The Supreme Court has unanimously upheld a decision to impose a seven-day prison sentence and £5,000 fine on Dublin West TD Liam Lawlor for failing to provide documents sought by the Flood tribunal.
Not only was the sentence and fine appropriate, an additional seven-day term and "significantly increased" fine would neither be excessive nor disproportionate, the Chief Justice, Mr Justice Keane, declared.
Mr Justice Fennelly remarked that one affidavit sworn by Lawlor was "so incomplete as to entail deliberate deception".
However, the five-judge court agreed to allow Lawlor begin the sentence on January 2nd, rather than this month, so that the TD and his wife could travel to New York next week to visit their son, Niall, whose wife is expecting her second baby shortly. It directed Lawlor to pay the fine by December 31st.
After the court rejected the TD's appeal against the High Court judgment imposing the prison sentence and fine yesterday morning, Mr John Trainor SC, for Lawlor, said his client and his wife were booked to go to the US on December 20th, returning on December 28th, to stay with their son and daughter-in-law whose apartment was just two blocks from the World Trade Centre, destroyed in the September 11th terrorist attacks. The couple had only returned to their apartment last weekend.
Mr Trainor said the Dβil would be in recess between December 14th and January 30th. Lawlor was asking that the prison sentence not commence until some time in January.
The Supreme Court adjourned until 2 p.m. to allow lawyers consider the lengthy judgments it had delivered. When it resumed, Mr Justice Keane said the court would defer execution of the order to January 2nd, and the issue of costs would be dealt with on Wednesday.
The Flood tribunal made an order in June 2000 that Lawlor make discovery on oath and produce all documents and records in his possession or power relating to any accounts held in any financial institution here or abroad in his own name or for his benefit.
The order also related to documents and records in Lawlor's possession or power relating to any interest held by him in any company and relating to the tax amnesty.
In January, Lawlor spent seven days in prison and was fined £10,000, with costs estimated at £200,000, for failing to provide the tribunal with the documentation it sought.
On July 31st, Mr Justice Smyth imposed the second seven-day sentence and a £5,000 fine. A few days later, the Supreme Court put a stay on the sentence pending the appeal.
In his judgment yesterday, the Chief Justice said: "I would not consider the imposition of a further week's sentence of imprisonment and a fine of £5,000 - or, indeed, a significantly increased penalty - excessive or disproportionate."
In a separate judgment, Mr Justice Fennelly said he had concluded that, on an issue described as relating to the Coolamber lands (in Lucan) or Navona Ltd (an Isle of Man company in whose name the property was to be purchased), Lawlor had "so patently defied the order of the court and, more particularly, has sworn at least one affidavit that is demonstrably so incomplete as to entail deliberate deception", that for this reason alone the appeal should be dismissed.
The Chief Justice said the High Court order of October 2000 extended to documents and records relating to two periods - June 1974 to June 1977, and June 1977 to the date of the order. During those periods Lawlor appeared to have operated no less than 110 bank accounts in various countries and was engaged in a wide range of business activities here and abroad.
It appeared Lawlor wrote to 272 individuals, firms, companies and banks seeking documents. Following the High Court order of January 15th, Lawlor had given the tribunal 157 folders of documents, and affidavits were filed.
Mr Justice Keane said there were three matters where the High Court judge made express findings of non-compliance: documents relating to a land transaction at Coolamber; documents relating to a bank account in Liechtensteinische Landesbank, Liechtenstein; and a failure to follow an express provision of a court order to adhere to a form of affidavit prescribed by court rules.
The affidavit of discovery did not comply with the requirements since it did not refer to any of the documents relevant to Lawlor's interest in the Coolamber lands, although he later conceded that such documents had been in his possession.
Nor, continued the Chief Justice, could there be the slightest doubt as to the significance of that deficiency in Lawlor's discovery.
To put it at its mildest, Lawlor's claim on oath that "I was not involved in the purchase or ownership nor did I have any interest in the (Coolamber) lands, either before or subsequent to their acquisition", was less than candid. That of itself would render this a serious and conscious failure by Lawlor to comply with his discovery obligations.
In the context of the finding (not contested by Lawlor) of the trial judge in January that Lawlor had already been in contempt of the High Court orders "in a deliberate and most serious manner" meriting a sentence of three months, his further failure to comply with his discovery obligation was rendered even more serious.
The Chief Justice said he was satisfied that, in regard to three matters, it was established Lawlor had failed to comply with the relevant orders of the tribunal and the High Court.
While none of the instances of non-compliance could properly be characterised as technical or minor, the failure to make any discovery of the documents relating to the Coolamber lands was particularly serious.
There had been no error in principle by Mr Justice Smyth, the Chief Justice found. Having correctly found that in three respects, one of them of a particularly serious character, Lawlor had failed to comply with his discovery obligations, the judge was entitled to reactivate as much of the custodial sentence as was appropriate.
Mr Justice Fennelly said certain documents and evidence about them given to the tribunal clearly suggested that Lawlor negotiated an agreement or arrangement with Mr Larry Goodman for the purchase of the Coolamber lands.
In an affidavit of July 20th, he no longer denied he was involved in the purchase of the lands. His earlier statement was more than concise. It was "untrue".
In circumstances where Lawlor had already been found in contempt, had a sentence of three months imposed on him and had served one week in prison as well as having been ordered to make further discovery, it was extraordinary that he should make a statement of non-involvement in a transaction which he knew to be of interest to the tribunal when quite obviously he was, at the least, actively concerned.
Given his stance that he had no involvement at all with the lands, Lawlor clearly could not address correctly the question of what relevant documents were or had been in his possession. Mr Justice Fennelly concluded: "I have concentrated on this one aspect of the contempt because it is so egregious. I am satisfied that his failure to respect the order of the court in this one respect alone justified the imposition on him of the further period of imprisonment and the fine imposed by the learned trial judge."
The full text of the Supreme Court judgment is available on The Irish Times website at: www.ireland.com