Tribunal has committed a grave injustice

Fri, Mar 30, 2012, 01:00

THERE ARE reasons why the judicial systems of human societies have developed scrupulous procedures to ensure that, if someone is indicted by a court, and incurs a punishment or loss of reputation as a result, the process by which this decision has been arrived at has applied every conceivable test to the evidence.

This is why, in conventional proceedings, a defendant is not obliged to answer questions, and why no inference can be drawn from such a refusal. It is the reason for the principle of “beyond reasonable doubt”, an exacting standard that protects against summary verdicts while still leaving room for commonsensical reckoning.

Tribunals do not operate like this. They merely collate evidence, and jump to the most obvious inference. This can be useful for obtaining a general sense of events with a view to achieving a broad understanding. But an awareness of the reasons for this latitude should prompt caution when particular individuals and their reputations are at stake. This is precisely why (other than in relation to the allocation of costs, which is controversial in its own right) our various recent tribunals were not extended powers to punish individuals, and also why the evidence gathered by a tribunal cannot be adopted to pursue a prosecution.

But the truth of the matter is that, through the interaction of a quasi-judicial process with media-stoked popular opinion, the Mahon tribunal has been enabled to impose crippling penalties on individuals who have been adversely judged in its final report. To attach the word “corrupt” to the reputation of a long-serving public representative – and not merely rhetorically but with the weight provided by the signature of a judge – should be a deeply solemn matter.

South Dublin Fianna Fáil county councillor John Hannon has now resigned from Fianna Fáil, the party he has served as a councillor since first being elected in 1985. His career is now ended in black disgrace arising from the Mahon report. I have scrutinised the report as it relates to Hannon and formed the view that this is a grave injustice.

On page 1755 the report states: “Cllr Hannon told the tribunal that in November 1992, during the course of the general election campaign, he received an unsolicited payment in cash from Mr Dunlop. Cllr Hannon said that Mr Dunlop telephoned him and made an appointment to visit him in his home, without explaining the purpose of his visit. Mr Dunlop called to Cllr Hannon in his home and handed him an envelope in which there was either £500 or £1,000 in cash.

“Mr Dunlop claimed to have no recollection of the payment, or of ever visiting Cllr Hannon in his home, or of even knowing his address.

“Cllr Hannon said that he viewed the payment of either £500 or £1,000 from Mr Dunlop as a political donation, and, according to his letter to the tribunal of 2 May 2000, it had ‘nothing whatsoever to do with any vote I cast as a council member of Dublin Co Council at any time’.

“In spite of Mr Dunlop’s denial of making any such payment to Cllr Hannon, the tribunal was satisfied from Cllr Hannon’s own evidence that he had received either IR£500 or IR£1,000 from Mr Dunlop in November 1992. While there was no evidence to suggest that the payment was in any way directly connected to Cllr Hannon’s support within the county council for any particular rezoning project, the tribunal believed that Cllr Hannon must have known, at the time he received such a payment from Mr Dunlop, that this payment was given in the context of Mr Dunlop’s ongoing involvement in a number of rezoning issues, albeit in the course of an election campaign. In those circumstances, the payment was corrupt.”

Does this make any sense? There was no evidence against John Hannon other than what he himself told the tribunal. Clearly, he was not seeking to indict himself, nor was he accused by anyone else. The tribunal could find no evidence of any wrongdoing of the kind it was established to uncover, and yet it decided the payment to Hannon was corrupt. The word “corrupt” is now attached to John Hannon’s name as though superglued to it.

Political donations have long been, and remain, an accepted and legal element of political life. Back in 1992, Frank Dunlop was a senior official in Fianna Fáil and in a position to disburse party funds to whomever he wished. The election campaign, which was ongoing at the time, provided a particular context for such payments. The tribunal obtained no evidence as to the legitimacy of the donation Frank Dunlop gave to John Hannon, other than Hannon’s own insistence that it was a political donation. He made no attempt to hide anything.

And yet, summarising the episode, the tribunal polished off an extremely dubious line of logic with the word “corrupt”. The only reasonable inference from the tribunal’s characterisation of the episode is that Hannon ought to have known Dunlop was corrupt, and so applied the understandings of 2012 to an episode that occurred 20 years ago.