Anonymous sources posed ‘real difficulties’ for Siteserv inquiry, judge says in final report

The judge behind the Siteserv inquiry has said he faced “real difficulties” investigating claims by anonymous sources that turned out to be untrue, in implicit criticism of Social Democrats TD Catherine Murphy.

Such information “risked undermining the constitutional protections of certain witnesses” to cross-examine their accusers, Mr Justice Brian Cregan said in a final report on his work.

After examining the Siteserv affair for seven years, he also urged the Government to streamline public inquiries by establishing a permanent commission of investigation. Calling for a new approach to public inquiries, he said changes to the law would be required to ensure they can complete their work within a reasonable two-year period.

The Government said the judge’s suggestions “merit consideration given widespread concern about the cost and timeliness” of his and other commissions of investigations. Minister for Justice Helen McEntee will consider the report and revert to the Government after Oireachtas consultations.

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The inquiry into Siteserv by the High Court judge centred on the €45 million sale of the troubled building services company to businessman Denis O’Brien in 2012. The investigation started in 2015 after a Dáil row over the €119 million loss that the State-owned Irish Bank Resolution Corporation (IBRC) incurred in the deal.

Mr Justice Cregan last year found the sale was based on “misleading and incomplete information” provided by Siteserv to IBRC. The deal was so tainted by impropriety that it was not commercially sound, he said.

In his final report, published on Tuesday, the judge said the total cost of the inquiry was some €17.5 million, a sum that included €4.89 million for third-party costs for witnesses. One of his key conclusions about the disputed deal was that Siteserv could have realised another €8.7 million from the sale under certain assumptions.

On anonymous claims, the judge said the Oireachtas should be “very cautious” about establishing any future inquiry relying on information from sources who are not identified to such an inquiry.

He did not name any TD when criticising anonymous sources but claims made in the Dáil by Ms Murphy about Mr O’Brien’s banking relationship with IBRC were central to the political furore that led to the Cregan inquiry.

There was no comment last night from Ms Murphy on the judge’s remarks.

“One of the more difficult issues faced by the IBRC commission arose from the fact that some TDs received documentary evidence from anonymous sources,” the final report said.

“Those TDs forwarded such documents to the commission; however, the identities of the providers of the documents to those TDs were not revealed to the commission. Those TDs, as was their legal right, declined to give evidence to the commission and declined to disclose the identifies of their sources.”

The judge went on to say his inquiry was not in a position to establish the identities of the anonymous sources.

“In many cases, the commission established that the allegations made by these sources were not true or were not true in substance, although some may have been partially factually accurate,” he said.

“The anonymous nature of what were, in large part, accusations against different witnesses before the commission raised real difficulties. It hindered the commission’s ability to establish the veracity (or otherwise) of the information provided by these anonymous sources.”

The judge said it is “now impossible” to carry out a commission of investigation in a timely manner while complying with procedures laid down by the courts and the requirements of the 2004 law under which he carried out his investigation.

“The commission is of the view that this is a highly undesirable state of affairs. It frustrates the rights of the people expressed through the Oireachtas to investigate matters of urgent public importance.”

Mr Justice Cregan called for the creation of a permanent commission of investigation body, saying it should be chaired by a judge or retired judge of the superior courts and provided with legal expertise and IT and procurement services.

He also called for enhanced scrutiny of proposed terms of reference for inquiries, ensuring they are “clear and focused” and confined to matters of fact.