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    Investigation: Killusion

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    The Smithwick Tribunal was set up in 2005, by the Irish Government on the advice of Michael McDowell, then Minister for Justice, and sat in public in Blackhall Place from 2011 until 2013, examining the possibility of Garda collusion in the deaths of Chief Superintendent Harry Breen and Superintendent Bob Buchanan, of the Royal Ulster Constabulary (RUC) who were murdered North of the Border in March 1989, after a brief meeting in Dundalk Garda Station. The purpose of the RUC officers’ visit was to discuss a move against the IRA’s Tom ‘Slab’ Murphy, which had been ordered by then Northern Ireland Secretary of State, Tom King. The Smithwick Tribunal ended up in 2011 with a strange, abstract, finding of ‘collusion’ in the murders of the two RUC men. Though it found “no smoking gun” in Dundalk, the Tribunal weakly decided there was indeed less specific evidence of “collusion by gardaí” in the murders. Dutifully, Enda Kenny described these findings as “shocking” and a public and media jaded in affairs Northern determined rather vaguely to remember that Smithwick was about a search for evidence of collusion which it had somehow found. What is extraordinary is that Smithwick provided no name for the ‘colluder’, though it clearly for a long time thought it was Owen Corrigan – even though it wasn’t. One of the reasons for this is that there may in fact have been no Garda colluder, a big embarrassment for those who felt a tribunal needed to be instigated and, worse, for those who conducted the inquiry without ever drawing attention to the inaccuracy of the premise that led to it but who saved face by continuingly, through the eight years of its existence, pretending there was one, albeit with less and less specificity. Smithwick was swayed into its collusion abstraction by the PSNI (which succeeded the RUC) giving untestable, very-late evidence to the Tribunal privately naming a fourth garda who was more plausible than Owen Corrigan as the colluder. Fulton: the man whose evidence led to a falsely perceived need for the Tribunal Smithwick always focused on Corrigan as the colluder because the Cory Inquiry, which prompted the Smithwick Tribunal, unduly relied on the 2003 evidence of a dissembling double agent known as ‘Kevin Fulton’ – now challenged by a source who spoke to Village – that Corrigan gave deadly information to the IRA about the RUC men. In its report the Smithwick Tribunal stated [at 15.1.2]: “This statement was a key factor in Judge Cory’s decision to recommend the establishment of this Tribunal, and Kevin Fulton was therefore an important witness before this Tribunal”. In any event Fulton actually seems to have later changed his story (when giving evidence to Smithwick in 2011) to say that Corrigan gave information to the IRA only about a 37-year-old Cooley farmer, informant Tom Oliver, who An Phoblacht then accused of passing on information to Garda Special Branch. Oliver was kidnapped, allegedly interrogated by Scappaticci and subsequently murdered. The changed story was that Corrigan gave information about Oliver, not about the doomed RUC men; but even the changed story was expressly and ignominiously disavowed by Smithwick, under pressure in a recent High Court case, to the extent it implied that Corrigan’s information led to Oliver’s death. In other words everything related to Fulton collapsed, despite Smithwick’s paean to him. Kevin Fulton had begun to engage with the Smithwick Tribunal in 2006. In its opening statement in 2011, the Tribunal made it clear that “Mr Fulton has elaborated on and expanded the statement he provided to Judge Cory”. The expanded statement was given to Corrigan’s lawyers in November 2011. For the first time they saw the central allegation made by Fulton which sensationally implicated Freddie Scappaticci, ‘Stakeknife’. It did not concern the murders of the two RUC Officers but instead implicated Sergeant Owen Corrigan in giving information which would lead to the death of an alleged IRA informer, Tom Oliver. The first reason not to believe Fulton is that a book about him makes no mention of any of this. Admittedly Fulton now distances himself from the graphic book called ‘Unsung Hero’ about his life but this is chiefly understandable as an expedient in the face of the, at least nine, PSNI Investigations arising from it, and the many civil actions in the pipeline. He has already had to pay compensation to the family of Eoin Morley, a Newry man shot dead in 1990, after failing even to enter an appearance in the Belfast High Court to proceedings by his mother. Nevertheless it is undeniably notable that at no stage in the book does Fulton mention a garda in Dundalk station passing information to the IRA, though it was scarcely something he’d be expected to omit. Nor is there any other evidence – of any sort – that he passed information about Corrigan or other Dundalk gardaí, to his handlers. Bizarrely Smithwick warmly endorsed Fulton, a man who had made a lifetime “career” of deception, as a highly credible witness, in his final report, even in effect if he completely and absolutely disavowed him in the subsequent legal action. Surprisingly, Smithwick was to say of Fulton: “He sat only metres from me and I observed him throughout. He was a very impressive and credible witness and I have formed the view that his evidence was truthful”. However, clearly there is a shadow over the statement from Fulton which inspired Cory’s call for what became the Smithwick Tribunal. If this is so it rewrites the history of both inquiries. Fulton’s’ similar role in other high-profile investigations will emerge in the coming months. But what exactly was the core allegations that convinced Cory and then hung Smithwick out to dry? This is the Fulton Statement as published originally in the Cory Report in 2003: “In 1979 I enlisted in the British Army. Within months of my posting, I was recruited by a British Intelligence Agency to act as an agent. In this capacity, I

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    Law is boring

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    I-am-a-lawyer. I’ve said it. You may feel that positions me on the level of an amoeba or vermin but I believe I am ethical, professionally competent, creative and that I and many of my colleagues often do good things fighting on behalf of the voiceless and the victimised. But I must admit there are problems within the profession domestically and worldwide. This article intends to illustrate some of the best and worst legal practice. Show me a lawyer who is genuinely intellectually interested for example in mergers and acquisitions law, save perhaps as the by-product of a professional skill well exercised, and I will call the person to book as a boor or a charlatan: not interested in mergers and acquisitions, but in the money to be got from fabricating an interest in mergers and acquisitions. The interest is fake. In fact an interest in mergers and acquisitions or taxation law connotes a deep-seated psychological malaise. There are far more interesting things in life and indeed law. Anyone who has ever worked in a corporate sweat shop, as I have – a place called Hughes, Hubbard and Reed in No 1 Wall Street “Hughes, Cupboard and Greed” – will confirm that to acquire the lucre you so assiduously seek you are boxed in a gilded corporate cage like a puffed battery hen spending as much time calculating the billable hours as actually working. Your friends think it is glamorous but you know it is ignominious. Much more important than the quality of work produced is the amount of time spent. And quality dedicated to securities and derivatives or mergers and acquisitions Oh super. Have you ever seen this stuff? You will serve as the twentieth-person backup in a deal represented by a composite document that is laboriously copy-checked and footnoted drawn from a crucial well-tested all-important template to produce something that might end up in a short hearing which you will probably not be involved in. Anyone interested in advocacy should steer far away from corporate law. There will be no showtime or theatrics. You will have no stake. This is anally-retentive churning, soul-destroying work. Practitioners of such ephemera subject themselves to endless, pointless work and no holidays. A good friend of mine, a corporate lawyer in New York, visited me for the first time in ten years on his first holiday in that time – a five-day break in Dublin – and he had to be at the computer for a few hours every day! Further, many lawyers I met on Wall Street in particular – but elsewhere too – seemed drawn unmitigated from the novel ‘American Psycho’, dangerously psycho- or socio-pathic – overorganised and compartmentalised, rigid and fetishistic. For the sake of completeness you may care to note that sex for these forensic Gordon Gekkos was a bookable appointment, boring and consumerised, between meetings. Dirty love in the afternoon. Don’t think of the day-to-day reality of the new you: shrivelled and desexed. Commodified. Ossified. Bored. Sold-out. Ascending the corporate law ladder: a misspent youth. For those who care for more gentlemanly or ladylike times there has been a foul but gradual, insidious penetration of American work practices into Ireland, blind to our native frugality, scrupulousness and indeed noble tradition of law dating back to bardic times. The IFSC is full of the elites of South County Dublin, lucubrating over the tedious clippings of global corporate avarice. Solicitors in the ‘big five’ firms are as specialist and hungry as any attorney on the seventieth story in Manhattan. They have even affected the jargon of brash US firms: corporate responsibility, doing a meeting and a range of moronic baseball analogies: touch base, rain check, curveball. In Ireland lawyers once loved – once had to love – language. Symptomatically, this country, the land of the Book of Kells and the monkish scripts, of Beckett and Joyce, characteristically generates poorly-written mass-produced textbooks like wallpaper: heavy on the facts of the law but low on criticism or analysis. In the end, anyone can write an Irish textbook on The Law of Dogs or of Parks, with a brief introduction by judge, probably over a bottle of wine, who skim-read the effort, expressing gratitude, nay respect, for the important contribution to our law. Better rather that someone should unleash The Irish Rumpole or true crime as Stig Larsen did in Sweden or as Scott Thorow and Grisham do in the states. Let us focus on law in reality not the paper rules of mass-produced textbooks. In fairness there is some civilised life at the Irish Bar. Adrian Hardiman was a famous Joycean. Frank Callinan, a senior counsel and Brian Cregan, a High Court judge, have tried their hand at Parnell with some éclat. John O’Donnell SC writes poetry and serves on the Arts Council. Not enough. Where is the Nell McCafferty who documented the dysfunctionalities of the lower courts a generation ago? We need a Dickens to chronicle the contemporary Jarnydyce v Jarnydyce that is our banking and debt collection mess. Corporate Law My East-End client was perfectly polite until after the acquittal. Then asked to meet for a ‘sing-song’ in a seedy alehouse: “I didn’t want to say it to you but you are Irish, and if you had messed up I would not have taken it kindly. Know what I mean son?” The threat was very clear. Needless to say I did not go for the pints. In any event it needs to be be said that police officers have issued me threats even more sinister – insinuating that I was some sort of juvenile delinquent gone wrong for anti-State work or Garda criticism; bugging my phones – an occupational hazard of a human rights lawyer, expressing their closeness to lower court officials and high ranking civil servants, perhaps issuing a death threat, as if we lived in a third-world police state. Nonetheless, give me an outing in criminal law for the Kray clan any time, over corporate law. East-end gangsters

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    Ethics cases to answer for FF in SIPO, and FG

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    Long-running tensions between Fine Gael members in County Kildare are about to create difficulties for Kildare County Council and Fine Gael following the suspension of righteous Councillor Fiona McLoughlin Healy from Fine Gael for making well-founded allegations about the leader of Fianna Fáil on the Council, allegations met with a deaf ear by of cials and other councillors. This energetic councillor’s refusal to submit or be silenced raises questions about cronyism, and of a traditional old boys’ club mentality. It suggests ‘new politics’ is coming only very slowly to rural Ireland. Background Up to 2011 Fine Gael had passed two electoral terms without a TD in Kildare South. However, following 16 months of difficult campaigning and his eclipse of two strong rivals, 32-year-old golden-boy local farmer Martin Heydon brought the party a landslide victory in that years General Election. He collected a remarkable 33% of rst preference votes. Deputy Heydon built a likeable persona for himself within Fine Gael, regarded by members as a politician who, in the best Fine Gael tradition, would not rock the boat. He was also believed to have found favour with the grandees in the party. Although Enda Kenny has chastised party members for the poor optics that result from favours and jobs for family, Heydon hired his sister, Rosemary, as a parliamentary assistant and co-opted distant cousin Ivan Keatley, the best man at his wedding, to take his former council seat, all without rebuke. However, there was one aspect of Martin Heydon’s career that the Taoiseach took issue with: his association with the Dáil’s ‘five-a-side’ gang, a group of about ten right-wing male TDs who met to vent their various grievances in political life with bright-eyed South Dublin toff Eoghan Murphy TD as ringleader. Once, however, Kenny’s understandable dislike of secret groups and meetings was made clear to Heydon, he parted ways with his footie pals and the group dissolved in 2014. As another General Election loomed on the horizon, Heydon was making plans. With his impressive result from 2011 in play, the party planned on running two candidates in the Kildare South constituency. The forward-looking TD already had a partner in mind, a local solicitor who had campaigned on Heydon’s behalf in the run up to the 2011 vote. The TD was ready, and appeared well positioned, to repay the loyalty. However, the Taoiseach had other plans. Having brought in gender quotas while in government, Fine Gael was in danger of damaging itself by outing them. Reeling from a collapse in support but seeing female candidates as providing an edge over their backwoods rivals Fianna Fáil, Kenny and party strategists drew up a secret list of more than a dozen women – and a few men – to fill roles across the country. Party organisers, alongside Terry Prone’s PR firm The Communications Clinic, ran a six-week course to train eager new candidates in preparation for the election, all monitored by Fine Gael general secretary Tom Curran. Speaking at the time, Mr Curran said he didn’t expect the move would cause trouble within the party. Kenny’s secret weapon for Kildare South was a relatively new politician, Fiona McLoughlin Healy, a trained nurse who had volunteered in a Romanian orphanage before returning to NUIG where she topped her class every year in both Law and Politics, and then to Ulster University where she again obtained a distinction. A councillor in the Newbridge area since 2014, who runs a property-sales website, she was seen as bouncy if somewhat politically naive. She announced at the earliest opportunity that she believed in transparent operations and the party’s commitment to gender quotas. Her appetite for ‘new politics’, a more socially liberal Fine Gael party and willingness to break ranks, irritated old-timers and made her the target of cynical ridicule in local political circles, McLoughlin Healy addressed some of the criticism, established a formidable presence on social media and seemed to be moving towards election. Yet she faced a difficult campaign. A few older male Fine Gael members in the area took issue with the very notion of gender quotas and often were quite vocal in their opposition to a female candidate, yearning for a return to past, admittedly unrewarded, selection processes. McLoughlin Healy did little to assuage their fears, pushing herself forward on national television about sexism and her belief in gender quotas. A source working in the Council told Village that it was not just the grassroots members who felt uncomfortable over the quota issue, but that the councillor’s own colleagues expressed annoyance at the special training Fine Gael had provided her. With Martin Heydon’s running mate plans scuppered by his party leader, there was animosity towards his new female colleague. He notably showed no interest in engaging over a vote-management and boundary strategy. Heydon was also proving implausibly popular with many local Fianna Fáil supporters, which only gave traction to ongoing rumours that people from the Heydon camp were mischievously stirring confusion for voters between Ms McLoughlin Healy and the similarly named, though quite different, Fianna Fáil candidate Fiona O’Loughlin who is currently a TD and leader of Fianna Fáil on Kildare County Council. This coupled with claims that Mr Heydon’s supporters had brazenly told voters to pass on their second preference to the Fianna Fáil candidate, a claim he denied to Fine Gael insiders and called a “a dreadful slur”, stoked tensions. As polling day drew near, the pair appeared on a special election edition of ‘The People’s Debate’ with a lively Vincent Browne, with rather poor results. Ms McLoughlin Healy’s energy and eagerness were striking but she was attacked from the crowd by members of her own party over gender quotas. Luckily for her, Mr Heydon’s performance drew most of the attention, as he struggled with questions and appeared unfortunately quick-tempered when challenged. It had become apparent that this election had become more difficult than previously predicted. As McLoughlin Healy gained support outside the party base on her pro-Repeal stance on abortion, adoption of

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    French Connections

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    An intriguiging High Court action which featured allegations that a leading Kildare businessman used his political “connections” to secure favourable treatment from NAMA was settled in the High Court in late October. The judicial review application taken against NAMA arose from a dispute over valuable development lands at Straffan jointly owned by retired developer, Martin Flattery, and prominent Kildare auctioneer, Arthur French, before their bank loans were taken over by the agency. Affidavits sworn by Flattery contained detailed and sensational claims of political interference based on comments allegedly made to him by French. Flattery’s lawyers argued that NAMA had acted in bad faith by refusing to complete a deal for the sale of the lands to Flattery in an ‘off market’ deal earlier this year and that there was improper interference in the negotiation process. The case was settled and the application dismissed when the parties appeared before Judge Michael White in late October. This meant that the various, and sensational, claims by Flattery against NAMA and French were not tested in court and remain hanging in the air. NAMA did not reply to Flattery’s explosive affidavit but instead has bundled the €25m loans into a larger portfolio and intends to place them for sale. Flattery, from Knockaulin, Leixlip, County Kildare had – before agreeing the recent, confidential, settlement – sought to regain control of the 35 acres of lands which were originally funded by Irish Nationwide Building Society, and to quash NAMA’s attempts to sell them. In the affidavits, he asserted that French claimed, after their business partnership collapsed, that he had “connections in high places” and a “close relationship with many high-ranking politicians in Fine Gael” which he allegedly used to secure favourable treatment from NAMA. Of course Village has no reason to believe the truth of any alleged such claims. The valuable assets, which include the Straffan land and a four-bedroom property in the exclusive K Club, were transferred to NAMA in 2011 and Flattery claimed that he has since submitted no less than ten business plans to the Agency in his effort to buy and develop them. His son, Fergal, unsuccessfully made a €3.5m offer in November 2014 through his house building firm, Mulberry Properties. Flattery claims that he was subsequently informed by French that he had used his “connections” to ensure that any proposals made by the developer for the lands would be rejected. In December 2015, NAMA called in the loans and threatened to appoint a receiver and, days later, rejected yet another proposal by Flattery to develop the site. After further legal proceedings Flattery settled the case in early 2016 on the basis that he would be allowed to make a competitive bid for the lands. Through his solicitor, Graham Kenny, he complained to NAMA that while he was being put under severe pressure, his former partner French had been permitted to keep his “luxurious K club residence and his lucrative auctioneering business, yet was not paying anything off his debt”. He was informed that French was still a debtor of the agency but received no explanation of the nature of its arrangement with the auctioneer. Notwithstanding his ongoing engagement with senior NAMA officials, Flattery alleged that at a meeting in the Ryevale Tavern in Leixlip last year, French told him that he would not be given an opportunity to develop the Straffan site. Flattery and Mulberry then bid €6.02m for the Straffan site but, again, this was rejected as an undervaluation of the landbank. A higher offer matching a valuation by DTZ Sherry Fitzgerald of €6.9 for the lands was also rejected. In a letter in March this year, the agency said that it did not wish to breach its policy of not doing off-market sales. This, despite the fact that NAMA had engaged in discussions with Flattery and his son for an ‘off market’ sale. NAMA then disclosed that it had an unsolicited bid, from a different buyer which was in excess of Flattery’s offer, despite the fact that the site had not been advertised and had no ‘for sale’ sign on it. Again, Flattery suspected that people with more powerful “political connections” were attempting to obtain the lands from NAMA. Flattery initiated the latest judicial review proceedings on the basis that he had been the victim of unfair procedures by the agency, which provided no detailed or evidential reply to his dramatic claims When the parties convened on Thursday 27th October, lawyers for Flattery and NAMA hammered out a settlement which, although confidential, apparently allows the agency to proceed with its sale of the lands by a receiver as part of a larger portfolio. Arthur French owes €50m to IBRC following a series of loans from Michael Fingleton’s Irish Nationwide Building Society and property and land purchases in Dublin, Kildare, Galway and Two Mile Borris in Tipperary. As of 2012 ten of his properties were in NAMA. The Sunday World reported that he had “cashed in around €10m of successful property developments in the last three years but has failed to pay any of what he owes to the State”. Arthur French was not a party to the action and therefore was not required to answer the assorted claims in Flattery’s colourful affidavit. Contacted by Village, French described Flattery’s claims as “absolute nonsense”. He said he was not represented in the High Court and did not know what happened at the latest court hearing. French denied Flattery’s claim that they met in the Ryevale Tavern in Leixlip last year. “I wasn’t in the Ryevale Tavern for years so I couldn’t have said anything like that to him there. I never said any such thing about high- level connections. I cannot comment any more than that”. The auctioneer said that he is still dealing with NAMA in relation to his property debts. French has enjoyed close relations with the rich and powerful given his decades long association to the K Club and its wealthy owner, Michael Smurfit. A former captain

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