Facts and hard evidence rather than speculation and hearsay should shape the tribunal's findings, writes SARAH CAREY
AS VICTIMS go, Denis O’Brien and Michael Lowry fall distinctly into the unworthy category. Billionaire tax exiles and tax-evading politicians don’t merit much public sympathy. Lowry is guilty of hiding his company’s earnings from Dunnes Stores from the Revenue Commissioners.
O’Brien is guilty of having too much money and too many sunny jurisdictions in which to stash it. Hardly any wonder then if no one cared for a long time if they were getting a raw deal down at Dublin Castle. They’re guilty of something, so to hell with them.
Why would Fianna Fáil Ministers care since it was a Fine Gael problem? Why would the Attorney General care since the destruction of O’Brien’s reputation is no business of the State?
Was it only when the provisional findings of the Moriarty tribunal were issued to “affected parties” that officers of the State, from the AG to Government members, suddenly realised that they needed very much to care?
By drawing the civil servants who assessed the bids into an alleged conspiracy to stitch up the licence in favour of O’Brien, the goalposts changed.
If the tribunal finds that the civil servants bent the system in order to give O’Brien the licence, then the millions being blown on briefing fees, lunches and €1,200 a day projectionists are only the start of what this will cost us.
When Persona, the second-rated bidders and former clients of tribunal counsel Jerry Healy get going, the State could be liable for hundreds of millions in damages.
The blow to the country’s reputation couldn’t come at a worse time either as we plead for favourable terms from international lenders. This isn’t about two unsympathetic characters anymore. The stakes just got a lot higher.
Nevertheless, most public comment has insisted that the overwhelming need is for the truth. We must have the facts, regardless of how grave the consequences.
The rather worrying thing, in my opinion, is that the tribunal has insisted repeatedly – in commenting in 2006 on former taoiseach Charles Haughey, and elsewhere – that since there are no legal consequences to its findings, it is under no obligation to confine itself to legal norms, such as standards of proof, rules of evidence or even an obligation to make findings of fact.
So while everyone has been saying that despite the terrible consequences for individuals and the State, the tribunal must press on, the tribunal argues that since there are no consequences, its findings “represent no more than what should be a reasoned and informed expression of opinion”.
Now, in my opinion, the award of the licence was sound. As a former employee of O’Brien’s and a witness at the Moriarty tribunal, I will be accused of being biased.
As an insider, I believe it’s a reasoned and informed opinion. Still, that opinion has as much subjectivity and therefore as little consequence as my opinion on the quality of the latest Harry Potter film.
The opinion of Justice Moriarty is quite a different thing. As Justice Hardiman said when the Supreme Court dismissed the right of Oireachtas committees to express opinions even if they were “legally sterile”: “I believe it is quite fanciful to consider that a reasonable man or woman in the street would not regard a report so phrased as a solemn finding of demonstrated wrongdoing.”
Moriarty’s opinion will be seen as just such a solemn finding.
Still, if he is convinced that wrong was done and if he has evidence to prove it, then of course he should not flinch.
Given the consequences though, how sure would we like him to be?
Should Moriarty be sure beyond any reasonable doubt, the criminal standard of proof such as Hamilton applied in the beef tribunal? Should he be sure on the balance of probabilities, the civil standard of proof used in most other tribunals such as the Blood Transfusion Inquiry or the Morris tribunal? Or should he be sure because he feels it in his waters, even if he can’t find the smoking gun?
What has he said about the matter? In his 2006 report on the Haughey module, Moriarty said he thought that the criminal standard was “neither warranted nor realistic”. In the same report, he complained that “rules, either for the admission of evidence or the burden of proof, evolved for the purpose of the administration of justice in criminal or civil proceedings, would inhibit and confine the functioning of the tribunal”.
So where does that leave us? No actual proof, just his opinion? Let’s not panic for a minute. Liam Carroll has appealed Judge Peter Kelly’s refusal to allow his companies into examinership because he expressed an opinion on the property market.
But in the normal course of events, judges are expected to give their opinion often when presented with conflicting evidence. But that’s evidence approved in normal judicial procedures, the kind that has to be tested and approved under fair rules. The kind that Moriarty has said “inhibits” his inquiry. So, what evidence will he rely upon when coming to his “reasoned and informed opinion”?
The case in favour of a safe licence comes via 70 sworn witnesses, not a single one of whom provided direct evidence that Lowry interfered with the licence process.
The evidence “against” is based on everything from hearsay to speculation and amounts to little more than “Dúirt bean liom go ndúirt bean leí”.
Don’t you think we should have something more to go on before the lives of dozens of people are destroyed?
I do, but then, that’s just my opinion.