Maeve Sheehan: O'Brien's links to Fine Gael spell more trouble for the Taoiseach
Fallout from Mahon re-ignites the issue of what to do with the Moriarty report, writes Maeve Sheehan
Published 01/04/2012 | 05:00
THE sooner the Garda Commissioner decides what to do with the report of the Moriarty tribunal, the better for Enda Kenny.
Published a year ago, the report found that former Fine Gael minister Michael Lowry "delivered" the state mobile phone licence to the consortium led by the business tycoon Denis O'Brien, who in turn made payments to Lowry.
Enda Kenny embraced the public mood of consternation and dramatically promised that he would not let the Moriarty tribunal's report gather dust. So he duly sent it off to the Director of Public Prosecutions and the Garda Commissioner, who gave it to the Criminal Assets Bureau, which examined it and reported back to the Garda Commissioner, who passed the report over to the Director of Public Prosecutions, where it currently resides.
While the authorities deliberated, Lowry, these days a poll-topping independent TD, continued his local campaigns on health, crime and anti-social behaviour, as O'Brien became ever more successful, got to meet the Queen and was a guest of the Taoiseach at the global economic forum.
It seemed that Moriarty was a dim and distant memory until 10 days ago when the Mahon tribunal's report exploded its corruption findings all over the body politic, drowning Fianna Fail but causing a fair bit of collateral damage to Fine Gael too.
Not least, because Mahon resurrected the ghost of Moriarty. Throw in an ill-judged photograph of Enda Kenny sharing a platform with Denis O'Brien at the New York Stock Exchange in the same week Mahon was published and the Moriarty tribunal was truly back to haunt Fine Gael.
Kenny was accused of failing to act robustly on Moriarty and donations from O'Brien's mobile phone company to Fine Gael were reprised. At first, Kenny's critics were members of the opposition, principally Fianna Failers hoping to deflect their own shame. When Kenny's government colleagues filed out against him, he knew he had a problem.
First Lucinda Creighton, the junior minister for Europe,
said she hoped Denis O'Brien wouldn't be invited to any more economic events "because of the findings of the Moriarty tribunal".
Two days later, Joan Burton, the Labour Minister for Social Protection, under Dail privilege, named O'Brien in the same breath as former Italian prime minister Silvio Berlusconi and highlighted the public and political unease about him continually popping up at public events and called on the Government to "reflect on how it should in future interact with people against whom adverse findings have been made by tribunals".
The day after that, her Labour colleague, Brendan Howlin, Minister for Public Expenditure and Reform, backed her up: "The Government has to make its decisions in relation to any individual against whom adverse findings are made by a tribunal established by this House."
The concerns about Fine Gael's proximity to Denis O'Brien raised other questions last week too: such as why no action has yet been taken against a former government minister whom a High Court judge found received "payments" from a business tycoon to whom he "delivered" a mobile phone licence?
It's been a year since the Garda Commissioner Martin Callinan asked the Criminal Assets Bureau to examine the Moriarty report for potential criminality. The huge tome landed on the desk of Eugene Corcoran, the chief superintendent at the Criminal Assets Bureau last March. His brief was to examine the report for suspected crimes and tax misdemeanours. Ten CAB officers were assigned to comb through the report. They expected to be finished in weeks but instead it took them months to trawl through the myriad financial transactions.
They eventually presented a report outlining the suspected or potential criminality
they had identified and gave it to the Garda Commissioner late last year.
But there were complex legal issues; the DPP, Claire Loftus, was called on late last year for advice and her office is still deliberating on whether there are grounds to launch a full investigation into Lowry's finances.
It is thought that the length of time that has elapsed is among the primary legal issues under consideration. Almost 17 years has passed since the events outlined in the Moriarty tribunal's report. Since then witnesses have died, records may have been destroyed and memories have lapsed.
If an investigation does proceed, gardai will have to gather evidence from scratch. The law prevents them from using the Moriarty tribunal's report as anything other than a road-map. That will mean re-interviewing hundreds of witnesses and sourcing bank records and other documents related to the money trail followed by the tribunal.
Those transactions include £150,000 that went from O'Brien to Fine Gael fundraiser David Austin, who paid £147,000 to Michael Lowry; there was stg£300,000 lodged with Lowry's UK solicitor on his behalf; and a stg£420,000 loan through Woodchester Bank as a "Dennis O'Brien transaction" that was later reversed.
Despite unearthing this money trail, it found that "no conclusions can be arrived at, other than that repeated and clandestine courses of action were adopted by persons intimately associated with Mr O'Brien, to confer payments or other benefits upon Mr Lowry on behalf of Mr O'Brien".
The sole finding of corruption in the entire report related to an attempt by Lowry to effect a rent increase for the then supermarket tycoon, Ben Dunne. The rent increase never happened.
Lowry has challenged the State to investigate him, claiming that the authorities would find no trace of the £900,000 the tribunal found he received -- directly or indirectly -- from O'Brien.
The Criminal Assets Bureau was set up to follow money trails and its extensive powers are more far reaching than tribunals of inquiry. All CAB requires to launch an investigation is a "reasonable suspicion" that assets are the proceeds of criminal conduct. It can seek court orders to search solicitors' offices, accountants' offices, financial institutions, can freeze bank accounts and seize property.
It can apply to the High Court to confiscate wealth from those who are suspected -- not convicted -- of benefiting from "unjust enrichment". Based on the suspicions of a chief superintendent, a judge can make a "corrupt enrichment order" to force that person to make a payment to the State. Unlike the Moriarty tribunal, it also has the powers to question witnesses from outside the jurisdiction.
O'Brien, while harshly criticised in the Moriarty tribunal report, has not been found guilty of anything, as his lawyer pointed out last week. He contests the tribunal's findings.
Yet as the man who the tribunal said was the source of payments to Lowry, it's hard to see how he would escape being drawn into a possible CAB probe of Lowry's affairs.
O'Brien has been widely praised for using his significant influence to promote Irish investment abroad. And there lies Enda Kenny's conundrum with O'Brien.
The same Lucinda Creighton who believes the tycoon should be removed from future government guest lists nailed it last week when she mused: "Denis O'Brien's role in his engagement with Bill Clinton in particular and with the Irish diaspora and potential investors is an important one, and I don't know that at a time like this that we afford to turn our back on it."
It's what the tribunals have been telling us all along: it's all about money.