In March the long awaited second and final report of the Moriarty Tribunal of Inquiry established in 1997 was published. The Tribunal’s terms of reference provided that it was to inquire into financial transactions involving Irish members of parliament (TDs), including former Taoiseach (Prime Minister) Charles Haughey and former Minister Michael Lowry. The first report, which was published in December 2006, dealt primarily with the investigations involving Mr Haughey. The second report focused on interactions between Mr Lowry and businessmen Denis O’Brien and Ben Dunne. In summary, the Tribunal found that Mr O’Brien made or facilitated payments to Mr Lowry, who imparted substantial information to Denis O'Brien which was of significant value and assistance to him in securing a mobile phone licence for his company, Esat Digifone. The Tribunal also found that in 1995 Mr Lowry unsuccessfully attempted to interfere in a rent arbitration process in favour of Mr Dunne.
It is believed that the report has been passed to the Director of Public Prosecutions (DPP) and the Revenue Commissioners. This begs the question as to what its evidential weight is in subsequent criminal proceedings and existing or contemplated civil proceedings.
Under the Tribunals of Inquiry (Evidence) Acts 1921 to 2004 and the doctrine of privilege against self-incrimination, witness evidence produced in a tribunal of inquiry cannot be used in subsequent criminal proceedings. In this regard, the Garda must carry out their own investigation in order to establish their own evidence before a file can be submitted to the DPP, who then decides whether prosecutions should be brought and what the charges should be.
The issue of admitting tribunal findings in subsequent civil proceedings was considered by Judge Irvine in the 2007 High Court decision of Director of Corporate Enforcement v Bailey & Anor (5). She held that the Director was entitled to use the tribunal report of the Flood (latterly Mahon) Tribunal as a source to assist him in finding admissible evidence to put before the court in disqualification proceedings, but was not entitled to produce to the court the report as proof of any facts allegedly found therein. Furthermore, the court could not take into account the opinion of the Chairperson of the tribunal regarding any wrongdoing for the purposes of the disqualification proceedings and was not entitled to admit the findings of the tribunal into evidence as corroboration of any wrongdoing allegedly put before the court. Judge Irvine also concluded that the court cannot attach any weight to any findings of the tribunal when reaching its conclusions in the disqualification proceedings. The Supreme Court recently dismissed the ODCE’s appeal of this aspect of the High Court decision (6). Mrs Justice Susan Denham gave the main judgment and concluded that decisions of tribunals are “sterile of legal effect” and devoid of legal consequence.
It would appear that the Moriarty report’s strongest evidential weight will be that it provides a useful roadmap in any subsequent civil or criminal proceedings that may ensue, albeit it cannot itself be used in such proceedings.