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Planning Tribunal is too kind to itself

Delay in addressing Supreme Court judgments was self-serving and scandalous

When Mr Justice Feargus Flood – the Planning Tribunal’s original sole member – embarked on his mission for the truth, he was wont to require various parties to provide him with full and frank “narrative statements” to answer the many and varied allegations of wrongdoing made by Mr James Gogarty in an affidavit he had sworn and submitted to the Tribunal.

Mr Gogarty was the main agitator for the Tribunal’s establishment in October 1997 but had not sworn his affidavit until 12th October 1998 – a full year later. Upon receipt, Justice Flood circulated it to Mr Gogarty’s various “accuseds” on 20th October 1998 with a demand for responding narrative statements within two weeks and a notification that public hearings into Gogarty’s allegations would commence with Mr Gogarty’s own evidence a week after that.

Without understanding the furore that ensued and its backdrop to the contemporaneous decisions that have since become the subject of Supreme Court scrutiny, it would be impossible to understand what has occurred to cause the abandonment of most of Justice Flood’s findings. Certainly none of the Tribunal’s statements issued since January last year have helped such an understanding.

The Tribunal’s current members should now make a full and frank narrative statement about what really went on to cause the withdrawal of all bar two of Justice Flood’s Second and Third Report corruption findings. Their recently issued, carefully crafted web statement fails miserably to do so and is disingenuous in the extreme.

It advises that the Tribunal has made “alterations” to these reports and that the “so revised” reports are available to download from its website but is short on specifics, long on fudge and very misleading.

Firstly, far from making mere alterations to Justice Flood’s two reports, they have been cannibalised. The Second Report (dealing with Ray Burke) has lost nearly 40% of its body weight and fourteen of its sixteen corruption findings and the Third (dealing with George Redmond) is only a shadow of its former self with all corruption findings gone (though one controversially persists in the final report). But how does the statement deal with this?

Yes, it advises that all adverse findings have been removed against 11 named individuals but asserts that “adverse findings” remain against Ray Burke, Tom Brennan, Joseph McGowan, John Finnegan, Tim O’Keeffe, Roger Copsey and John Bates.

It would have been more forthright to make it clear that only two of Flood’s eight corruption findings against Burke (involving Brennan & McGowan) have survived the cull and that the other adverse findings it lists are merely those of a failure to co-operate with the Tribunal, not findings of corruption at all.

And the back story outlined for the Reports’ “alterations” and delays in effecting them is inaccurate, self-serving and, in some cases, demonstrably untrue.

For instance, taken at face value, the statement suggests that the reason for the finding withdrawals is that Mr Justice Flood made a bona fide mistake in a ruling he delivered in early 1999 concerning the criteria he would apply in deciding which information he would and would not circulate to those accused by Mr Gogarty. It also states that this ruling was only found unconstitutional in 2005 Supreme Court judgments delivered in a challenge mounted by the Cork developer, Owen O’Callaghan, to the ruling’s continued application by the Tribunal’s current members in a later module.

The statement also asserts that none of the parties condemned by Justice Flood’s two reports challenged the decision “either before or in the years immediately following” their publication. Leaving aside the fact that the Tribunal’s collapse has nothing to do with Justice Flood’s public ruling and that nobody knew what he was actually up to, this latter claim is extraordinary in view of proceedings issued by JMSE and George Redmond in 2004 and 2005 respectively.

Concerning the JMSE case, the statement’s recital of its significance – that it decided that Justice Flood was also wrong in assuming the power to find parties guilty of the crime of hindering and obstructing him – is accurate as far as it goes. However, a more frank statement would have acknowledged that it was the facts that emerged during those proceedings (and the later Redmond case) about what Justice Flood had done with evidence behind the scenes, and not the O’Callaghan judgments that has done for his reports.

The JMSE case revealed that, far from making an innocent mistake, Justice Flood had – according to 2010 Supreme Court judgments in that case – under cover of his 1999 ruling (later condemned in O’Callaghan) “concealed without justification” evidence which was “patently relevant” to his enquiries and, “on one tenable view, explosive”.

And as if this is not clear enough, the judgments also repeat the explanation offered to the Supreme Court by counsel representing the Tribunal (including its current members) for this concealment. This gives the lie to the Tribunal’s claim that it was a bona fide error on Justice Flood’s behalf.

Justice Adrian Hardiman’s judgment recites that;

“He (the Tribunal’s counsel) then referred to the Tribunal’s “need to limit collateral credibility issues: they redacted the documents”.

“The need to limit collateral credibility issues” is counsel-speak for an admission that Justice Flood’s purpose was to conceal the fact that Gogarty was, at worst, a serial liar. And this concealment happened at a crucial moment in the Tribunal’s history and remained unknown to any of the other participants who were already up in arms about what they did know of Justice Flood’s plans. It only became known to the JMSE side when, within weeks of its High Court outing and very late in the day, the Tribunal complied with a long overdue order for discovery made against it.

Back in 1998, Justice Flood had circulated the Gogarty affidavit within days of its receipt and announced his decision to move immediately to public sittings – taking Gogarty’s evidence first. This was more than unusual as it was established and best practice for tribunals to follow the recommendations of the UK’s 1966 Royal Commission on Tribunals of Inquiry (the Salmond Report) by commencing its proceedings by delivering an opening statement outlining its terms of reference and what it was investigating, summarising its progress to date and charting how it intended to proceed.

But there was another factor rendering Justice Flood’s decision surprising: His terms of reference mandated him to conduct his initial inquiries in private to determine whether there was sufficient evidence to warrant launching hugely expensive public hearings but his decision to proceed publicly was made within days of his receipt of Gogarty’s affidavit, and before notifying the impugned parties of Gogarty’s allegations let alone giving them an opportunity to respond.

The affidavit had made a series of distinct but connected – by Mr Gogarty – allegations of wrongdoing – not just of planning corruption – against several individuals: There were slush funds, massive tax evasion, threats and intimidation, Garda and government collusion and even an attempt on Mr Gogarty’s own life when a bullet came through his livingroom window as he sat within.

All parties, save Mr Gogarty’s own representatives, not only demanded a deferral of Gogarty’s testimony but also sought access to crucially relevant official files, other probative material and prior statements made by him. It was then that Justice Flood decided, for the reasons stated, to conceal some crucial evidence. But why did it take so long for the Tribunal to act on the implications of the 2005 O’Callaghan judgments and the 2010 JMSE revelations? Having posed this question, its statement is less than frank in addressing it.

It recites a number of irrelevant facts before stating that it successfully contested George Redmond’s proceedings (on delay grounds) in the High Court but that he appealed to the Supreme Court. It also states that during that appeal, the Tribunal had agreed that “certain references in the Third Interim report would be deleted” and that…“since then (and indeed since 2010/2011 in relation to the impugned hindrance and obstruction findings and related costs decisions) the Tribunal has been engaged in a process which has culminated in the removal of parts of the Second and Third Interim Reports”. This is incorrect on many fronts.

Firstly the Tribunal only succeeded in stopping a third of Redmond’s case (his challenge to corruption findings): High Court Justice Gilligan allowed him proceed with his challenge to Flood’s hindrance and obstruction findings and Mahon’s refusal of his costs because the Supreme Court had already found in “his” favour on these issues in its 2010 JMSE decisions.

However, despite this, the Tribunal appealed that part of Justice Gilligan’s judgment and, when forced by an eyebrow-raising Supreme Court to file its late defence in the challenge that Justice Gilligan had permitted to proceed, made the bizarre claim that, although Justice Flood had found Redmond to have hindered him and obstructed him, he did not find him guilty of the crime of hindering and obstructing him. This led to the Tribunal (that is to say, the taxpayer) facing an aggravated damages claim for its unmeritorious defence of Redmond’s case.

And this writer was in court during the Supreme Court appeal and heard no concession being made about “certain references” in the Third Report. On the contrary, the Tribunal’s counsel, Patricia Dillon SC, was intensely questioned by the court about what her clients’ attitudes were to Flood’s findings in light of the revelations in the JMSE case but, much to the expressed incredulity of the bench, had “no instructions” on this crucial question.

And when sent off over lunch to take instructions on the matter, rather than making concessions or addressing the issue, she returned with instructions to withdraw the Tribunal’s appeal, withdraw its opposition to Mr Redmond’s appeal and to agree to pay (or, more correctly, that the taxpayer should pay) Redmond’s High and Supreme Court costs.

It then took until December 2014 before the Tribunal finally settled Redmond’s case which has in turn led to the momentous events of recent weeks.

And it was only after that settlement that the Tribunal’s current members initiated a reported “full audit” of Justice Flood’s enquiries leading to the withdrawal of the vast majority of his findings over three separate modules. What, exactly, they found to cause such a retreat has not yet been revealed but it should be.

EXPLANATORY STATEMENT FROM PLANNING TRIBUNAL, MARCH 2016

The Tribunal has made alterations to its Second and Third Interim Reports (published respectively in 2002 and 2004) by removing certain parts of the Reports, including certain findings. The Reports as so revised are available for viewing and downloading

(1) All adverse findings have been removed in relation to Oliver Conlon, Jack Foley, Oliver Barry, James Stafford, John Mulhern, Joseph Murphy Snr, Joseph Murphy Jnr, Frank Reynolds, Thomas Bailey, Michael Bailey and Caroline Bailey.

(2) Adverse findings remain in relation to Ray Burke, Tom Brennan, Joseph McGowan, John Finnegan, Tim O’Keeffe, Roger Copsey and John Bates.

(3) In relation to George Redmond, adverse findings in the Third Interim Report have been removed, but a finding of corruption made against him in the Fifth and Final Report remains. (see below)

SOME QUOTES FROM JUDGMENT OF ADRIAN HARDIMAN IN THE 2010 JMSE CASE

On Flood’s reasoning

“In the following para. 14-100, the Tribunal expressed itself as follows:

“The Tribunal is satisfied that Mr Murphy Jnr. could have attended a meeting in Dublin on the 8th June 1989 notwithstanding the evidence that he had received telephone calls in London both that morning and that night. A meeting could have taken place at JMSE’s premises on the afternoon of the 8th June provided Mr Murphy Jnr. had flown from London to Dublin and returned on the same day” (emphasis added).

At p. 132, para. 14 -117 the Tribunal concludes “that the alibi evidence does not prove that Mr Joseph Murphy Jnr. could not have attended at least three meetings in Dublin between the 31st May and the 15th June 1989” (emphasis added)…

However, by the time it came to set out its findings at p.139, the Tribunal said that “[t]the parties present at the meeting [where the money was paid] were Mr Burke, Mr Michael Bailey, Mr Joseph Murphy Jnr. and Mr James Gogarty” (emphasis added). At this point, “could have” has been first transposed into “can’t prove the contrary” and then to “were”, an unqualified positive finding of fact. The seamless (to use Mr Cush’s word), silent and unreasoned transition from bare possibility to an unqualified statement of fact seems possible only by  virtue of a reversal of the onus of proof. No explanation whatever is offered of it. This is unsatisfactory in itself. The development in the findings from “could have” to “can’t prove the contrary” to “did” is an unreasonable one. It is, in legal terms, irrational”.

On Flood’s concealment of evidence

On the hearing of this appeal, counsel for the Tribunal (who had not been involved as one of the counsel appearing for the Tribunal at its own sittings) said that he did not stand over the redaction and non-production of the material in question. He said that, “Bearing in mind the decision of this Court in O’Callaghan, I am conceding that the document should have been given to the Appellants”. By way of explanation he said that Judge Mahon (presumably an error for Mr Justice Flood) thought that the documents in question were not relevant but in any event he said that the documents were irrelevant to the judicial review proceedings, even though it was in these proceedings that the documents were eventually disclosed. He then referred to the Tribunal’s “need to limit collateral credibility issues: they redacted the documents”. It is not entirely clear to me how the last matters fit in with the concession recorded above. And the allegation about the second politician, at least, is not a “collateral” issue on any view. It was concealed without justification”.

On the Tribunal’s concealment of its concealment

“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”.

On the Tribunal’s arguments about confidentiality and its approach to its obligations of disclosure: “The named person, who was a journalist, gave tapes and transcripts of his conversation to Mr Gogarty and notes of them to the Tribunal but required a certain confidentiality which, in the Tribunal Counsel’s view, prevented their disclosure to the parties Mr Gogarty was accusing. It is noteworthy that this defence or explanation of non-disclosure was not offered on the hearing of the appeal and appears wholly unstateable, particularly if reference is made to the judgment of Geoghegan J. in O’Callaghan v Mahon, where a plea of confidentiality was advanced as a basis for non-disclosure. A witness cannot dictate how a court or tribunal will treat his evidence, or any items he produces”.

Anthony Harris was latterly solicitor to the late George Redmond

By Anthony Harris