Mahon issues defence of tribunal action

Only some of the corruption findings made by the planning tribunal against former Fianna Fáil minister Ray Burke are being withdrawn.

Tribunal chairman Mr Justice Alan Mahon has issued a lengthy "information statement" defending the actions of the tribunal and seeking to correct recent "inaccurate or incomplete" information in the media.

The payments still regarded by the tribunal as corrupt include £35,000 paid by concert promoter Oliver Barry to Burke and a total of £170,000 sterling in payments from builders Tom Brennan and Joseph McGowan and auctioneer John Finnegan to Burke.

In contrast, all adverse findings based on allegations made by the original whistleblower, retired building company executive James Gogarty, are being withdrawn.

Mr Justice Mahon says the tribunal's first chairman, Mr Justice Feargus Flood, conducted his investigations between 1997 and 2002 in accordance with procedures and practices "which he believed and understood were fair, appropriate and in compliance with legislation".

Information in statements was redacted to confine lines of inquiry to those relevant to the tribunal’s terms of reference. It was also done “in the interests of the efficient investigation of lengthy and complex investigations” and to avoid revealing the identity of people not immediately relevant to the tribunal’s work.

The practice was continued after new inquiries were started in 2002 and Mr Justice Flood retired in 2003, so that in 2005 parts of the statements and phone records of whistleblower Tom Gilmartin were redacted. This was challenged by developer Owen O'Callaghan, against whom Mr Gilmartin had made allegations. The Supreme Court decided in that year Mr Gilmartin's statements should be released to him in their entirety.

Witness statements

Mr Justice Mahon said the tribunal, having regard to the court’s decision, ensured Mr O’Callaghan and all other witnesses were provided with “full and unredacted copies” of witness statements. While the Supreme Court was concerned only with Mr Gilmartin, the tribunal applied its decision to all witnesses and altered its procedures in relation to its inquiries from 2002.

The tribunal did not revisit its early work and the statements of Mr Gogarty as it did not believe it was required to do so and was not legally entitled to reopen Mr Justice Flood’s modules of inquiry.

In 2010, businessman Joseph Murphy and his interests were successful in the Supreme Court in having findings of hindering and obstructing the inquiry quashed and were awarded costs before the inquiry. Mr Murphy based his case on the fact that the tribunal had withheld parts of Mr Gogarty's statements from him until prompted to release them by the O'Callaghan judgment. These contained unproven allegations against third parties and so called into question Mr Gogarty's credibility.

Entitled to costs

“The tribunal has now applied the benefit of that decision to a number of parties including

George Redmond

, Ray Burke, Oliver Barry,

James Stafford

,

Thomas Brennan

, Joseph McGowan, John Finnegan, and the Bailey interests. Those parties are now deemed entitled to costs which had previously been refused, and which they would have been entitled to in the absence of such hindrance and obstruction findings.”

Mr Justice Mahon said the tribunal was also withdrawing adverse findings, based on the evidence of Mr Gogarty, made by Mr Justice Flood in his second and third interim reports.

Those affected include Burke, Mr Redmond, Mr Murphy and his company JMSE and the Bailey interests (brothers Mick and Thomas Bailey).

"In relation to the Century Module and the Brennan and McGowan Module, adverse findings against Mr Burke, Oliver Barry, Mr Stafford, John Mulhern, Mr Brennan, Mr McGowan and Jack Foley remain in place and have not been withdrawn. It is not the case that Mr Justice Flood's second and third Interim Reports have been withdrawn in their entirety."

Mr Justice Mahon said nothing in the final report published in 2012, which includes the investigation into former taoiseach Bertie Ahern, is affected by the O'Callaghan or Murphy decisions.

“None of its adverse findings have been withdrawn or altered as a consequence of those decisions.”

Mr O’Callaghan is challenging some findings against him in the Court of Appeal.

The chairman said 305 costs orders had been made arising from the tribunal’s final report and just four awaited completion.

Some 24 of the orders are for reduced costs arising from findings of non-cooperation against witnesses. One person has successfully challenged an order for reduced costs (publican Charlie Chawke), while another lost his courts action (Councillor Tony Fox). No party referred to in the final report has been refused his/her entire costs and the majority has been awarded full costs.