Leader: Village is promoting an initiative to assess the viability of, and if the assessment is positive, pursuing prosecutions of tribunal villains and dishonest bankers
Like you, Village is sick of the Director of Public Prosecutions (DPP) not prosecuting tribunal villains and dishonest bankers.
What if you could prosecute them yourself?
In fact there is indeed a provision for a common informer, i.e. a member of the public, to go directly to the court, to take a prosecution.
The common informer acting as a prosecutor must present evidence which is admissible, legally obtained and not hearsay. Tribunal proceedings or reports are not admissible in any prosecutions.
A summary offence is a minor offence, triable in the District Court with the judge acting as judge and jury and a maximum penalty of two years in jail or a 15000 fine.
A summary offence may be prosecuted by a common informer provided there is no statutory provision to the contrary. They may of course also be prosecuted by the Garda, aided by the DPP.
The DPP has no power to intervene in summary proceedings to force the withdrawal of a prosecution brought by a common informer.
An indictable offence is a more serious offence, triable in the Circuit or Central Criminal Court with a jury and no limit on penalty.
An indictable offence may only be prosecuted by the DPP.
A common informer can pursue indictable proceedings in the early stages up to the order for return for trial but the DPP alone can pursue it from then to a verdict.
The DPP will normally proceed with a prosecution on indictment, to trial – once it has been initiated by a common informer. But she may decide not to proceed with it and is not required to give reasons for not prosecuting. Nevertheless such a decision cannot be taken lightly, according to former Chief Justice O Dálaigh in State (Ennis) v Farrell (1966). Challenging such a decision of the DPP not to prosecute would require judicial review in the High Court by someone with standing i.e. some relevant interest. Such an action might presumably be taken by a frustrated common informer acting in the event that the DPP’s decision was reached mala fide, influenced by an improper motive or improper policy or that the Director had abdicated her functions – grounds referred to by Denham J in H V DPP (1994). It should be noted too that some offences relevant to our purposes require the consent of the DPP from the earliest stages.
To avoid the possibility that the common informer pursues the villain for too limited a penalty, the best approach may be to initiate a prosecution on indictment but, if the DPP does not pursue the crime after the return to trial to either a) judicially review her or b) pursue the matter as a new summary offence.
Village has commissioned a report to assess the viability of criminal prosecution for offences of three categories of persons against whom findings of corruption or other impropriety have been made in Tribunals of Inquiry including the McCracken Tribunal and Moriarty Tribunal: both dealing with the subject of Payments to Politicians; and the Flood Tribunal and Mahon Tribunal: dealing with Certain Planning Matters and Payments. The report will also address the prosecutability of individuals at the centre of impropriety in the banking collapse.
Village will have a look at the opportunities for prosecuting at least Bertie Ahern, the Bailey Brothers, David Drumm, Ben Dunne, Michael Fingleton, Michael Lowry, Denis O’Brien, Seán Quinn, Albert Reynolds and the corrupt key protagonists at Monarch Properties. We are also looking at the possibility of asset confiscation by the Criminal Assets Bureau of former Monarch Properties’ lands and perhaps of lands and assets formerly associated with the late Charles Haughey, and others.
The idea is that if the DPP will not pursue these prosecutions, Village may promote common informers, with no interest bar the public interest, to pursue them.
A sum of money has been made available to promote this initiative but we would also welcome help from informed members of the public and lawyers with relevant expertise.
Ray Burke, Frank Dunlop, Liam Cosgrave Jr and Liam Lawlor served prison sentences arising, directly or indirectly, from the Planning and Payments Tribunals. No-one else did. Liam Cosgrave Jr, Don Lydon, and Colm McGrath are currently facing trial on charges of planning corruption related to the rezoning of lands at Carrickmines, in South County Dublin, in 1992 and 1997.
No-one has been prosecuted as a result of the McCracken and Moriarty Tribunals. Regarding the banking collapse that bankrupted the country, Seán Quinn and his son served sentences not for crimes but for contempt of court.
Former Anglo Irish Bank (Anglo) chairman, Seán Fitzpatrick has been charged with several counts of failing to disclose the true amount of loans made by the bank to him or to parties connected with him, among other things. Former Anglo finance director Willie McAteer and former managing director for Ireland Patrick Whelan have both been charged with 16 offences under the Companies Act.
Apart from that all has been morbid silence.
Democracy depends on the prosecutability of white-collar crime.
