The Tribunal Tapes
The acknowledgement that private interviews were recorded is potentially terminal for the tribunal . In his judgement on 27 April last on an application by Hazel Lawlor, widow of Liam Lawlor, for a “stay” on the present hearings of the Mahon Tribunal , a judge of the High Court, Iarfhlaith O'Neill, noted: “The Court was told that apart from a tape-recording made by Mr Noel Smith, solicitor, of an interview with a client of his (Tom Gilmartin) and which was furnished to the Tribunal , no other electronic recording was made or kept by the tribunal ”.
This information, conveyed to the High Court by the tribunal , was in straight conflict with evidence that recordings were indeed made of private interviews with witnesses, aside from the admission recently made that there are indeed tape recordings of private interviews.
This evidence is cited on the document reproduced on these pages. Village has seen several other documents with the same evidence.
The private interviews were interviews conducted by tribunal lawyers with potential witnesses. The interviews were, supposedly, part of a preliminary process whereby the tribunal would decide whether there was sufficient evidence of wrong-doing to merit a public investigation.
The private interviews were transcribed and, as we now know, also audio recorded (or at least some of them were). These private interviews have become of central significance to the tribunal 's proceedings for, it has emerged that at least one witness, Tom Gilmartin, has made allegations in public sessions of the tribunal that has been in direct conflict with what he told the tribunal lawyers in private, thereby raising questions about his credibility as a witness.
But because the private interviews had remained private, it was not known until later – actually until the cross examination of Tom Gilmartin on 16 March 2004 – that Tom Gilmartin had made statements in private at variance with what he was saying in public.
Because of a court order of 2004, all material relevant to any party before the tribunal must now be disclosed to that party, a large volume of the transcripts of the private interviews have become available.
But a curious feature of these transcripts is that every now and again the interview went “off record”. It is not at all apparent why this was so and there is a concern that perhaps in the “off-the-record” portions of the private interviews, things were said by lawyers for the tribunal that would be prejudicial to the interest of persons before the tribunaland even an abuse of process (there is no suggestion here that this was in fact so).
Queries were made of the tribunalwhether there were audio recordings of these private interviews and the tribunal at all times responded there were no recordings.
However, in response to that order of the High Court, the tribunal forwarded thousands of pages of documents to the representatives of the late Liam Lawlor, almost all related to issues concerning Liam Lawlor, including transcripts of private interviews conducted with witnesses relevant to Liam Lawlor.
But, in error, transcripts of other private interviews were included, interviews that were irrelevant to Liam Lawlor. Two of these were a transcripts of interviews with Frank Finnegan, who was employed at the time by McCarthy and Partners (Engineers) who did work for Jim Kennedy, one of those allegedly involved in Carrickmines. Another transcript was an interview with John Allen, manager of a bank with which Frank Dunlop had dealings. Another was an interview with Paul Sheeran, manager of a bank with which Tom Gilmartin had dealings and then two transcripts of interviews with Frank Dunlop.
Unlike transcripts of other private interviews forwarded to the representatives of Liam Lawlor, there was a cover page on each of these transcripts and on the cover page of these was a stamp recording receipt of the transcript in question by the tribunal. The stamp included the date of receipt. But written into the stamp in clear handwriting are the notations “by hand + disquette + audio cassette”. It seems clear from these notations that the stamp and insert on these cover pages these cover pages record the receipt of the transcript of the private interviews, along with the relevant audio recordings.
Copies of these transcripts with the stamps affixed were made available to the High Court in the recent Hazel Lawlor hearing but the tribunal insisted there were no recordings. Now the concession to the Lawlor family that these were indeed recordings raises questions about the conduct of the tribunal and the possibility of further revelations on how it conducted these private interviews that could prove not just embarrassing but fatal to the continuance of its proceedings.
As stated, a feature of these private interviews as revealed by the transcripts that have become available because of an order of the High Court, affirmed by the Supreme Court, is the number of occasions that the interviews went “off record”. In the private interviews conducted with Frank Dunlop alone the now released transcripts of the private discussions show that there were 17 instances in which the parties went “off record”.
There is no obvious explanation why private interviews, conducted at a time when the tribunal lawyers and witnesses had no anticipation that the transcripts of the interviews would ever be disclosed, would need to “go off record”. Even if there was a possibility the transcripts would be later revealed, there is still no explanation why the “off record” process was required, unless the “off record” discussion would reveal information damaging to the tribunal or the witness in question – that is information that otherwise would not be disclosed.
There is already concern that tribunal lawyers may have appeared to have offered advice to witnesses, notably Tom Gilmartin and Frank Dunlop (see separate stories) and there is suspicion among some witnesses that the “off record” discussion may have involved further compromising material.
In another transcript released to the Lawlor representatives – again, apparently, in error – is of a private interview with the veteran developer, John Byrne, a close fiend of the late Charles Haughey. This recorded at one stage: “The discussion went off record”. Then the transcript shows counsel saying: “We'll go back on tape, if we can at this point”.
This seems to have been an acknowledgement by one of the counsel for the tribunal that some of the interview was being tape recorded, which suggests there may have been a general awareness among some lawyers connected with the tribunal that at least some interviews were tape recorded but, again, we are not insinuating there was anything improper in the conduct of lawyers for the tribunal .