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Friday 24 November 2017

Tribunal 'akin to the Guildford Four case'

Supreme Court judge refers to infamous 'miscarriage of justice' case in damning indictment of Mahon procedure

Jody Corcoran

Jody Corcoran

In what amounts to the most damning indictment ever of a tribunal of inquiry established in this State, a judge of the Supreme Court has compared the Mahon Tribunal to the police officers who investigated the notorious miscarriage of justice case referred to as the 'Guildford Four'.

During the course of a lengthy ruling published last week, Mr Justice Hardiman said he believed the planning tribunal may have become so invested in its two main witnesses -- James Gogarty and Tom Gilmartin -- as to "become blind or insensitive to things which raised doubt as to their credibility".

He added: "It is a common phenomenon: in the well-known miscarriage of justice case referred to as that of the 'Guilford Four', the investigating police officers were actually in possession of evidence providing an alibi for one of the four. But they had become so convinced of their guilt that they decided the alibi could not be reliable and concealed it. The Guildford Four spent over two decades in jail."

The Guildford Four were wrongfully convicted in the UK in 1975 of bombings carried out by the Provisional IRA. The convictions were quashed on appeal and they were released from jail more than 20 years later.

In a unanimous judgement last week, the Supreme Court overturned a decision of the Mahon Tribunal to refuse multi-million euro costs to two directors of a company arising out of their dealings with the planning tribunal over 163 days.

The decision to find in favour of the directors of Joseph Murphy Structural Engineers (JSME) is likely to add hugely to the overall cost associated with tribunals of inquiry if, as expected, other witnesses now appeal the tribunal's decision to refuse costs on the grounds that they were found by the tribunal to have "obstructed and hindered" its inquiries.

Although it remains difficult to accurately assess the final bill, an opinion offered some years ago by former minister for justice, Michael McDowell, that legal and other costs associated with the tribunals will come in at over €1bn, does not now seem to be an over-estimation, and may actually be a conservative guess.

The Mahon Tribunal and the Moriarty Tribunal were established 13 years ago.

Yesterday the property developer, Michael Bailey, who had also had his application for costs refused by the Mahon Tribunal on the same grounds as the JMSE directors, told the Sunday Independent that he would "most certainly" be appealing that decision.

Mr Bailey also referred to the broader aspects of Mr Justice Hardiman's ruling, stating: "Now the truth is unfolding with natural justice and the tribunal is being shown up for what it is.

"As far as I am concerned my good name was blackened at that tribunal. I am not satisfied just to get my costs. I want my good name restored."

In his 87-page ruling, Mr Justice Hardiman focused at considerable length on the Mahon Tribunal's decision to withhold evidence or material which, he said, had the potential to be useful to people being accused -- by both Mr Gogarty and Mr Gilmartin.

In this regard, he specifically referred to the tribunal's decision to withhold tape recorded and transcribed material of interviews with Mr Gogarty provided to it by a journalist.

The journalist required confidentiality which, in the tribunal counsel's view, prevented their disclosure to the people Mr Gogarty was accusing.

The journalist concerned is believed to be Frank Connolly, who is now head of communications with Siptu. Mr Justice Hardiman said: "A witness cannot dictate how a court or tribunal will treat his evidence, or any items he produces. The interests of justice are paramount."

In his judgement, Mr Justice Hardiman also cited, several times, another case successfully taken against the Mahon Tribunal in the High Court by the property developer Owen O'Callaghan.

A complaint was made that though the tribunal had a good deal of material highly relevant to the credibility of a witness making extremely damaging allegations against Mr O'Callaghan, this had not been disclosed to him or to solicitors or counsel acting for him.

In that case, the nub of the complaint made when the material eventually came to Mr O'Callaghan's knowledge, was that his accuser had apparently given different accounts of important and relevant events at different times.

The "accuser" referred to by Mr Justice Hardiman, in the O'Callaghan v Mahon case, is the property developer, Tom Gilmartin. Mr Gilmartin's principal accusation was that Mr O'Callaghan had made payments to the former Taoiseach, Bertie Ahern.

Both Mr O'Callaghan and Mr Ahern have strenuously denied the claim.

Mr Justice Hardiman also said that both the length and the cost of tribunals were due in part to the enormous powers which have been conferred on them.

If the powers of the tribunals were enormous, so too are the consequences of their deliberations. "We have seen people forced to leave public life, put to enormous expense and even imprisoned as a result of their interactions with the tribunal," he said.

Certain people had in the past been heard to complain, and to take their complaint to the courts, that the enormous prerogatives of a tribunal of inquiry was capable of destroying them, financially and in terms of reputation, much more obviously than even a criminal court could do, but that tribunal procedures afforded them few or none of the protections which would be available to them in the court forum.

Mr Justice Hardiman also said that there was sometimes a tendency to be a little suspicious of people who take legal proceedings against tribunals of inquiry on the basis that this itself is an act of obstruction.

"I do not agree with this. It is salutary to remember that the concealed materials would never have come to light in this case had the appellants not taken these proceedings.

"It is chilling to reflect that a poorer person, treated in the same fashion by the tribunal, could not have afforded to seek this vindication," Mr Justice Hardiman said.

Sunday Independent

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