Independent TD Michael Lowry has secured permission to bring a High Court challenge aimed at preventing his trial before Dublin Circuit Court on alleged tax offences.
Mr Justice Seamus Noonan granted the former minister permission for judicial review after finding he had made out an arguable case on all grounds advanced.
The judge said there should be a speedy hearing of the judicial review, adjourned the matter for two weeks and placed a stay, pending further order, restraining the criminal trial proceeding.
Mr Lowry denies four charges he allegedly filed incorrect tax returns in 2003 and 2007. His trial was transferred from Co Tipperary to Dublin on the application of the DPP due to the numbers who have voted for him in Tipperary.
The TD claims his prosecution is “extraordinary” because, he argues, it concerns a payment he had both declared and paid.
Mr Lowry (60), of Glenreigh, Holycross, Co Tipperary, alleges he has no outstanding tax liability, is being treated unfairly and selectively and has been subject to prejudicial publicity and alleged wrongful release of taxpayer information into the public domain.
It is alleged there has been wrongful manipulation of the criminal justice process breaching his right to a fair trial. He claims the transfer of the trial to Dublin breaches his rights and amounts to him being punished for success as a politician in Tipperary.
Mr Lowry, represented by Patrick Treacy SC, also argues the trial should be halted because of media reports in relation to a handwritten note the TD sent to An Taoiseach Enda Kenny.
The note, given to the Taoiseach via an usher, asked Mr Kenny to consider reappointing Mr Lowry's former PR adviser Valerie O'Reilly to the board of the National Transport Authority. The story was published in the Sunday Independent last month and the note recommended Ms O'Reilly on grounds she was bright and intelligent "and not bad looking either".
Counsel said the manner in which the note made its way into the public domain, in advance of Mr Lowry’s trial, is prejudicial and amounts to “wrongful intermeddling in the criminal process”.
The media article was subject to much comment and made Mr Lowry look “sexist and derogatory towards women”, counsel said. It was prejudicial given that half the members of the Circuit Court jury, should the trial proceed, was likely to be made up of women.
The circumstances of how “parties in Dáil Eireann” provided the newspaper with the note is subject of a complaint by Mr Lowry to the Dáil’s Committee on Procedures and Privileges, counsel outlined.
The leaking of the note to the Sunday Independent newspaper was significant as it had been involved in a “concerted campaign” against Mr Lowry, he added.
Between February 2013 and May 2013, it ran a series of articles concerning the recordings known as the Lowry tapes which involved purported recorded conversations between the deputy and land agent Kevin Phelan, who in 2013 allegedly gave recordings to academic and former Sunday Independent journalist Dr Elaine Byrne, counsel said.
Before any articles concerning the tapes were published, Mr Phelan wrote to then Sunday Independent Editor Anne Harris saying he was unhappy about how the recordings were taken and copied, counsel said.
In seeking to have the materials handed to Dr Byrne destroyed, Mr Phelan said in his letter he could not confirm the accuracy of the copies and could not authorise its use, he added.
Counsel said Mr Phelan also emailed Dr Byrne stating the reason he sent the letter was because he had entered into an arrangement with a UK company, Pavillion Capital Partners Ltd, which arranges funding for litigation, and it had informed him the release of materials to Dr Byrne was not permitted under the terms of an agreement with Pavillion.
Counsel said Mr Phelan told Dr Byrne in the email, “at the end of the day, we all have the same target and are essentially on the same side.”
On the Friday before the first article was published, Dr Byrne made a statement to the Criminal Assets Bureau about the recordings in which she did not refer either to Pavillion’s role in the disclosure of material or Mr Phelan’s letter to the Sunday Independent, counsel said.
CAB did not know Mr Phelan was contracted to Pavillion or that the Bureau was receiving selected documentation and this disguised from CAB the commercial interests of Mr Phelan and Pavillion, he said.
The Sunday Independent articles about the ‘Lowry Tapes’ did not disclose to the public either Mr Phelan’s letter, where he said he could not confirm the recordings accuracy, or Pavillion’s involvement, were extremely damaging to Mr Lowry’s reputation and damaged any prospect of him receiving a fair trial, counsel argued.
The purported recordings, which were broadcast on TV3, are not being relied on as evidence in Mr Lowry’s trial but remain in the public domain which any juror can access, he said.
The application for leave for judicial review was made ex-parte (one side only represented). Lawyers for the DPP previously told the court they were not opposing the application for leave.
Mr Lowry's trial is listed for mention before Dublin Circuit Criminal Court tomorrow but, if the trial proceeds, it is not likely to be heard until late 2015 or early 2016.