Next Moriarty report focus on O'Brien, Lowry

Business Opinion:The entrepreneur Denis O'Brien probably paid closer attention than most to the first report of the chairman of the Moriarty tribunal, Mr Justice Michael Moriarty.

Mr O'Brien is likely to have been particularly interested in an aspect of the rather technical first chapter, called the Purpose and Composition of the Report. In this chapter Mr Justice Moriarty writes about how he deals with the issue of what standard of proof is required for him to make a finding, and it illustrates why anyone would be concerned about becoming the focus of a tribunal's attention.

The first report concerned payments to the late Charles Haughey and the second, expected to be published around the end of this year, will concern payments to the former communications minister, Michael Lowry.

Mr O'Brien comes into the frame because the tribunal has investigated financial transactions that may link Mr O'Brien to Mr Lowry, and because of the massive "tribunal within a tribunal" into the awarding of the State's second mobile phone licence to Mr O'Brien's Esat Digifone at a time when Mr Lowry was the minister in charge of telecoms.

Mr O'Brien has said transactions involving Mr Lowry and property in the UK, which have been investigated by the tribunal, had nothing to do with him. His accountant, Aidan Phelan, became friendly with Mr Lowry and became involved in the UK deals, but the money involved was Mr Phelan's and not Mr O'Brien's, the telecoms entrepreneur has said.

The tribunal has also looked at £150,000 (€223,000) which went from one of Mr O'Brien's accounts to an account in the Isle of Man, from there to an account in Jersey belonging to the late Smurfit executive, David Austin, and from there to an account in the Isle of Man belonging to Mr Lowry. The payment was returned by Mr Lowry to Mr Austin on the day the McCracken tribunal was established in early 1997.

The transfers happened soon after the licence award. Some time afterwards Mr O'Brien told Esat executive Barry Moloney that he'd tried to make a payment to Mr Lowry but the payment had "got stuck" with an intermediary. Mr O'Brien later told his Esat colleagues that this was a spoof designed to get Mr Moloney to release some funds Mr O'Brien wanted released. He repeated this in his evidence to the tribunal.

Mr O'Brien told the tribunal his payment to Mr Austin was in return for a house in Spain, and that he knew nothing of the funds being moved on to Mr Lowry. Mr Lowry has said the money was a loan from Mr Austin, which he had intended to use on the renovation of a house in Blackrock, Co Dublin.

Mr Justice Moriarty, in an interim ruling in September of 2005, has said the tribunal will consider if the UK property transactions "were intended as a substitution for the payment that got stuck".

The UK property deals that have been considered by the tribunal include one that is significantly larger than the others. Mr O'Brien has told the tribunal that this deal, the Doncaster football stadium deal, unlike the others, was his but did not involve Mr Lowry. Mr Lowry has said he was not involved. The tribunal may yet hold further hearings on this matter.

The tribunal within a tribunal has found seven "apparent deviations" from the protocol by which Mr Lowry was to be excluded from the selection of the winning bid for the mobile phone licence. These may indicate the extent to which the process was capable of being "penetrated" by Mr Lowry, the judge said in his interim ruling.

The tribunal's exhaustive examination of the licence assessment process has uncovered no "smoking gun", no evidence of corruption so strong that nothing but such a conclusion could be viewed as correct. Nothing even approaching that has been found.

But the tribunal report on Mr Haughey makes clear that no such level of standard of proof is required by a tribunal. As the judge states: "The conclusions in a report such as this are in no sense findings of either criminal or civil liability in law, and represent no more than what should be a reasoned and informed expression of opinion."

He makes clear the tribunal would be too confined if it could only express findings or conclusions if "so convinced of them that no alternative view could be correct".

To say that all this must be worrying to Mr O'Brien is not to indicate any view on the likely findings of the tribunal. It is simply to state that he is not protected to the extent he would be were he and Mr Lowry before a court. Tribunals are not bound by the rule that a party is innocent unless found guilty by way of a demanding standard of proof. They can state that they are not making a finding one way or the other.

This does not mean that tribunals should not exist. They provide a useful service, providing a mechanism for public examination of matters that might otherwise contribute to ongoing rumour and loss of trust in society's structures. That said, they're a rough place to be if you get into their maws.

A final point: The consortium that came second in the competition, Persona, has stated it intends to sue the State for a huge figure no matter what the tribunal finds.

However, any case it may take will involve standards of proof that do not apply to Mr Justice Moriarty and his tribunal.