Tribunal's opinion worthy of respect - but it is not infallible

If nothing else, a light has been shone on the rot in Irish politics of the late 1980s and 1990s

GIVEN THE time that went into its preparation and the stark findings it makes, it was only fitting that the final report of the planning tribunal received wall-to-wall coverage.

Equally, given the length of the report, it was inevitable that much of the initial reaction was based on the summary of its findings rather than a reading of the entire document.

A week later, with more time to delve into the document, some nagging questions recur. What do we know now that we didn’t 15 years ago? What evidence is there for the findings in the report? Was the tribunal justified in making the findings that it made?

I spent almost seven years of my working life reporting on proceedings at Dublin Castle. I bowed out of tribunal reporting because of concerns about another nagging question – how much is this going to cost? But with the report newly published, that issue is for another day.

As for the report, it is centrally based on the evidence of two men, former government press secretary Frank Dunlop and developer Tom Gilmartin.

Dunlop, who had more than £500,000 available to pay to councillors, has already done time for corruption but fessed up to the tribunal back in 2000. However, the report finds that he continued to mislead the inquiry after this date, despite protestations of complete co-operation. There is no independent corroboration for most of his evidence about payments to politicians. The task for the tribunal in separating truth from lies in his evidence must have been tricky, to say the least.

Gilmartin emerges from the report as the hero of the hour. The only witness to have been granted immunity from prosecution, he gave evidence “in the honest belief that such evidence was true and accurate”.

The report upholds many of his allegations and only mildly ticks him off for the “misconceived and entirely inappropriate” £50,000 payment to Pádraig Flynn, the circumstances of which involved “an element of duress or coercion”.

The tribunal says that in assessing the reliability of information provided by a witness, it took into consideration whether the person had made an earlier statement which was either consistent or inconsistent with the evidence given.

On this score, Gilmartin’s evidence, with its multiple contradictions, must have scored poorly.

The report acknowledges his “poor recollection” and that he “conflated different pieces of information provided to him by different sources”. His identification of sources was “not always accurate, nor always consistent”.

Over the years, he has related the story of how political intrigue and graft defeated his efforts to build a shopping centre in west Dublin to journalists and solicitors, and to tribunal lawyers in private and later at public hearings. Along the way, that story has changed repeatedly, with new bits appearing unexpectedly and established details being altered.

It is undoubtedly true, as the tribunal states, that Gilmartin came under sustained attack over his allegations. It is also the case that some of the allegations he made put others in an unfavourable light, sometimes unfairly.

The tribunal fought a long, expensive and ultimately unsuccessful court battle to keep many of these earlier, conflicting versions of Gilmartin’s story out of view. Its final report grapples with some of these allegations, but merely lists others without investigation and completely fails to mention others.

Among the developer’s allegations that did not make it into the report was a claim Ray Burke was paid up to £750,000 to resign as minister for foreign affairs to forestall the setting up of the tribunal and that Bertie Ahern was behind this plan. Gilmartin claimed he was told this by his solicitor Seamus Maguire but Maguire said it was a “fabrication”.

Then there was the allegation, alluded to by Mr Justice Adrian Hardiman in a Supreme Court judgment in 2007, that rival developer Owen O’Callaghan indirectly brought about “the demise of a deceased office holder”.

There is also the claim that O’Callaghan connived in the appointment of an important public servant to a position that could benefit the developer.

The report makes no mention either of Gilmartin’s claim that O’Callaghan had the line of the Lee tunnel in Cork altered to suit his plans for a nearby shopping centre site. This allegation couldn’t be true because the line was decided at least six years before O’Callaghan bought the site.

Another claim was Albert Reynolds raised more than a million dollars on a fundraising trip in the US after the northern peace settlement. “However, only £70,000 was handed over to Fianna Fáil. The rest was lodged in accounts in the Dutch Antilles and in Liechtenstein,” Gilmartin told a tribunal lawyer in 2002. At one point, he said the source of information was relatives in the US, although the only name proffered was that of a dead person. Another time, he said an anonymous banker told him about Reynolds’s alleged accounts in the Dutch Antilles. The report found there was no evidence for the allegation, but made no comment about the issue of sources.

A person can of course be mistaken about the details of an allegation that happened years before but right about the central thrust. But it’s worth noting that some of the variations in evidence had the effect of putting O’Callaghan in the centre of the action.

For example, the tribunal accepted Gilmartin’s allegation he was approached by an unknown man in Leinster House who told him to lodge £5 million to an offshore bank account. This followed a meeting with then taoiseach Charles Haughey and several Fianna Fáil ministers. Yet when Gilmartin first made this allegation in private to the tribunal – and the report makes no mention of this – he linked O’Callaghan to the incident. He said he saw O’Callaghan talking to Albert Reynolds in an alcove and that he had remarked to O’Callaghan that he (Gilmartin) was fed up with him and his gangster friends. As Mr Justice Hardiman states in his 2007 minority judgment, the allegation “dropped out of sight”.

In another example, Gilmartin gave evidence to the tribunal about being asked by Cllr Finbarr Hanrahan for £100,000 in 1988, adding that O’Callaghan asked after “did he tap you?”

Yet when he first told the tribunal about the incident, there was no mention of O’Callaghan’s dubious remark.

In another allegation, Gilmartin accused O’Callaghan and his solicitor of falsifying a document. Yet in his account to his own lawyers, he said one of his own previous solicitors had made a mistake.

There are many other contradictions, for example relating to Mary Harney’s knowledge of political payments, the Denis “Starry” O’Brien affair or the location of his £50,000 Fianna Fáil payment to Flynn.

In 2004, Mr Justice Hardiman said in a Supreme Court judgment that “there is not much if anything in the way of objective or independent corroborating evidence” for Gilmartin’s allegations against O’Callaghan.

So what has changed in the meantime?

There is little I can find in the 3,270 pages of the report that is put forward as corroborative evidence in support of Gilmartin’s evidence.

The main corroboration – in fact, the only evidence explicitly cited as corroboration – is Eamon Dunphy’s account of his conversations with O’Callaghan, from which he “inferred” that the developer had bribed Bertie Ahern and other politicians – the words “money” or “corruption” were never mentioned. In evidence, Dunphy took great umbrage that he might have been motivated by a desire to “wreak revenge” for a perceived wrong done to his friend Frank Connolly, the journalist who first wrote about Gilmartin’s allegations. The tribunal was happy to accept that Dunphy didn’t embellish his evidence because of anger at Connolly’s treatment.

Little is made in the report of Gilmartin’s destruction of key documents and tape-recordings, and his reliance on allegations provided by sources that remained anonymous. Gilmartin exited the plan to build a shopping centre at Quarryvale in 1996, but only after his solicitor negotiated a payment of £8.7 million.

Seven years ago, Mr Justice Hardiman accused the tribunal of “cherry-picking” the fruits of its investigations. He warned of the danger that the inquiry “might itself become invested in the evidence of a particular witness at a point where it became insensitive as to the contradictions in his/her evidence”.

Something was undoubtedly rotten in Irish politics in the late 1980s and 1990s. Men such as Ray Burke, Liam Lawlor, Frank Dunlop and Pádraig Flynn besmirched the reputation of the political system. Their activities were known about and, to some extent, written about.

The tribunal shone a light on this corruption and its very existence probably stopped more of it happening. Its success in unmasking Burke and breaking Dunlop produced tangible results, with both ultimately sent to jail.

Notwithstanding the inconclusive outcome of the investigation, its examination of Bertie Ahern’s finances revealed far more than most observers expected. The public impact of its work has been enormous.

How powerful would the report have been if it came out a decade ago?

The passage of time has lent a historical air to its findings, with virtually all the main figures long gone from active politics.

Perhaps our economic woes could have been mitigated if the tribunal’s corrective medicine were applied before the end of the boom.

With no special investigative powers to fall back on, the tribunal was always going to have to rely heavily on witness evidence. Some of this evidence has been questioned by a judge in the highest court of the land. The considered, lengthy and very expensive opinion of the tribunal in the final report is worthy of respect but it is not infallible.