tribunal Archives - Village Magazine

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Non Disclosure

by Gemma O'Doherty 13 June, 2018 0 Comments

A fortnight ago, I gave evidence at the Disclosures Tribunal. I spent almost four hours in the witness box in Dublin Castle over the course of two days. Most of what I said was the subject of a blackout by the establishment media, as I suspected it would be. For some time, I have been an outspoken critic of RTÉ and the Denis O’Brien media because of their close relationships with government and the Gardai which are so harmful to democracy and the public good. In 2012, before Sergeant Maurice McCabe came to public prominence, I got a call one day at my office in the Irish Independent from his father. He asked if I would be willing to look at allegations his son was making about corruption in the force. At the time, I was the newspaper’s Chief Features Writer and had been working on a number of cases of garda corruption, mostly unsolved murders. Mr McCabe explained this was why he had contacted me. My investigation into the 1985 death of Fr Niall Molloy had just led to the ‘re-opening’ of the case and my stories were generating interest among citizens who were having their own difficulties with the Gardai. Most of them were bereaved families who believed their loved ones’ deaths had been covered up by the force. My questions to the Garda press office and the Department of Justice about these cases were routinely ignored and I had become a thorn in the side of Commissioner Martin Callinan and his headquarters in the Phoenix Park. I was increasingly alarmed at the depths Garda management seemed willing to go to cover up serious crimes to protect powerful individuals and deny citizens their right to justice and the truth. So when I heard that a serving member of the force had finally decided to speak out, I was intrigued and relieved, and agreed to meet Sergeant McCabe shortly afterwards. Over the course of several weeks, I got to know him and his colleague John Wilson and found their testimonies solid and compelling. They were courageous, honest and driven by nothing but a desire to expose wrongdoing in the force and try to clean it up. All of their efforts to date had failed. I began my own investigation into abuses of the penalty points system, focusing on a number of high-profile individuals who had had speeding fines quashed. One of them was Martin Callinan. By then, it had emerged that certain judges, state solicitors and crime reporters had had penalty points cleared. But now there was proof that the person with overall responsibility for implementing our road safety laws had also evaded them for his own personal gain. At the time, Independent News and Media (INM) was undergoing a period of enormous transition as Denis O’Brien became the largest shareholder. Stephen Rae, former editor of the Garda Review, took over the reins at the Irish Independent. Almost overnight, a wave of fear seemed to sweep through the newsroom. The new regime was planning big changes and there was a strong sense that those of us involved in adversarial investigative journalism might be about to have our wings clipped. It was in this period, I came into possession of a Garda PULSE document identifying a Martin Callinan as the recipient of speeding points that had been quashed. My source believed this to be the Garda Commissioner but knowing my lawyers at INM would not accept this as sufficient proof, I went to the address on the printout to make sure the information was correct. I had a cordial conversation with Mrs Callinan which lasted no more than a few seconds. I told her who I was and asked her if the Garda Commissioner lived at the house. She said he did but that he was away. I jumped back into my waiting cab, looking forward to getting my story published. Little did I know it would lead to the end of my 17-year career at INM. Shortly afterwards, I had a call from Stephen Rae’s then-deputy at the paper, Ian Mallon. He was very hostile and said the Commissioner was furious and had made a complaint of harassment against me. In the days that followed, there was little appetite to publish my story about Callinan and I was subjected to a barrage of criticism and intimidation. I also learned that the then Managing Editor at the paper had been ordered down to Garda HQ over my story. One afternoon shortly afterwards, I was bluntly informed that my job was gone but that every effort would be made to make my departure as financially attractive as possible. When I said I would not be bought off, I was told I could stay on at the paper as long as I withdrew from the work I was doing on Garda corruption. I refused and was forced to take three legal actions against the company which resulted in a High Court apology from the company and compensation. When the Disclosures Tribunal was established in 2017 to investigate an alleged smear campaign by Garda management against whistleblower Sergeant McCabe, I wrote to the chairman Justice Peter Charleton and offered myself as a witness. I believed my testimony would be of interest to it and the public, as it would help to reveal the incestuous links between INM and Garda HQ, and the lengths they were willing to go to to harm those backing up Maurice McCabe’s claims. I have never been in any doubt that my support for his work led to the end of my career at the company. And as I told the Tribunal in early June, it is also my belief that the smear campaign against McCabe intensified after Callinan was exposed for having his points terminated. Shortly after that story was published in April 2013, the repugnant rumours that McCabe was a paedophile started to surface. The ‘Miss D’ allegations emerged and a file was created by TUSLA –

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Judge Horner brazens it out

by Michael Smith 17 May, 2018 0 Comments

The Fourth Defendant in the recent rape trial of rugby players in Belfast was Rory Harrison of Manse Road Belfast. He was acquitted of perverting the course of justice by lying to police when he gave a witness statement about his dealings with the complainant woman and deliberately omitting information. He was also acquitted of withholding information from the police. After dropping the woman home and walking her up her driveway, the court heard Mr Harrison texted the woman: “keep the chin up you wonderful woman” and she said she had absolutely no complaint against him. The day after the incident Harrison wrote to Blane McIlroy: “Mate the scenes last night were hilarious. Walked upstairs and there were more flutes than July 12”. Rory who has lived in Dublin and played as prop for UCD and Terenure College Club, is the son of Terence Harrison, a solicitor and partner in Harrison & Hardstaff, 7 Donegal square West Belfast. A former partner is Ian Hardstaff, current Master of the High Court in Belfast. Terence Harrison is the present sole director of TMKK limited, a property company registered in Belfast and incorporated on 13 February 2001. TMKK limited came to prominence last year when a lay litigant was defending an action by Bank of Ireland which was seeking repossession of some property in Northern Ireland. The action had taken nearly four years and was finally heard by Judge Horner. At the very last moment in March 2017 the litigant in question received information, quite accidentally, that the Judge was a shareholder and former Director of TMKK limited; that his wife Karin Horner at that time was a director; and that the company was grossly indebted to the Bank of Ireland, having borrowed substantial sums to fund the purchase of property in Belfast. Checking the records in companies house it was discovered that not only was the company indebted to the Bank but that in 2016 its assets had been devalued from £2,0650,40.00 to £950,000.00, having remained unchanged in value since mortgages were taken out in 2007 when Judge Horner was a QC – barrister – and Director of the company. Property values generally in Northern Ireland had collapsed in that same period but, uniquely, not those owned by TMKK limited. In the notes to the 2016 accounts it was stated that the company was considered a going concern only because of the support of Bank of Ireland: it is questionable whether or not the company was trading while insolvent and whether the value of its assets was properly reported between 2007 and 2016. If its directors knew that the value of the assets was being overstated further issues might arise. The lay litigant brought these matters to the attention of Judge Horner forcing him to recuse himself from the trial while, bizarrely, claiming that he was doing so not because he had been caught out in a manifest conflict of interest that he had not disclosed but because the defendant would not accept any judgment he made. On 14 March the lay litigant made an official complaint to the lord chief Justice’s office but has not yet received a substantive reply, as the office seems wrongfooted. The Lord Chief Justice’s office still seems nowhere close to convening the Tribunal envisaged in the Code of Practice on Judicial complaints. It has produced increasingly forlorn excuses as to why this has not happened. On 27 March 2017 Justice Horner recused himself from the lay litigant’s case giving a statement saying that the reason he recused himself was because the litigant in person would not accept his judgment. This is judicial nonsense. No judge ever should doubt the acceptance of his judgment by a party. The Lord Chief Justice’s office told Village: “Mr Justice Horner stated in open court that he was recusing himself in the case involving the Bank of Ireland and the lay litigant. He said he was satisfied that there was no question of actual bias or that he had any conflict of interest in the case, but that it was apparent to him that ‘the party would never feel able to accept [his] verdict’”. Judge Horner was forced to recuse himself from another long-running trial involving Bank of Ireland at the same time. In that case it was the Bank that asked him to recuse himself and not the other party: he admitted to counsel involved that he was “seriously under water” with the Bank. It appears that he may have given a personal guarantee or guarantees to the Bank to cover at least part of the company’s borrowing in the normal way and that with the company now a loss-making venture those guarantees would fail to be paid. It is the belief of the litigants and of the NI Bar, where this subject is still hot news, that the Bank was well aware of the conflict of interest as were the solicitors then instructed. The failure by the judge to raise the conflict of interest is seen as a very serious matter and the later application by the Bank itself that he recuse himself from a case in which things were not going well for the Bank is seen as scandalous. A question remains as to whether the Bank did not raise the issue of his conflict of interest in cases that were going well for it: if that were the case then it would be shockingly serious for the administration of justice. Further questions remain as to how many other judicial officers including those holding the office of master or similar in NI are or ever have been in the same position as Judge Horner and the extent of the potential hold that the Bank of Ireland, and other banks, may have over others. Bank of Ireland still holds a charge over the assets of TMKK limited of which Terence Harrison is now the sole director. There can be little doubt that officials of the Bank will have been

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From Naughten to Neachtain: nothin’ worth notin’

by Frank Connolly 13 May, 2018 0 Comments

It is not a question of whether, but how many, more people will become embroiled in the developing row between Independent News and Media and the Office of the Director of Public Enforcement (ODCE). The battle should more accurately be described as one between the biggest shareholder in INM, Denis O’Brien, his appointed chairman to the company and confidant, Leslie Buckley, and Ian Drennan the director of the ODCE who is seeking to appoint High Court inspectors to examine aspects of the media corporations’ governance. In the latest twist to the saga the Minister for Communications, Climate Action and the Environment, Denis Naughten was almost forced to fall on his sword after it emerged that he gave commercially sensitive information to lobbyist, Eoghan O Neachtain, indicating a probable referral of the attempted media purchase of Celtic Media Group by INM to the Broadcasting Authority of Ireland (BAI). Heneghan PR for whom O’Neachtain works, was acting for INM when the lobbyist made the call to Naughten in November 2016, and company boss, Nigel Heneghan, promptly informed his client Leslie Buckley about the news that a referral to the BAI was likely. Buckley immediately passed it on to O’Brien, who controls 29.9% of INM, but apparently did not extend the same courtesy to other board members at the time. When asked about a possible referral by him of the Celtic Media purchase proposal to the BAI by Independent TD Catherine Murphy and Brian Stanley of Sinn Féin three weeks after the phone call with the lobbyist, Naughten had refused to confirm his likely course of action to the Dáil. In the normal course of events, in a normal democracy, a minister passing on such market-sensitive information to a company, or in this case to its largest shareholder, would precipitate a thorough investigation and probably a ministerial head on a plate. Not so in this case. Incredibly, the independent minister insisted that he was only expressing a ‘personal opinion’ to O’Neachtain, whom he said he knows socially from Connacht rugby circles. He confirmed that he had taken no notes of the call. He also said that he met Buckley at an event organised by INM in May 2017 just a month before INM cancelled the acquisition of Celtic Media and just before the minister was to determine whether the deal should proceed. He told the Dáil that he was “trying to recall the detail of that but I do not recall him (Buckley) raising with me at that stage” the issues pertaining to the Celtic Media purchase. In his affidavit to the High Court, heavily leaked, Drennan has suggested that the minister’s action may have breached corporate governance rules insofar as commercially sensitive information was provided to just one shareholder of INM in advance of the likely referral of the Celtic Media purchase to the BAI. By fully supporting the minister, Leo Varadkar may well find himself the focus of criticism further down the road by the corporate watchdog for pre-empting an investigation by the High Court inspectors he is seeking to have appointed to investigate a string of alleged serious, including criminal, behaviour in INM. Varadkar has until now managed to avoid any entanglement in the uncomfortable and controversial relationship between O’Brien and Fine Gael, going back to the mid-1990s when the businessman won the hugely lucrative second mobile phone licence with the assistance of then communications minister, Michael Lowry. The party managed to clear its debt within a few years and although its main fundraiser, Lowry, was forced out in the wake of the Moriarty tribunal investigation, the links between O’Brien and senior party figures, including former leader Enda Kenny and current EU commissioner, Phil Hogan, has long persisted. The main opposition parties have concentrated on this potential exposure of the Taoiseach to the ongoing dispute between the INM and the ODCE, which is investigating an alleged data breach by the company affecting senior staff, journalists, lawyers and others as well as issues over the, since abandoned, attempt by Buckley to get INM to buy Newstalk, the radio station controlled by O’Brien. According to a protected disclosure by former INM chief executive, Robert Pitt, Buckley tried to get the board to pay substantially more for Newstalk than he and his advisors thought it was worth. O’Neachtain, of course, is a former press officer for Fianna Fáil and once toiled day and night to defend Bertie Ahern as he sought to explain his inexplicable financial arrangements to the Mahon Tribunal during the period he was a finance minister, without a bank account. No doubt he knows where other Fianna Fáil skeletons are buried and indeed must be aware of a thing orf two about Fine Gael having advised Enda Kenny during his term at Taoiseach. But Fianna Fáil is also holding fire because it does not want to provoke a general election which would edge closer if Naughten were forced out of cabinet and government, potentially weakening the wafer-thin voting balance in the current Dáil. Besides, following the next election the party may need the support of independents like Naughten. Sinn Féin is reluctant to do anything which could jeopardise the stability of government in advance of the referendum to repeal the 8th amendment in late May. Frank Connolly

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Ireland, Italy and the Disclosures Tribunal

by David Langwallner 11 May, 2018 0 Comments

Leonardo Sciascia was an Italian political journalist, an elected radical member of parliament and the most prominent anti-mafia critic. All of this features in his famous detective novels which are in fact anti-detective novels or works of political observation. Coupled with his masterly analysis of the assassination by the Red Brigade of the Christian Democrat conciliator and former Prime Minister Aldo Moro they amount to a sustained critique of Italian and Sicilian political and cultural life. They reflect the complex interstices of corruption and collusion between extreme-right-wing Catholicism, organised crime and the shadowy self-protection syndicates of big business, politics, a malevolent state bureaucracy and crime. His books show the lethal effects of innuendo, smoke, mirrors and sighs, the nefarious rumour mill, shadows. Sciascia was a specialist in the mafia and he demonstrated how they kill and destroy. First they isolate, disempower and then denigrate. They in effect demonise their prey. And those who seek to investigate them, such as Judge Giovanni Falcone, who act on principle are destroyed in the process. This is exquisitely detailed in ‘Equal Danger’, his best book. In Sciascia’s fiction, it is the detective, not the murderer, who is isolated and suspected. Ironically in the end Sciascia attacked the crusading judges as putting civil rights at stake in an article, when he was dying, that irredeemably punctured his reputation, by attacking Falcone as a celebrity judge. This is deeply relevant to Ireland. Our mafia are our corrupt politicians, bankers and lawyers and the toxic relationship of our shadow state of governance between the police and the justice department. Those who challenge corruption or blow the whistle are reputationally destroyed, personally attacked, framed, driven to self-destruction or simply disposed of. Ireland is Italy and “equal danger” a cautionary text. The smearing of the state knows no boundaries and frequent collusion with Tulsa a criminal conspiracy maintained by many lawyers who should be disbarred. Another Sciascia theme, particularly evident in his most famous text, ‘The day of the Owl’ is the Sicilian trait of anomie or indifference. A shrug of the shoulders. It is what it is. Life moves on. Principle, justice and the truth are a waste of time. In controlled societies such as Ireland and Italy Sciascia’s books show the lethal effects of innuendo, smoke, mirrors and sighs, the nefarious rumour mill, shadows, in Italy trivialisation amounts to a resigned admission that the victims of crime had it coming to them in some obscure way. It betrays a desire for yourself not to go the same way. Being principled in an unprincipled society is very difficult. We know more than 10 black sacks of shredding left the office of the Commissioner under the supervision of a superintendent who has given evidence twice already to the Tribunal. The phone of the two past heads of national intelligence, Callinan and Ms. O’Sullivan are gone…vanished, destroyed. Yet no issue of the destruction of crucial evidence seems to be of concern to the Tribunal. It was the husband of the former Commissioner O’Sullivan who was appointed to take charge of the investigation into Superintendent Taylor. The phone of the Superintendent was taken but that crucial evidence too is lost. It seems to be simply a matter of no consequence. A judge whose orientation in private practice was prosecutorial and who, on the bench, has been somewhat indulgent of changes to evidential exclusionary rules to the advantage of fact-gathering gardaí, risks steering a Tribunal away from the glaringly obvious criminality of the highest level of the Department of Justice and the police. Moreover Maurice McCabe is represented at the Tribunal by former Minister for Justice Michael McDowell SC, a long-time and visceral political defender of the police and law and order. If I were McCabe I would contemplate refreshing my legal representation and wonder how the now ascendant narrative is that a cock-up rather than obvious state criminality smeared him. He should dwell on whether it was in fact appropriate for him to concede that the evidence established that the inclusion of the false allegation against him of rape in the 2013 Tusla report “was some form of cut and paste error”, and that the error was not the result of any deliberate action or ill will. And he should consider how the damning evidence of the press secretary Dave Taylor was not addressed first, as the Tribunal’s first module, as dictated by the terms of reference; and how the sequence of modules was altered so the less clearcut Tusla model was heard first. Instead the Tribunal opened with an arbitrarily selected series of smokescreen narratives implying a cock-up by Tulsa, and culpability for outlying zealot Callinan perhaps. Noel Waters, former Secretary General of the Department of Justice, has suffered from amnesia. In his evidence to the Tribunal he declared he could not remember, on nearly 50 occasions. Most damningly, he spoke to Nóirín O’Sullivan at a crucial moment during the O’Higgins Commission which in 2015 was looking at allegations of poor policing in Cavan/ Monaghan made by Sergeant McCabe, phone records indicate. However, neither Waters nor O’Sullivan can remember the 14-minute call on May 15, 2015. The crucial moment was when O’Sullivan’s lawyers were asked by the commission to confirm that they had been instructed to attack Sergeant McCabe’s motivation, and the commission adjourned briefly so that she could be contacted. The Tribunal had previously heard that O’Sullivan “sought time to speak to the Department of Justice” before confirming her original instructions. The Department has maintained neither it nor then Minister for Justice Frances Fitzgerald had prior knowledge of, or input into, the legal strategy. Waters said he could not remember the call, and insisted the Department had played no role in the strategy. When it was put to him by Tribunal counsel, Diarmaid McGuinness SC, that it was reasonable to assume he and O’Sullivan discussed what was occurring at O’Higgins that day, Waters replied: “I have to say in response that I have no recollection of that at all”.

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Village Idiot

Village Idiot March 2018

by admin 22 April, 2018 0 Comments

His TV credits include ‘Dirty Money: The story of the Criminal Assets Bureau’ and ‘Paul Williams Investigates – ‘The Battle for the Gas Fields’ about the policing of the Corrib Gas protests. ‘Secret Love’ (1995) with Phylis Hamilton told the story of her secret 20-year love affair with Ireland’s most outspoken Catholic priest, Fr Michael Cleary. Williams always tells it as it is, or at least as the gardaí see it. He also writes books: ‘Gangland’ (1998), ‘Evil Empire’ (2001), ‘Crimelords’ (2003), ‘The Untouchables’ (2006), ‘Crime Wars’ (2008), ‘Badfellas’ (2011) and ‘Murder Inc’ (2014). He is known for bravely confronting crimelord John Gilligan about the murder of journalist, Veronica Guerin. The Sunday Tribune said as long ago as 2008 that a common criticism of Williams is that he is “little more than a cheerleader for the gardaí” and noted Williams’s tendency to steer away from any crime or corruption within the force. In 2013 he told an interviewer that “most of my friends are police”. He often explains that particular people are damningly “known to gardaí”. Williams has been criticised for his tendency to give nicknames such as “The Tosser”, “The Penguin”, “Babyface” and “Fatpuss” to the criminals he is reporting on as it tends to glamourise the criminals. In 2011 he joined the Irish Sun, as ‘Investigations Editor’. Since 2012, he has contributed to the Irish Independent where he’s a mate of the editor, as ‘Special Correspondent’. In 2016 Williams joined the newly revamped ‘Newstalk’ schedule as a co-presenter with Shane Coleman on the Breakfast Show. According to the Irish Times: “Williams’s chief asset remains his hard-boiled, fuming persona. It’s not just the criminal fraternity and the Garda hierarchy he takes aim at, but anyone who smacks of being lily-livered or politically correct. He talks about ‘the snobby world of literature’ and dismisses President Michael D Higgins’s voluntary pay cut with a curt ‘big bloody deal’, while constantly making cracks about ‘the Shinners’”. He described the Jobstown protesters on-air last July as “assholes”, “bastards”, “thugs” and “bullyboys”. The BAI didn’t like it. The Charleton (or Disclosures) tribunal is looking into whether Sergeant Maurice McCabe was the target of a smear campaign. Last year Williams told the Tribunal that it was “absolutely false” that he was “in some way acting as a puppet for the guards” in 2014 when he met Ms D, the woman who made allegations of abuse against McCabe in 2006. Her father, a garda at Bailieboro garda station, was moved to other duties after a disciplinary tribunal into his performance was launched after complaints from Sergeant McCabe. McCabe has told the tribunal of a 2016 meeting with Superintendent Dave Taylor of the Garda Press Office during which he said he was told “hundreds” or “thousands” of text messages had been composed by then-Commissioner Martin Callinan and forwarded to senior Garda officers, journalists, and politicians, on Callinan’s orders. “If there was an article praising me, Callinan would say ‘use your phone, do him down, he has to be buried’”. McCabe said Taylor said he would be encouraged to say that McCabe had been investigated for sexual assault. Taylor has specifically told the tribunal that he never sent any negative texts about McCabe to journalists and conveyed it all verbally. Williams told the tribunal that he was never negatively briefed against McCabe but rather, off the record, that there had been an investigation in 2006 into Ms D’s allegation and that the director of public prosecutions had decided not to bring proceedings. In March 2018 McCabe told the tribunal that when in 2014 an article by Paul Williams was published just a few months later containing an anonymised version of Ms D’s allegations, McCabe said he knew “exactly who it was pointing at”. He was not identified in the article, but said he knew it was about him and felt it was “payback”. The article started: “A young woman who was allegedly sexually assaulted as a child by a serving garda claims the incident was covered up through a botched investigation”. “Sure, it was awful. I mean, I have been cleared, completely, and I should have been left alone”, said McCabe. “I can’t prove it, but I knew it was in relation to what I was doing, in relation to penalty points”. TD Joan Collins has named Williams under Dáil privilege as one of those to benefit from having their penalty points cancelled by gardaí. Williams has previously given evidence that he was contacted directly by Ms D and was not negatively briefed about McCabe by Garda Headquarters.

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No one cares about Garda retaining phonecall data

by Gerard Cunningham 23 February, 2016 0 Comments

Twenty years ago, Letterkenny gardai sent a request to Garda HQ looking for selected phone records in the county. The request was part of the Donegal Garda inquiry into the death of cattle dealer Ritchie Barron, which was botched and complaints about which, from an extended family, the McBreartys, led to the Morris tribunal. Morris called for wide-ranging reforms in Garda management. These have mostly not materialised. In 1995 Telecom Eireann was busy preparing for privatisation as Eircom, and part of that process included major upgrades to the computer systems involved in recording and billing for telephone calls. Unfortunately for the Donegal gardaí, that meant their requests for phone records were taking forever. The law on Garda access to phone records was written in 1993, following repeated scandals over the bugging of journalists’ phones by Charlie Haughey and his slippery justice minister, Sean Doherty. In its first year, Telecom Éireann received 234 Garda requests for phone records. By 1997 the number of requests annually had grown to 1300. Michael Diffley, the Crime and Security chief superintendent assigned to phone traces, wrote to the company on 30 January 1997 to complain that 503 non-Dublin phone requests were still outstanding from the previous year. An internal Eircom memorandum on 10 February 1997 showed only 45 of 358 Garda requests had been processed between June and September 1996. Things looked better between September and December 1996, with only nine of 224 requests outstanding. However, from December to February 1997, 62 of 117 requests were not completed. The system was erratic at best. In Donegal, as everywhere else, the delays hampered investigations. After a senior officer at a conference on the Barron case complained about the delays, one garda spoke up. His brother-in-law worked at Garda HQ – maybe he could pull a few strings. “I contacted my brother in law, Detective Inspector Patrick Nyhan, who is based in Crime and Security”, garda John O’Toole later told the Morris tribunal. “I explained the situation to him, that we had applied for these through the normal channels, and that we had experienced delays, and that there was frustration, and asked him if he could help us get the phone calls, about the information that we had sought”. O’Toole read off a series of telephone numbers and times to Nyhan, and “asked him if he could speed it up or if he could get the calls”. “And he said he would get back to me. And I think about a week later or a number of days, a week later, he contacted me by phone at the Garda station, and he asked me for the fax number, and he faxed me down information in relation to some of the phone calls. He did say that he was unable to get incoming calls, and was only able to get outgoing calls from some of the numbers”. The fax from Nyhan to O’Toole no longer exists. Since O’Toole did not intend to use it in evidence, and he “wasn’t that happy about the manner in which I obtained it and I didn’t want to hold on to it’ he and another officer ‘decided it be destroyed, and I destroyed that information”. Detective Inspector Patrick Nyhan was not called to give evidence at the tribunal, but he was interviewed by tribunal investigator Michael Finn on 5 October 2004, four days after O’Toole gave his evidence. Nyhan said he asked O’Toole if an official application had been made, and was assured it had. He took down the details, and went to see his chief superintendent Michael Dif ey to “give it a push”, but Diffley was not in his office when he called in. The 1993 Act required that any request for telephone data should come from a chief superintendent, and Diffley was the designated liaison with Telecom Éireann at the time. Nyhan called the GPO Investigation Branch. He spoke to “a fellow who was very helpful”, though he could not recall his name. A week or so later, he received an envelope with a compliment slip through the internal mail system and inside it was “a number of sheets with details of telephone calls”. Nyhan then faxed the sheets to Letterkenny. He said this was the only time he had ever contacted the Investigation Unit looking for telephone records. The word “illegal” is never used in the Morris report to refer to the O’Toole/Nyhan search for phone records. Neither is “unofficial” or “irregular”, both words used at tribunal hearings by barristers as they danced around what O’Toole and Nyhan had done. O’Toole’s own barrister merely referred to “procuring telephone records…through a fast track channel”. The strongest criticism of the operation came from Donegal solicitor Paudge Dorrian who, while questioning O’Toole on behalf of Sergeant John White, said the records were “illegally and improperly obtained”. In his report Justice Morris described the incident as an “informal enquiry”. The “fellow who was very helpful” in the GPO was never identified. Arising out of the incident, the Morris tribunal made two recommendations. Neither has anything to do with protecting customers’ data, as demanded by the Data Protection Act 1988, and safeguarded by the requirements of the Interception of Postal Packets and Telecommunications Messages Act 1993. Instead, the recommendations call on the Communications Regulator to ensure that telephone operators respond quickly to Garda requests, and for the Department of Justice to look into storing phone records data from multiple telecoms providers in “an independent databank”. In other words, the lesson the tribunal gleaned from the bypassing of surveillance safeguards was that An Garda Síochána needed more surveillance powers. Whether those recommendations were needed is a moot point. In 2001, Karlin Lillington had revealed that telecom operators were storing phone records for up to six years, and chief superintendent Diffley had told the Morris tribunal that An Garda Síochána could often access call records within “minutes” of a call being made. The Morris report was published in May 2005, just as the Garda Síochána

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Review: Faith in Politics by John Bruton

by Michael Smith 26 January, 2016 0 Comments

John Bruton (Taoiseach 1994-7, Minister for Finance 1981-2, 1986-7) has a book out. His publisher, Currach Press, suggested journalists might like to interview the lively former Taoiseach. I signed up and an appointment was arranged. The morning of our interview the man from Currach texted to say Bruton was concerned it should be primarily about the book and then half an hour later to say there was bad news, Bruton would not do it and he would not say why. I said I’d do it by email and was mostly interested in the book. Currach said they would get back to him. But I heard no more. Rude. Maybe he was worried I’d ask him about Cherrywood. In 2006 Bruton told the Mahon (Planning) Tribunal that a donation of £2,500 to him as party leader was received from Monarch Properties in November 1992, during the general election campaign. At that time I was campaigning against a make-or-break rezoning scheme being pursued by Monarch for 234 acres in Cherrywood, Co Dublin. Most Fine Gael County Councillors had not supported the rezoning in 1992 but they would vote for it in 1993: in addition to Bruton, nine out of the 12 FG Councillors who would talk to their party’s internal Inquiry in 2000 admitted receiving money from Monarch or Frank Dunlop (or both) in the 1991-1993 period when I was concerned with the Cherrywood vote. Monarch’s boss, Phil Monahan, had told me he was paying Councillors for rezonings and that many of the Fine Gaelers would vote against it in 1992 but in favour (when it really counted) in 1993. Monarch was duly found by the tribunal to have obtained the rezoning corruptly. During the 1997 general election campaign, the party received a further cheque for £3,800 from Monarch Properties. Later Bruton said he had not tried to “whip” Fine Gael Councillors on 78-member Dublin County Council though he had pressured his 19 party councillors to act coherently when he met them in September 1993: Councillor Mary Muldoon told him that acting coherently would require the minority of non-rezoners moving to back the majority of rezoners. The Council rezoned the Monarch lands shortly afterwards, in November 1993. According to leaflets we produced at the time FG voted 7:7 on the up-zoning in 1992. By 1993 their vote was 12:5 in favour. Why did so many change their minds? The torpid tribunal never asked. Frank Dunlop informed the planning tribunal that he had told Bruton about demands for a £250,000 bribe made to him by a Fine Gael councillor, Tom Hand, to rezone the Quarryvale development. Dunlop testified that Bruton replied, “There are no angels in the world or in Fine Gael”. Bruton vehemently denied this but, following further inculpatory evidence at the Tribunal, returned and conceded that “it gradually came back to me”, that Dunlop, “did say to me something about a councillor looking for money”. He acknowledged that he did not investigate the matter because he had found the story told to him by Dunlop “exceptionally hard to believe”. Anyway the book: Faith and Politics: I couldn’t really see the connection. Bruton is is an intellectual by Irish political standards but he’s wrong to endorse GK Chesterton’s illogical comment that “When a man stops believing in God he doesn’t believe in nothing, he believes in anything”. It is good to see an assiduous Christian Democrat recognise that freedom is no alternative to ethics, as it says nothing about how we should treat one another. He’s right the Rising probably held back a 32-County consensual Republic, and that support for “our gallant [Axis] Allies in Europe” weakened our case for independence, at the 1919 Paris Peace Conference. He’s right that the obligation on Northern MLAs to declare themselves Nationalist or Unionist is now holding back a new politics that transcends history. He’s wrong to even contemplate that we can burn all the fossil fuels left in the world. I hadn’t realised how consistently the EU had emphasised the need for economic and monetary union and (as far back as the 1971 Werner report) that it would involve EU involvement in domestic economic policy. It’s interesting that a man of Bruton’s experience considers a third party in coalition can mitigate tensions. Sometimes he is demonstrably illogical as where he claims that 30 minutes daily spent on religion in schools has not reduced Irish educational attainment because we have been doing it for generations and the reductions are only recent; but then claims that teaching Irish, which we have also been doing for generations, has reduced educational attainment. Some of his articles seem hastily put together, like the ill-thought- through views on ‘waste’ and the half-baked views on Ireland’s “strengths and weaknesses”. And more generally it’s unwise for an ex-Taoiseach to preach the need for Irish people to do more with less when he has a public-sector pension of €141,849 and, perhaps because he’s getting a six-figure salary as president of the IFSC, to obtusely advocate reining in regulation of the banks. Michael Smith

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Legal affairs

by Michael Smith 26 January, 2016 0 Comments

Village is loth to get into the salaciousness that drives the professional classes in decadent Dublin. Nevertheless the integrity of the judiciary, and indeed the perception of that integrity, has to be beyond doubt and a story unfortunately came our way which challenged it, anonymously, and was accompanied by affidavits submitted for in camera family proceedings. A bankrupt developer with an alpha personality and omega ethics alleged in the affidavits, which he was never allowed to open in court, that Irish High Court and Supreme Court judgments against him were tainted with bias because the lead Supreme Court judge in his case had an alleged affair affair with the High Court Judge who determined the matter originally, and that the Supreme Court judge anyway had shown in dealings with him in the judge’s former life as a barrister, that he despised him. The developer’s affidavits are clumsily drafted and he is careless as to whether the relationship may have continued at times when the Supreme Court judge heard the action – on occasion fudging the tenses about the timing of the relationship. Nevertheless as a matter of fact the relationship had ended by the time of the Supreme Court hearing, even if it had subsisted, insignificantly and irrelevantly, during the High Court hearing. The High Court judgment was persuasively damning of the developer personally, finding he had deliberately and fraudulently failed to make certain disclosures and misled the court and his ex-wife. The developer claimed he had been in the process of preparing disclosures when a settlement was reached that obviated the necessity for him to make the disclosures. But the High Court, on the facts, said there was no evidence of this. He had engaged in litigation misconduct. The appeal was fast-tracked to the Supreme Court but took four years to be heard. At the last minute, the Supreme Court panel of judges was apparently changed, with the particular Supreme Court justice who had allegedly had the affair stepping in to replace a judge who had been originally listed to sit. The developer claims to have been wrong-footed by the change between the judges and would have aimed to pre-empt the Supreme Court judge sitting on the matter had he known he intended to do so. He claims he had already advised his solicitor of the potential for the judge being compromised. His legal team noted that day one of a two-day appeal was already over, and they didn’t dare question the judicial etiquette. The Supreme Court upheld all the High Court’s substantive reasoning. When the judge endorsed his alleged former lover’s strong judgment without – according to the developer – “canvassing” all the developer’s fundamental grounds, the developer sought redress on grounds that there was a reasonable suspicion of objective or apprehended bias. Justice must not just be done but be seen to be done, was the cry. However, these days thankfully an alleged affair between judges that may have been finished for years does not constitute, or rather does not necessarily constitute, a reason for the appellate judge to refuse to hear an appeal of his former lover’s judgment. For obvious reasons the developer had difficulty getting any Irish lawyers to take on his prurient case. In the end he sought help from UK barristers but ultimately the Official Assignee in Bankruptcy successfully objected to the developer taking a judicial-bias challenge because he was bankrupt and therefore lacked the standing to take the case. The Assignee in Bankruptcy took the reasonable stance that even if the judgments were overturned it would not be appropriate for the Assignee, who alone could take the decision do so, to refight the substantive issues of fraud, failed disclosure etc on the part of the dubious developer. Even if the unsubstantiated allegation of bias could be proved, it would achieve nothing, for the case was not worth re-running. Michael Smith

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

by Michael Smith 20 February, 2015 0 Comments

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