Court dismisses challenge by Hazel Lawlor

A FIVE-judge Supreme Court has unanimously dismissed a legal challenge by the widow of the late Liam Lawlor TD to procedures adopted by the Mahon tribunal towards her and her late husband.

Hazel Lawlor had sought to prevent the tribunal making serious findings of misconduct against either herself and her husband unless these were made according to the criminal standard of proof – beyond reasonable doubt.

She also sought orders requiring the tribunal to fund “effective” legal representation for her.

Mr Lawlor, who died in a car crash in Moscow in 2005, was involved in several modules of the tribunal arising from claims by Frank Dunlop, Tom Gilmartin and others that he had assisted in the rezoning of lands at Carrickmines and was a key strategist in the Arlington/Quarryvale projects.

Ms Lawlor was granted limited representation by tribunal chairman Judge Alan Mahon in November 2005 and is a witness at the Quarryvale II module with her involvement limited to lodgements made to her personal accounts between 1991 and 1995.

In a reserved judgment delivered yesterday by the Chief Justice, Mr Justice John Murray, the Supreme Court dismissed all grounds of Ms Lawlor’s appeal against the High Court’s refusal to grant her the orders sought.

Since a Supreme Court decision in 1992, it was accepted that a tribunal was not involved in the administration of justice as it had no jurisdiction to impose a penalty or punishment on any person but was a simple fact-finding operation, reporting to the legislature, the Chief Justice said.

Tribunals performed “a unique role” in Irish public life and derived their authority and existence from resolutions of the Oireachtas. This tribunal was constituted to inquire urgently into allegations that corrupt acts had occurred in relation to the process of granting planning permission in the Dublin area, he said.

Given the nature and wide ambit of the tribunal’s terms of reference, Mr Justice Murray added, it could not be taken its inquiries would be of modest duration and the claims by Ms Lawlor, including concerns of reputational damage as a result of delays between when allegations were made and when they might be rebutted, had to be seen against this backdrop.

Such delays were a feature of a public inquisitorial process, were difficult to avoid and could only be justified by reference to the critical requirement that matters of public importance and concern be properly investigated.

The legislation providing for tribunals had survived constitutional scrutiny, he said. The courts had also stressed the obligations of tribunals to apply fair procedures and trench on individual rights as little as possible and had acknowledged the considerable reputational consequences which can flow from allegations at tribunals.

While persons being inquired into by a tribunal were never charged with any offence and were not on trial, this could not take away from the fact adverse findings of grave wrongdoing could have devastating consequences for a person’s reputation, the Chief Justice noted.

It was claimed adverse reputational consequences were actually or potentially present and were exacerbated because Mr Lawlor had died. In that context, it was argued the criminal standard of proof should apply to any adverse findings that might be made by the tribunal about Mr Lawlor.

The Chief Justice said such a standard of proof has never been mandated by the Supreme Court for any tribunal of inquiry and the tribunal was entitled to reach findings on the basis of the civil standard of proof – the balance of probabilities.

A finding relating to a serious matter which may involve reputational damage must be proportionate to the evidence upon which it is based and findings of grave wrongdoing should in principle be based on cogent evidence, he said.

Dismissing Ms Lawlor’s claim that the tribunal was required to fund “effective” legal representation for her, the Chief Justice said a tribunal only has power to make any order relating to costs when findings have actually been made by it.

The law established, in criminal cases, a right for accused persons to be provided with legal representation but the tribunal was not engaged in criminal proceedings, he added.

He noted Ms Lawlor had advanced no evidence to show she was unable to defend her position before the tribunal without having her costs paid in advance. No evidence of her means or the value of her late husband’s estate had been given.