Wednesday 20 September 2017

Michael Lowry seeking to preventing his trial on alleged tax offences

Michael Lowry TD. Picture: Damien Eagers
Michael Lowry TD. Picture: Damien Eagers

FORMER Fine Gael Minister Michael Lowry is seeking permission to bring a High Court challenge aimed at preventing his trial on alleged tax offences.

This prosecution is "extraordinary" because it concerns a payment Mr Lowry had both declared and paid, his counsel Patrick Treacy SC said. 

Mr Lowry (60), Glenreigh, Holycross, Co Tipperary, argues he has no outstanding tax liability and is being treated unfairly and selectively in circumstances where it has not been sought to prosecute others, including some 145 holders of Ansbacher accounts said to have a liability.

The Independent TD also contends he is entitled to prohibition orders on grounds of alleged prejudicial publicity and alleged wrongful release of taxpayer information into the public domain.

The trial should at least be deferred pending his appeal to a Revenue Appeals Commissioner, due for hearing in March, and the outcome of an investigation of his complaint over how details of a search of his home was disclosed to the media when, it is argued, that was potentially an offence under tax legislation, it is argued.

The decision to transfer Mr Lowry's trial to Dublin Circuit Criminal Court rather than permit it be heard in his native Tipperary breaches his rights and amounts to his being punished for to his success as a politician in Tipperary, Patrick Treacy SC, for Mr Lowry, also submitted.

If Mr Lowry was a "hopeless" politican who could not get elected, he would get a trial in his own constituency but, because he is successful, he does not, counsel said.

The DPP had not objected to another Independent Tipperary TD, Mattie McGrath, being tried in Tipperary (on various public order offences of which he was acquitted), counsel said.

The ex parte application (one side only represented) was moved by Mr Treacy before Mr Justice Seamus Noonan today who directed it should be heard on notice to the intended respondents, including the DPP.  Having being told Mr Lowry's trial is listed for mention before Dublin Circuit Criminal Court on Friday, the judge returned the matter to Wednesday.

Earlier, Mr Treacy said the prosecution of his client related to a payment Mr Lowry had declared in a tax return and had paid. Mr Lowry has been advised by two tax consultants he has no liability in that regard but his prosecution related solely to that payment, counsel said.

Among the grounds for judicial review is alleged wrongful manipulation of the criminal justice process and the breach of Mr Lowry's right to a fair trial. Mr Treacy said this arose from factors including that the prosecution was not based on a revenue investigation and the circumstances surrounding publication in the media of recordings known as the "Lowry tapes". Those recordings were not being relied on for the prosecution of Mr Lowry but remain in the public domain, counsel said.

Other grounds include the alleged wrongful obtaining of a warrant to search Mr Lowry's home in circumstances when, it is alleged, certain information, including the context of the application and the publicity, had not been put before the District Court when the warrant was sought.

The publication of details of the search of Mr Lowry's home was a further ground and there should be no trial pending a decision on Mr Lowry's complaint about this, counsel argued.

Other grounds concern fairness in the selection of a person for prosecution and Mr Lowry argues there was prosecutorial oppression and inconsistency in his selection.

On the day before the decision was made to transfer Mr Lowry's trial to Dublin, the then head of the Revenue, Josephine Fehily, told the Dail Public Accounts Committee there were 289 holders of Ansbacher accounts of whom 145 had a liability but there was not a single prosecution of any of those, Mr Treacy said.

Mr Lowry is facing four charges that he allegedly filed incorrect tax returns in 2003 and 2007. His trial was transferred from Co Tipperary to Dublin on the application of the DPP based on the amount of people who have voted for Mr Lowry in elections in Tipperary.

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