to return to the phonecalls. I know you don’t want to go into details but you said you became aware of these formally last year and they were referred to rather obliquely, I think in the High Court but on relation to the phones material, are you satisfied, you’ve got what’s there?”

Buttimer: “Well I have what I have, is as much as I can tell you?”

MacCoille: “Well are you satisfied with what you have? That the discovery in relation to the phones issue that you raised a year ago, that you’ve got what you wanted to get?”

Buttimer: “You’re asking me if I’m satisfied with what I have. I firmly believe, and my client is alleging this, that is a gross conspiracy, in conspiratorial matters, there are many, many things I’m sure that went on that I would love to access and I’m going to keep on trying.”

MacCoille: “All right, Frank Buttimer, solicitor for Ian Bailey and Jules Thomas, thank you very much for talking to us.”

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Laura Hutton/Photocall Ireland