Something rotten in the state of Ireland

It has been over two years since the Moriarty Tribunal issued its final report – available here. In the Dail, An Taoiseach Enda Kenny said on 23rd March 2011, the day after the report’s publication

“I have read the key points of the report. It is a serious report and makes particular recommendations. In consideration of those key points I have asked the Minister for Communications, Energy and Natural Resources to refer the report to the Director of Public Prosecutions, DPP, and to the Garda Commissioner for their consideration”

The greatest impression of the report on the public consciousness might be the relationship between former communications minister Michael Lowry and telecoms businessman Denis O’Brien during the award of the State’s second mobile phone licence in 1995. But there were other elements to the report and one involved entrepreneur Ben Dunne and a property he owned on Marlborough Street in Dublin city centre which was rented to Telecom Eireann, a state company ultimately under the aegis of Michael Lowry as communications minister.

The Tribunal heard from estate agent, Mark Fitzgerald, managing director of Sherry Fitzgerald and son of Garret Fitzgerald, former Fine Gael taoiseach, of alleged attempts by then-minister Lowry in 1995 to influence the estate agent which was acting as arbitrator in setting a new rent for the building. It was alleged that on at least two occasions, then-Minister Lowry had sought to influence the boss of the estate agency to double the rent from IRL 5 to IRL 10 per square foot. Ben Dunne owned the building and had donated  large sums to the Fine Gael party, the political party of which Michael Lowry was then a member, and Ben Dunne had also directly benefitted Michael Lowry through the payment for building works at Michael Lowry’s home in Tipperary.

The Moriarty Tribunal report published in March 2011 says in paragraph 13.50 in relation to the rent review on the property on Marlborough Street

“Indeed, what was contemplated and attempted on the part of Mr Dunne and Mr Lowry was profoundly corrupt to a degree that was nothing short of breathtaking”

It should be said that the Moriarty Tribunal was, like the other tribunals, not a formal court process in the traditional sense. Although a senior judge chaired the Tribunal, it did not have the same standards of evidence and process as a court, it was inquisitorial rather than overseeing plaintiff and defendant arguing as adversaries. However, it would appear from at least one subsequent court case, where Michael Lowry was unsuccessfully suing journalist Sam Smyth for libel, that the Tribunal is not legally worthless. Judge Kearns said in his High Court judgment

“But of course tribunal hearings and findings may be reported upon by the media and tribunal findings may certainly provide a roadmap or trail for other bodies or persons with an interest in the subject matter of inquiry, be it the Oireachtas, the Office of the Director of Public Prosecutions or litigants who engage in private litigation. Shorn of this characteristic, the function of tribunals would be rendered totally nugatory and pointless. The critical consideration in the cases cited above is that tribunal findings do not of themselves constitute material of probative value in such proceedings. They may however point to sources of evidence which may then be accessed in that separate context.”

It should also be said that specific dramatis personae, notably Michael Lowry and Denis O’Brien, reject in strong terms, the findings of the Tribunal.

But let’s ignore the O’Brien/Lowry angle of the Tribunal’s findings here. What about the Dunne/Lowry/Fitzgerald findings? Yesterday, Ben Dunne himself, called into RTE Radio’s Liveline show where he offered his views on bankruptcy and bankruptcy tourism. Ben strongly suggests that borrowers should be proactive, and in that context the following was broadcast:

“Can I just make one point about being proactive [Yes Ben] When the Tribunal made a finding against me that I was a corrupt man [Yeah I remember that one] I immediately said “I would be, I hope that my file is sent to the DPP” and to the best of my knowledge the file was sent to the DPP and that’s what I mean by being proactive. [And have you heard from the DPP] Never heard a word from the DPP [And do you expect to hear from the DPP] The point I am making is [Do you expect to hear from the DPP] I don’t know.  I mean I am one of those people they can walk up to the door right now and say they want to see me. That’s life. Nothing that I have done is a hanging offence and in fact I have done nothing wrong in my opinion. But I did say, this is how proactive I am. I did say to the Tribunal and to the chairman at the time and I think I said it on your show  “Send my file to the DPP” [Yea, I remember that] And they did send it. Many years later I am still walking around and I haven’t been handcuffed or arrested.[How do you know that it hasn’t been sent] I am not a hard man to find [but how do you know that they sent it] I haven’t a clue. Listen, I have no say in what tribunals do” Ben Dunne speaking on RTE Radio Liveline (aka Joe Duffy Show, Talk to Joe) on 12th April, 2013 (about 1:02:00 into the podcast, available here)

So, more than two years after the publication of the Moriarty Tribunal report, and after the report was given by An Taoiseach to the DPP and An Garda Siochana, Ben Dunne says he has not heard from the DPP, or presumably from the Gardai.

This is unfair on both Irish society and Ben Dunne (and indeed Michael Lowry and to an extent, Mark Fitzgerald). Remember, Ben Dunne hasn’t been convicted of anything and he says he doesn’t believe he has done anything wrong but he still has a report of some considerable standing, making serious findings against him. How difficult can it be for the Gardai to investigate the matter, take statements from Messrs Lowry, Dunne and Fitzgerald and to decide if an offence has been committed?

Justice minister Alan Shatter is regularly asked for updates on the Garda investigation of matters arising from the Moriarty Tribunal and keeps saying that the Gardai are still investigating and liaising with the DPP, and the latest one month ago is that the Gardai are liaising with the DPP before taking a decision whether or not to launch a full investigation! On 12th March 2013, Minister Shatter responded to a parliamentary question in which he said “the Report of the Moriarty Tribunal has been examined by the Garda authorities and the advice of the Director of Public Prosecutions has now been sought by them, with a view to determining whether or not a full Garda investigation should now be commenced.”

Something is putrid here. Either the Gardai are underresourced or incompetent, or for whatever reason, not doing their job, or the DPP is underresourced or incompetent, or for whatever reason, not doing its job. We have a separation of powers of sorts between politicians and the police service and the DPP and there may be a reluctance to hold either to account by politicians, particularly in a case which has a political angle and where there may be accusations of political interference. But if ministers cannot hold them to account, who can? Will Minister Shatter call in an independent investigation service, perhaps from overseas? It would be uncomfortable to think that the Gardai or DPP can be forced to dance to the tune of the media, but at what point can we conclude their performances are just undermining trust in public institutions; have we already passed that point?