Social Democrats TD Catherine Murphy will not appear at the Siteserv inquiry as she fears she will be forced to reveal the sources of her information about businessman Denis O'Brien's finances, The Irish Times has learned.
In a 10-page letter to the Cregan commission, parliamentary lawyers acting on Ms Murphy’s behalf argue that if she were to attend, she would be cross-examined by lawyers acting for other witnesses on “the source or sources of information” she relied upon when making statements about Mr O’Brien and the deal that saw him buy infrastructure company Siteserv.
“The commission is unable to afford any reassurance to Deputy Murphy that such cross-examination will not be permitted or that she will not be required to answer the questions put to her in the course of such cross-examination,” the letter, seen by The Irish Times, states.
The commission was established in 2015 to examine transactions that led to a loss for the State-owned Irish Bank Resolution Corporation (IBRC) of €10 million or more. The first module of the commission is specifically focused on the Siteserv transaction, which saw €114.5 million owed by the company to IBRC written off before it was sold to a company controlled by Mr O'Brien.
While the commission has given an undertaking that the sole member – Mr Justice Brian Cregan – will not directly question the Social Democrats co-leader about her sources, it appears that it has not been able to provide the same guarantee regarding questioning by lawyers for other witnesses.
The letter cites several examples drawn from the ongoing work of the commission where lawyers suggest Ms Murphy can be examined as to the sources of her information should she appear before it. These include statements made by counsel for three former IBRC bankers – Peter Rossiter, Tom Hunerson and Richard Woodhouse – as well as counsel for Neil Ryan, the former Department of Finance official who has given evidence to the inquiry.
In the letter, the office of the parliamentary legal adviser argues that if Ms Murphy was even required to reveal the identity of those who had not given her information or documents, it could, by a process of elimination, reveal her sources.
The letter also raises several complex legal concerns around the constitutional protection given to statements made in the Dáil. It addresses the argument, seemingly raised during the commission’s proceedings, that Ms Murphy could waive the protection offered to her by Dáil privilege, and in fact may have done so already by submitting a dossier to the commission.
It argues that it may not be legally possible, in fact, to waive such privilege, and warns that were it so, the ability of parliamentarians to raise issues brought to their attention by members of the public would be severely curtailed.
Mr Justice Cregan originally directed Ms Murphy to appear at the commission in May. She indicated that she would but that date has since passed and the commission has indicated it will issue a further direction.
The parliamentary lawyer’s letter states that Ms Murphy will not be attending, and says there “has been a continuous shifting of the commission’s position as regards its legal entitlement to and/or intention to call Deputy Murphy as a witness”.
The commission has suffered several setbacks since its inception. It was initially instructed to complete its work by the end of 2015. However, it found its progress frustrated by its governing legislation, which needed to be amended. It has been handed several deadline extensions, most recently after it delivered its sixth interim report. Taoiseach Leo Varadkar this year approved a 15-month extension to its work to the end of next March.