Friday 27 April 2018

Documents may be used to back criminal prosecutions

Dearbhail McDonald Legal Editor

Q. The Moriarty Tribunal report has been sent to the Garda and the DPP, but will anyone be prosecuted?

A. That depends on several things: the privilege against self-incrimination, the co-operation of witnesses and on how much documentary evidence can be amassed by gardai and how much evidence can be relied on.

Q. What is the privilege against self-incrimination?

A. The privilege against self-incrimination is a constitutionally guaranteed right that prevents you making a statement, answering questions or producing documents that might later expose you to criminal proceedings.

Q. How does the privilege work in public inquiries?

A. Under the laws setting up tribunals of inquiries, any statement or admission made by a witness in a tribunal is not admissible in evidence against the witness in subsequent criminal proceedings.

But statements made by other witnesses can be used against you in a criminal trial, providing they can be proved.

Q. The Moriarty Tribunal followed a massive paper trail and obtained lots of damning documents against certain parties. Can they be used as evidence in a criminal trial?

A. Yes, only the witness evidence tendered to a tribunal cannot be used in a criminal trial, but gardai can use a tribunal report as a springboard or roadmap to seek the production, in court, of other types of evidence. Crucially, the privilege against self-incrimination as it operates in tribunals only applies to witness statements and witnesses do not enjoy privilege over documents given to a tribunal.

Q. Can statements or admissions made to a tribunal be used in civil proceedings?

A. Yes, Section 5 of the 1979 Tribunals of Inquiry (Evidence) (Amendment) Act 1979 only applies to criminal proceedings.

Q. Has anyone ever been sent to jail as a result of a finding of a tribunal?

A. Sort of. Former Government lobbyist Frank Dunlop served 18 months in prison and was fined €30,000 for making corrupt payments to politicians over the rezoning of land at Carrickmines in south Dublin during the 1990s.

Dunlop was the first individual to be given a custodial sentence for corruption under the Ethics in Public Office Act 1995 following a Road to Damascus-style conversion under cross-examination at the Mahon (formerly Flood) Tribunal.

Central to Dunlop's prosecution, however, was his willingness to give voluntary statements admitting his guilt to the Criminal Assets Bureau. George Redmond and Ray Burke served jail sentences for tax evasion and the late Fianna Fail TD Liam Lawlor was jailed three times for non co-operation with the Flood Tribunal.

Q. Can the DPP get documents in possession of a tribunal?

A. Yes, the authorities can seek production orders or otherwise discover documents required to build a prosecution case.

Q. How easy will it be to bring a criminal prosecution home?

A. Not easy. Gardai will, in effect, have to start a fresh investigation. The burden of proof in a criminal trial, beyond a reasonable doubt, is much higher than the threshold of balance of probabilities in a civil case or opinion of the sole member that applies at a tribunal.

Irish Independent

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