Tribunal trouble

Tens of millions of euro and nearly eight years later, the legality of the conduct of both the Moriarty and the Planning Tribunals have been challenged by a Supreme Court judgment. The Court has found unconstitutional the denial of documents to a witness, described as 'amazing' a procedure adopted by it and raised doubts about the lawfulness of Tribunals' private 'information gathering'. By Vincent Browne

One of the star witnesses at the Planning Tribunal (now chaired by Judge Alan Mahon) has been Tom Gilmartin, the English-based property developer, originally from Mayo. In the course of his evidence to the Tribunal, Gilmartin made serious allegations about another property developer, Owen O'Callaghan of Cork. The two were in business together for a while but fell out over matters to do with the development of Quarryvale in the Liffey Valley.

In a public session of the Tribunal on 4 March 2004, Gilmartin described O'Callaghan as a crook and a blackmailer. He said O'Callaghan and his solicitor had falsified a document which purported to be an agreement entered into by him and O'Callaghan. He said that O'Callaghan had told him at their first meeting on 7 December 1988 that he (O'Callaghan) had just come from a dinner for the launch of the Lee Tunnel in Cork and that he (O'Callaghan) had had the line of the tunnel altered to suit a site which he owned.

He said O'Callaghan had given false evidence to the British Revenue authorities which had resulted in him (Gilmartin) being declared bankrupt. He said O'Callaghan had bribed a named local councilor. He alleged O'Callaghan, with the connivance of a bank, had stolen his (Gilmartin's) money and had used it to bribe councillors to block rezoning for the Quarryvale scheme. He said O'Callaghan had encouraged him not to co-operate with a Garda investigation into corruption.

A few weeks after Gilmartin had made this very damming allegations about O'Callaghan, the latter's solicitor wrote to the Planning Tribunal asking for copies of all statements made in private to the Tribunal by Gilmartin. The purpose of the request was to see if statements Gilmartin had made previously were consistent with statements he was then making and this was sought in connection with the anticipated cross-examination of Gilmartin by counsel for O'Callaghan. The point of this being that if it emerged that Gilmartin previously had made statements that differed from what he was then alleging then the credibility of his evidence generally might be in doubt.

On 24 March 2004 the chairman of the Tribunal, Judge Alan Mahon replied to these requests in open session. Essentially what Judge Mahon said was that a narrative statement that Gilmartin had given to the Tribunal already had been circulated. He said the Tribunal had a duty of confidentiality to persons from whom it had received documents in confidence. He said "documents will only be circulated where the Tribunal has determined that they are the relevant, admissible and probative" (the judge is responsible for the misuse of the word "only"). Only in exceptional circumstances would the Tribunal disclose documents made available on a confidential basis. He said that documents arising from interviews with witnesses in private where the property of the Tribunal and the Tribunal had ruled already that such documents would not be circulated.

Shortly afterwards counsel for O'Callaghan cross-examined Gilmartin on the issue of the Lee Tunnel in Cork. He put it to him that the tunnel did not open until 1999 and therefore O'Callaghan could not be coming from a dinner to launch the tunnel eleven years earlier, in 1988. Further that no decision had been taken to construct the tunnel until 1991 and the land allegedly favoured by the change of the line of the tunnel had not be acquired by O'Callaghan until 1997 following a public tender. Therefore Gilmartin's claims about the Lee Tunnel had to be entirely false.

At this stage in the proceedings, counsel for the Tribunal, Patricia Dillon SC intervened. She said no documentation had been supplied to the Tribunal in relation to the Lee Tunnel by O'Callaghan. She said "there are no surprises here", by which she meant that nobody could introduce new material unless the tribunal had been notified in advance.

Counsel for O'Callaghan said he was not referring to any documentation, he was putting certain facts to Gilmartin. But to no avail, the Tribunal chairman intervened and stopped the line of questioning.

O'Callaghan applied to the High Court for an Order overturning the ruling of the Tribunal in refusing to disclose all relevant documents pertaining to the evidence of Gilmartin. The High Court granted the Order. The Tribunal appealed to the Supreme Court and on 9 March last Adrian Hardiman, on behalf of the judges of the Court delivered a judgment (another judge, Hugh Geoghan, also issued a judgment also dismissing the appeal but differing slightly with Adrian Hardiman).

Commenting on the intervention of Patricia Dillon SC saying "there are no surprises here". Adrian Hardiman said, "In all the circumstances, the … comment can only be described as amazing" (again the judge is responsible for the placing of the world "only").

He said that one of the points of cross examination was to show inconsistency or inconsistency of evidence with previous statements. He noted that very grave allegations had been made about O'Callaghan by Gilmartin and that these obviously had besmirched his good name. He said that O'Callaghan was entitled to all the rights that the Supreme Court had laid down in a 1971 case involving the brother of Charles Haughey, the late "Jock" Haughey, including a copy of evidence which reflected on O'Callaghan's good name.

He said O'Callaghan was entitled to get the documents held by the Tribunal and the refusal of the Tribunal to give him these documents was a breach of his (O'Callaghan's) constitutional rights. He said the Tribunal's claim to be master of its own proceedings did not extend to interference with so vital a constitutional right as a right to one's good name.

But Adrian Hardiman went beyond the issues immediately involved in the application of O'Callaghan. He mentioned that with the exception of the days when Gilmartin gave evidence in public, all these dealings had been conducted in private."The primary purpose of a Tribunal of inquiry is to conduct a full public inquiry" (emphasis added). The Parliamentary request to conduct preliminary investigations in private is for the sole purpose of determining whether there is a basis for undertaking a public inquiry into the issues concerned. "This is a threshold issue, requiring only a bare minimum of evidence' (emphasis added)….

"The Tribunal has not confined its private inquiries to the sole question of whether there is sufficient evidence to warrant proceeding to public inquiry; it has also used the private inquiry for 'information gathering' purposes. This in itself has not been challenged in these proceedings and I make no comment on it. But I am deeply concerned that, if the information gathered in the private phase is to be shrouded in permanent secrecy there is a grave danger of a shift in the very nature of the Tribunal itself. This procedure would alter the Tribunal from being a public inquiry with a private, limited, preliminary phase to one in which a good deal of the real business would be done in private."

While the comment may not be authoritative, in the sense that it represents a direction by the Supreme Court on the conduct of enquiries, because this was not at issue in these proceedings, it is nonetheless an indication of the thinking of the Supreme Court on the issue.

What this means is essentially is that the manner in which Tribunals have been conducting their business, especially the Planning Tribunal and the Moriarty Tribunal which is enquiring into payments to Charles Haughey and Michael Lowry, may well be unlawful. Adrian Hardiman was saying that the private investigation of their inquiries must be only a "bare minimum" instead of the very exhaustive process currently conducted by the Tribunals.

Both the Moriarty Tribunal and the Planning Tribunal were established in September 1997, seven-and-a-half years ago. During that time the Moriarty tribunal has sat in public session on only 286 days, an average of 38 days a year. The rest of its proceedings have been in private session. The Planning Tribunal has met on 584 days in public session, that is 77 days a year. Again the rest of its work has been done in private session, indeed many of the days both Tribunals were in public sessions some of their counsel were working simultaneously in private session.

So the whole basis on which the Tribunals have operated may have been unlawful.

Aside from that the authoritative comments of Adrian Hardiman on the conduct of the Planning Tribunal are themselves damning. He has described as "amazing" the assertion by Patricia Dillon SC counsel for the Tribunal about there being "no surprises" and, essentially, he found a persistent procedure operated by the Tribunal since it began unconstitutional.

The judgment raises serious questions about the legality of the conduct of both Tribunals since they started.