With no end in sight, the Flood tribunal passed the £5 million mark in costs at the beginning of December. But even so, it's not all about money

`But will anyone ever go to jail for it?" asks an understandably angry public as the sins and scams of the elite are exposed …

`But will anyone ever go to jail for it?" asks an understandably angry public as the sins and scams of the elite are exposed in the various tribunals and inquiries that are currently underway.

"Maybe, sometime," is the best answer available in the case of the Flood tribunal, where the "it" in question is planning corruption in Dublin. "But don't hold your breath," adds the wise punter.

No tribunal has the power to lock up malefactors, or even fine or otherwise punish people. The proceedings can't even be used in a criminal trial, though of course the facts uncovered may prompt a subsequent criminal investigation.

So in the case of Flood, what is the likelihood that anyone facing allegations will be successfully prosecuted? Based on present knowledge, and in the case of the allegations made by Mr James Gogarty about planning bribes to politicians, the answer has to be: virtually nil.

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Mr Gogarty says Ray Burke got a large sum of money in June 1989 and he is correct in this. He should know - after all, wasn't Mr Gogarty the man who handed over money?

In fact, Mr Burke was the happy recipient of three large payments at that time, all of them "political contributions". The former Fianna Fail politician breezed into the tribunal during the year, repeated the mantra of "political contributions" for a week, and departed smiling and largely unscathed.

Mr Gogarty says the money was a bribe to secure planning permission on the north Dublin lands owned by the Murphy group. The tribunal has spent a year trying to garner support for this contention, but with little success. Meanwhile, Mr Gogarty's opponents have been busy putting flesh on their allegations that the erstwhile Murphy group chairman was ripping off his own employers by demanding a six-figure fee for selling the lands.

It's not that what Mr Gogarty alleges is necessarily wrong; it's just that it's very, very difficult to prove. Not even the dumbest crook leaves behind incriminating documents. A receipt slip, say, disclosing the following: "received, with thanks, £XXXX for corrupt purpose".

Proving motive - i.e., that someone did something for a specific purpose - is notoriously difficult. We have learned, for example, from the Moriarty tribunal, that Charles Haughey spent £15,000 on Charvet shirts, and that fact is particularly shocking. But even Moriarty's successful dredging exercise has told us nothing about why Haughey spent money as he did or why so many people were so consistently generous towards him.

In addition, cumbersome procedures, legal challenges from well-bankrolled quarters and the passage of time have removed the element of surprise that might have elicited a more spontaneous response from witnesses. It doesn't take a genius to see that the old legal rule that lawyers should not coach witnesses is more honoured in the breach than the observance.

Thus, Mr Justice Flood, when he eventually comes to write his report, is likely to state his conclusions in terms of "best probabilities" rather than certifiable facts. His findings will be eminently challengeable. Unless new facts come to light, the tribunal is unlikely to throw up the level of proof required to sustain a criminal prosecution.

Maybe this doesn't matter. Maybe a wide-ranging and public tribunal will serve to answer many of the allegations about planning corruption. Lessons will be learned and mistakes avoided for the future.

BUT this view posits a tribunal as an exercise in therapy rather than a vehicle for establishing the truth. Indeed, the tribunal has been hugely entertaining, though not always as much fun as it sounds on Vincent Browne's evening radio show. It has undoubtedly been an exercise in people's democracy and that neglected and sidelined group, the elderly, has played a central part in proceedings, largely thanks to Mr Gogarty (82), Joseph Murphy snr (also 82) and George Redmond (75).

But at such a cost! With no end in sight, the tribunal passed the £5 million mark in costs at the beginning of December. 1999 was a windfall year for the tribunal lawyers; each of the main senior counsel earns about £250,000 a year. Felix McEnroy, for example, earned £403,277.50 in 19 months, before he left the tribunal to return to the Law Library last August.

Has no-one in Government who pays these bills heard of economies of scale? Or performance pay? Daily rates of £1,400 - for both sitting and non-sitting days - might be justified in a short court case, but surely fees should be related to the length of a tribunal and the success of its endeavours? Based on the experience of the beef tribunal, the final cost when the legal expenses of other parties are awarded is likely to be about £20 million.

Even so, it's not about money. Twenty million would be a fair price to pay if the tribunal went about its business efficiently and if it produced a successful outcome. The yield from fines or other financial penalties imposed on wrong-doers should rightly be taken into account when the final bills are totted.

Mr Justice Flood's best prospect for the new year would be to wrap up the last strands of the Gogarty investigations and then issue an interim report. Such a report would include recommendations for running future tribunals more efficaciously. It would also suggest a speedier handling of the remaining parts of the tribunal, which will examine the allegations made by Mr Tom Gilmartin and those surrounding Mr Redmond.

Otherwise, we'll see each other same time, next year.

Paul Cullen can be contacted at pcullen@irish-times.ie