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Planning tribunal legal farce dissipates public funds and fails to address full truth

Twenty years ago Colm MacEochaidh and I offered a reward of £10,000 for information leading to the conviction of persons on indictment for rezoning corruption. I had spent a year campaigning against a controversial rezoning of attractive fields in Cherrywood, Co Dublin, pushed through in murky circumstances by Monarch Properties which was subsequently found to have acted corruptly. I wanted to get to the bottom of it. We needed to do something dramatic as a) tribunals had been discredited following the weak Beef Tribunal report and b) there was a perception – following an Irish Times investigation by Frank McDonald and Mark Brennock (George Redmond’s son-in-law), billed as ‘Fields of Gold” which had managed to name one, but only one, dead (and therefore defenceless), councillor as corrupt – that planning corruption was a ball of smoke.

Our anonymous stratagem was fronted by Newry Solicitor, Kevin Neary. He eventually received 55 separate sources of information. We threatenedthat, unless immunity was granted from prosecution to whistle-blowers and ultimately a tribunal – which we said should be cost-effective and streamlined like the British Scott Inquiry – instigated, we would start naming the people about whom we were receiving serious and verifiable information. We also introduced our informants to journalists who, once they verified the information, printed it.

Our best informant was James Gogarty. We visited him in his house in Sutton. He was pleasant but a little cranky, determined to nail his employer for, as he saw it, shafting him on his pension. Gogarty had been persuaded to go back to work for Joseph Murphy Structural Engineering – a building company, after his initial retirement. He was particularly venomous about Joe Murphy Junior who he saw as an upstart. He was bitter that the then Minister for Justice, Nora Owen, was not taking his claims seriously enough and he ventilated about Seamus Henchy, a Supreme Court judge.What he said to us about Owen, Murphy Jr and Henchy had to be taken witha pinch of salt. But what impressed us was the information he had about a bribe he had paid one-time Environment Minister, Ray Burke. For us it was morally certain that the information about Burke was true, since it was backed by documentation and had to be extracted from him, while he really only wanted to moan on about his pension. He was disillusioned with the failure of the Irish Times to take his story seriously and it took some persuasion to get him to talk to any other newspaper but in the end he spoke to the Sunday Times on the eccentric basis it was not Irish. In the end this did not work out and he only really became confident when we linked him to Frank Connolly, then of the Sunday Business Post.

A lot of the information we received was rubbish – one man said he knew the burial place of racehorse Shergar but several of the allegations resulted in criminal prosecutions or appearances before the planning tribunal. The pressure built up through Neary’s appearances on the media, Connolly’s articles in the Business Post, some pieces by Matt Cooper in the Sunday Tribune and an article by John Ryan in Magill, ultimately made a tribunal unavoidable, and it was duly established in 1997. In the end it established corruption against Ray Burke and Padraig Flynn and resulted in the resignation of Taoiseach, Bertie Ahern, who made up a cock and bull story about a digout in order to avoid questions about unexplained sums of around €200,000 that passed through his accounts. We never paid the reward as no-one claimed it. The £10,000 went in legal fees.

Ultimately, the tribunal found systemic and endemic planning corruption in County Dublin. So far so good. But it had relied too much on two whistle-blowers, Gogarty and Dunlop one of whom was sporadically unreliable and the other of whom was serially mendacious. The judges and lawyers who cost so much and took so long simply didn’t have the nous to investigate the allegations presented to them, forensically.

Particularly when Judge Mahon took over from Judge Flood the tribunal found both too much and too little. It found mostly against those whose reputations were already destroyed. It did not make some of the findings that it could have made not just against Bertie Ahern but also against many other senior serving politicians. It also perhaps made too many findings based predominantly on the evidence of the serially dishonest Dunlop. It did not find a street-wise way of analysing evidence where there was not a whistle-blower and much of its proceedings were ill-focused. In the Cherrywood rezoning, for example, a number of councillors had changed their minds and voted for rezoning, after they’d been paid money by the corrupt developer or corrupt Frank Dunlop. They weren’t even asked to explain their changes of mind though, even before we knew that there was any corruption, campaigners had (in 1993) hammered the mysteriously-changed minds as suspicious.

Where the tribunal had failed to ask the right questions in several cases the report simply omits the issue, including the failed line of questioning, completely. Someone should research how much money and time was wasted pursuing issues that were never resolved.

The judges and their legal teams fell short and were laid bare by an admittedly over-zealous Supreme Court. That is not surprising when you consider the same minds allowed the tribunals to go over budget and over time. The mentality is captured by the attitude of the judges when John Gormley, as Environment Minister, arranged for Mahon to be aided by two other judges. When he asked the judges how much time the extra judicial repower would save, on the assumption they’d divide up the material to be investigated in three, he was told that if anything it would take longer than with one judge only, as they were going to sit together in every case. In the end court decisions have resulted in the unravelling of all adverse decisions, including against Burke, based on the evidence of James Gogarty.

In the case of James Gogarty we all knew the essence of his case was true but that there were problems at the edges. The tribunal chose to redact the implausible elements of his evidence but the Supreme Court said it should have been left in, to be used against the credibility of Gogarty, generally.

But as we saw so clearly in 1995 the truth of the core of what Gogartysaid was unimpeachable. Where evidence was given about anyone who had done Gogarty no harm, he was scrupulous. If we saw it then, the tribunal and its overpaid lawyers should have been able to distinguish truth from fiction in Gogarty’s evidence, without concealing or redacting anything. It was the tribunal’s job to get at the truth and create distance between it and peripheral lies.

The planning tribunal, which continues even now to clock up fees (€1.1m last year), made millionaires of 17 lawyers, who were charging up to €2250daily, and its own 35-person legal team is expected to finish up costing €63m. For example Patricia Dillon earned €5.6m, Pat Hanratty earned €5m, John Gallagher earned €3.43m Eunice O’Raw earned €3,3m and Máiréad Coughlan earned €2.1m. Those of them who proffered advice that led to concealment of evidence and Gogarty’s findings being overturned should know that their involvement was a scandal in itself. If they have any professional pride they should return the bulk of their fees to this tired so-called Republic.

Michael Smith