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4 March/April July 4
W
hatsApp correspondence published in
Village Magazine in November 2020
under the headline ‘Leo Always Delivers’,
showed that in April 2019 then-Taoiseach
Leo Varadkar transferred the confidential
draft (it was subsequently amended 30 times) heads of
agreement for the contract being negotiated between
government and the Irish Medical Organisation to a friend
of his. That friend was the president of a rival doctors’
representative organisation, the National Association of
GPs (NAGP), Dr Maitiú (Matt) O Tuathail.
As this magazine said at the time, that transfer
constituted a crime under the Ocial Secrets Act 1963
(OSA) and, possibly, under the Criminal Justice (Corruption
Oences) Act 2018 (the “Corruption Act”).
At no time has Village ever said that Mr Varadkar had
been convicted of a crime but, instead, the assertion we
made was that his actions were, objectively, a crime.
Village has seen definitive legal advice that the
maximum allowable period for a summary prosecution of
an oence under the OSA is six months from the date of
the commission of the oence. An alternative prosecution
on indictment only applies in cases of breaches of the OSA
that aect national security.
This one did not and so it would not have been possible
for the DPP, Catherine Pierse, to prosecute this particular
crime under the OSA. Village believes that Pierse’s
decision not to prosecute will most likely have been
determined by the fact a prosecution had run out of time.
It is worth, as an aside, recording, with exasperation,
that no Minister has ever been prosecuted, let alone
convicted, under the OSA, in Ireland (or the similar UK
legislation).
To be clear, a decision by the DPP not to prosecute is not
the same thing as a decision that there has been no
criminality.
Any decision by the DPP not to prosecute could be
because prosecution has run out of time — or because
there is not enough evidence to prove the case beyond
reasonable doubt; or because the case might not be, for
whatever reason, in the public interest.
Therefore the DPP’s decision not to prosecute probably
does not aect the validity of our claim. We cannot be
expected to row back from it.
As to the Corruption Act, it provides in Section 7 (2): “An
Irish ocial [which all agree includes a Taoiseach] who
uses confidential information obtained in the course of his
or her oce, employment, position or business for the
purpose of corruptly obtaining a gift, consideration or
advantage for himself or herself or for any other person
shall be guilty of an oence”.
We will not rehearse the arguments we have made as to
the applicability of the Corruption Act in this case.
However, the key point is that it focuses on advantage
rather than simply monetary gain, and that the advantage
can be conferred on either the person passing, or the
person receiving, the information.
A solicitor with Arthur Cox, Tara Roche, recently wrote:
“to date, investigations into allegations of bribery or
corruption in Ireland have been uncommon and there have
been no prosecutions under the Corruption Act”. However,
this trend appears to be changing slowly. The Garda
National Economic Crime Bureau now has a team
dedicated to the investigation of serious and complex
economic crimes.
That suggests that, one way or another, white-collar
crime will now be prosecuted far more often.
The complexity, including, presumably, huge degree of
legal complexity, of the Varadkar case resulted in
inevitable delays. The Garda took 18 months to create a
file of several hundred pages, in which they made no
recommendation.
Furthermore, it is believed that the DPP also obtained
external counsels’ advice. There cannot be any doubt that
this was, and was treated by the authorities as, a non-
trivial case, despite the contrary claims of many charlatans
- especially charlatans in Ireland’s one-time newspaper of
record.
Despite all this, some still persist in claiming that
Village’s headlines are defamatory. Mr Varadkar himself
originally and rudely said he would not sue Village for
defamation as it would be like suing someone on Twitter.
The analogy is unsound.
Then, after the decision not to prosecute him, Mr
Varadkar declined to sue for fear that his “sworn enemies”
would use the opportunity to immiserate him.
Howeverr, he also acknowledged some time ago that
the time at which it was permissible for him to launch
defamation proceedings has now passed..
Arguably he could apply for an extension to that period
but the correct procedure would have been to initiate his
defamation action and then apply to postpone proceedings
until the investigation into his criminal conduct had
concluded.
The way he went about claiming defamation by Village
was, to borrow his own phrase “not best practice”.
Village asserts Mr Varadkar’s right to due process of the
law in full and we share his concerns about the invidious
position in which people find themselves while waiting for
a criminal complaint to be resolved. Village also asserts
Mr Varadkar’s right to the presumption of innocence under
the law. For all that we disagree with the outcome, the
criminal process has been exhausted and the matter is
closed.
But Village stands by its story.
Undoubtedly this grinding process will have been
personally taxing. Politics aside, Village wishes Mr
Varadkar well.
Village stands by Varadkar-leak story,
but after due process, the Tánaiste
remains innocent in the eyes of the law
EDITORIAL
Issue 77
July 2022
Chllenging he endemiclly
complcen nd ohers by
he cue promoion of
equliy, susinbiliy nd
ccounbiliy
ONLINE
www.villgemgzine.ie
@VillgeMgIRE
EDITOR
Michel Smih
edior@villgemgzine.ie
ADVERTISING
sles@villge.ie
DESIGN AND PRODUCTION
Lenny Rooney
PRINTERS
Boylns, Droghed,
Co Louh
VILLAGE IS PUBLISHED BY
Ormond Quy Publishing
Ormond Quy Upper,
Dublin
