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Gogarty and the redactions.

By Frank Connolly.

In 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 campaign, 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 circulation, 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 misbehaviour 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 swinging 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 tribunal’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 practice 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 previously been redacted, should be provided in their entirety in order to test the credibility of his evidence. Gilmartin was, of course, the source of the explosive allegations 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 presumably 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 manager, George Redmond, who was found to have been at the epicentre of a decades-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 findings 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 concern, 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 different 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 particular. A number of senior barristers argued back in 1998 that the tribunal’s sweeping orders of discovery against well-heeled banks, businessmen, lobbyists and politicians were hardly justified by claims that a few councillors had pocketed small sums in return for planning favours. Now we know that the 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. •