THE REPORT of the Mahon tribunal is to be referred to the Director of Public Prosecutions and the Garda. However, they will not be able to use any of its contents to mount prosecutions.
Tribunals of inquiry cannot make findings of guilt or innocence in relation to any criminal charges. Nor can they make findings of civil liability. Tribunal findings are only the opinions of their members and as such are “legally sterile”.
Given the link between the culture described in the Mahon report and the ill-fated building boom, the public is likely to hope for successful prosecutions of those found to have made or received corrupt payments. But such a tribunal finding cannot be a basis for a prosecution.
In order to prosecute, the DPP must independently assemble evidence that a specific offence was committed, and be satisfied that this evidence proves the offence beyond reasonable doubt.
In addition, the offence must be one under the law as it was at the time it was allegedly committed. Twenty years ago, in relation to corruption, it was necessary to prove that a person both received and accepted money specifically as an inducement or an award for a specific act. That changed in 1999, where inferences could be drawn from a public official receiving money.
At most, the evidence and conclusions contained in the Mahon report provide a road map for the Garda to carry out its own investigation.
“Nothing in a tribunal report in itself proves anything,” the former DPP, James Hamilton, told The Irish Times when the first Flood report was published.
“There is a statutory provision that any admissions people make cannot be used in a prosecution. All the DPP can do is ask the gardaí to investigate. When the gardaí go out to the person he can say, ‘my solicitor has advised me to say nothing’.”
In addition, many of the events described in the report happened two decades ago, and some of those involved are dead or too infirm to be reliable witnesses.
The fact the tribunal did not believe the evidence of some of the central figures who appeared before it raises the question as to whether they could be charged with perjury. In theory they could, in that it is an offence to give false evidence on oath. But this will be extremely difficult to prove and again must be independently investigated by the Garda.
Some of those who appeared before the tribunal have had to confront the prospect of paying their own legal costs. They may yet have to do so. But such a prospect has been greatly reduced by a Supreme Court ruling that a tribunal could not impose costs for obstruction, as this was outside its terms of reference.
The tribunal is entitled to take into account lack of co-operation by a party when addressing costs, but, as people were expected to co-operate with a tribunal, the ordinary presumption should be in favour of cost reimbursement.