2,348 pages, 14 years and a whole lot of idle gossip

Fri, Mar 25, 2011, 00:00

Moriarty verdict is less a judgment and more like the opening statement in the court of public opinion, a hearing that will continue for some time

ARE WE satisfied that, after 14 years of investigation and rumination, the Moriarty tribunal has delivered a five-million-character tweet?

Depending on whether we take Denis O’Brien’s estimate or the most conservative calculation, the tribunal is set to dip into the taxpayer’s pocket to the extent of between €30 and €60 per character, spacing not included.

We know what we know. This, in 16 characters, is what the tribunal report has told us. There is, it is true, a little more detail in its 2,348 pages, but that’s the essential gist. The conclusions are, in most instances, no more than the tabulation of suppositions and suspicions, assembled, often selectively and tendentiously, as though with a view to seeking a successful prosecution.

It is not really a judgment but more like the opening statement of the prosecution in the court of public opinion, a hearing that began last Tuesday and will continue for some time, though hopefully not for another 14 years. Indeed, it hardly seems appropriate to refer to the tribunal’s “findings”.

To apply such a description is to surrender to literalism and appearances: if it looks like a court, walks like a court and quacks like a court, then it probably is a court.

Some of the key threads of logic in the report are so fantastic as to beggar the belief that anyone could write them down and offer them for public scrutiny with any expectation that they would not be laughed out of court.

The unspoken elephant in this particular room is that the tribunal is playing to a public mood already primed with prejudice about politicians and businessmen. In the absence of this disposition of prejudice, it is difficult to imagine the Moriarty report being released in its present form.

Within its complex edifice of contention, there is a tent-pole reliance on what is already known about Michael Lowry – a calling in of public prejudice to carry the greater burden of the case. Indeed, as though fearing that case may fall short of the required weight, the report throws in a rhetorical comparison between Lowry and Charles Haughey.

In substantiation of its allegedly damning central conclusion in respect of the most serious charge – that the awarding of the phone licence to Esat Digifone resulted from an intervention by Lowry – the report utilises implicit “logic”.

This logic goes something like this: because Lowry was previously labelled a duck, it is reasonable to presume a whole lot of quacking went on between him and Denis O’Brien in the half-hour they spent together in Hartigan’s pub on September 17th, 1995. Say O’Brien met in a pub with another politician – say Enda Kenny or Joan Burton – who denied the allegations of impropriety as Lowry has. Would the tribunal have been so ready to string what purports to be a strand of coherent argument from the pole of public knowledge concerning Lowry’s character to the conclusion that O’Brien won the phone licence by dint of political chicanery? I doubt it.

Unless the conclusions of the tribunal can pass such a test, they can hardly be deemed to meet the standard of proof required to damn the reputation of one of Ireland’s most respected businessmen. To conclude that a particular meeting dealt with matters which 100 per cent of the participants insist were not discussed is to propose that every allegation comprises its own proof. This is not the “balance of probabilities”, but the elevation of suspicion to the level of hard evidence.

If the logic that saturates this report were to be deemed adequate to the jurisprudential needs of this society, we should not need courts at all, but could entrust the dispensation of justice to the nearest lounge bar or water cooler. Perhaps it is because I am not a lawyer, but it seems to me that such circular processes of reasoning as are evident in this report represent the antithesis of what a justice system is intended to offer a society.

The whole point of legal procedures, conducted at enormous cost to citizens and the public purse, is that they take us beyond the level of gossip, human prejudice, emotion and surmise.

I do not suggest that Denis O’Brien and Michael Lowry are angels. My point is that I had no way of knowing what had happened between them, and still do not. That is what I looked to the Moriarty tribunal to tell me. Now, I find that, in return for the several hundred euro of my taxes which have gone into the tribunal pot to pay for this inquiry (I “own” about one shortish word of the Moriarty report), I know at the end of a 14-year process no more than I might have gathered in the course of a social evening in the Horseshoe Bar of the Shelbourne Hotel, sometime around the middle of 1997.

I therefore presume both men innocent of any wrongdoing until otherwise proved.