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Ireland's political and cultural magazine
18 February 2015
I
N the Spring of 1996, I met with Jim
Gogarty at his home in north Dublin.
Over a conversation lasting a couple
of hours he told me of the day in June
1989, during a general election cam-
paign, when he was present in the Swords
home of then minister, Ray Burke. He
said he witnessed his employer, Joseph
Murphy Jr, and builder Mick Bailey each
hand over a package which he believed
contained €30,000 in cash in return for
a promised 700-acre land re-zoning. The
allegation ultimately resulted in Burke’s
resignation as foreign minister and TD
and to the establishment of the Planning
and Payments tribunal headed by Justice
Feargus Flood in the Autumn of 1997.
The notes and taped transcript of my
interview that night were provided to
the tribunal, at its request, and used to
substantiate the allegation, long in cir-
culation, that Burke had received illicit
contributions over many years in return
for securing favourable and lucrative
planning and re-zoning decisions at
Dublin County Council. In its 2002
report, the tribunal found that the former
minister had received other substantial
rewards; and he was subsequently jailed
for tax offences.
When providing the transcripts of
our interview, and acting under advice
from lawyers for the Sunday Business
Post where details of Burke’s misbehav-
iour were published during those years,
I requested that contents that were not
relevant to the terms of reference of the
tribunal, and that included unproven and
unsubstantiated allegations against other
individuals, should be redacted before
they were circulated to other interested
parties.
Among those individuals, as widely
reported in recent years, was a different
former minister, from a different party
and a former, now deceased, Supreme
Court judge whom Gogarty claimed
had also received illicit payments from
his employer, Joseph Murphy Sr. Not so
widely reported was a claim by Gogarty
that a third former minister, still active
in politics, was also involved in swing-
ing votes at the council to benefit certain
developers.
Whatever about my request, Flood and
his legal team, in an effort to confine lines
of inquiry to those relevant to the tri-
bunal’s terms of reference and to avoid
revealing the identities of individuals
not immediately involved in its inquiries
decided to redact some information from
witness statements. This was the prac-
tice of the tribunal until 2005 when the
Supreme Court ruled in an action taken
by developer Owen O’Callaghan against
the judicial inquiry, that all statements
made by Tom Gilmartin, which had previ-
ously been redacted, should be provided
in their entirety in order to test the cred-
ibility of his evidence. Gilmartin was, of
course, the source of the explosive allega-
tions of corruption against O’Callaghan
and others, including Bertie Ahern and
other prominent politicians.
As a consequence of its earlier practice
of withholding certain statements made
in the interview with me, and presum-
ably in private with the tribunal, and on
the basis of the Supreme Court ruling in
the O’Callaghan case, Joseph Murphy and
a co-director Frank Reynolds appealed
a finding of obstruction and hindrance
made against them, and in 2010 the
Supreme Court quashed the tribunal
decision to deny them their substantial
costs.
This decision led to a successful appeal
by former assistant city and county man-
ager, George Redmond, who was found
to have been at the epicentre of a dec-
ades-long planning scandal, against the
findings of corruption made against him.
He and others including Burke, JMSE
and the Bailey brothers had had adverse
findings made against them, based on
Gogarty’s evidence. Other findings of
wrongdoing against Redmond, Burke and
others arising from different modules of
the tribunal remain in place. The final
report published in 2012 dealing with
the Gilmartin allegations and the find-
ings against O’Callaghan, Ahern, Padraig
Flynn and a host of others, still stands.
“Another fine mess” is how the Irish
Times editorialised recently when
recounting the sequence of events that
have unfolded. But the newspaper’s con-
cern, and that of its contributor David
Gywnn Morgan, professor of law at UCC,
was not directed against the tribunal
but rather at the manner in which some
judges of the higher courts have unpicked
decisions made by public inquiries. The
professor suggested that “the judiciary
has applied its own standards to very dif-
ferent and particular institutions without
regard to the different context”.
Some of the learned colleagues have
also had ‘skin in the game’ in that they
have a long history of antagonism, even
before they were appointed to the bench,
towards the planning tribunal, in par-
ticular. A number of senior barristers
argued back in 1998 that the tribunal’s
sweeping orders of discovery against
well-heeled banks, businessmen, lobby-
ists and politicians were hardly justified
by claims that a few councillors had pock-
eted small sums in return for planning
favours. Now we know t hat t he corruption
was more endemic and went far higher up
the political and commercial food chain
– and that most of those involved have
walked away with their bank accounts in
rude health. •
Judicial unpicking ignored the context. By Frank Connolly
Gogarty and the redactions
NEWS JAMES GOGARTY
Among those
individuals,
as widely
reported in
recent years,
was a different
former
minister, from
a different
party, a
former, now
deceased,
Supreme
Court judge
and a third,
still-active
politician
“
the Supreme
Court:
“ignored the
context”
