What do the “opinions” in the Tribunal’s final report actually mean?
What do the conclusions of the Moriarty Tribunal’s final report actually mean? The simple answer to this is that these conclusions represent no more than mere “expressions of opinion” on the part of the Tribunal itself – opinions; not facts. The Moriarty Tribunal’s report has no legal effect or status whatsoever.
The definitive decision in Ireland in relation to the status of Tribunals of Inquiry such as the Moriarty Tribunal is the decision delivered by the Supreme Court in the matter of Bovale Developments.
This unanimous Suprem Court decision confirmed definitively that the findings of the Moriarty Tribunal are merely “opinions” and are completely “sterile of legal effect”. Moreover, the Tribunal’s opinions cannot be relied upon or adduced as evidence in any legal process (civil or criminal)
Below are the three written judgments given by the Supreme Court in the matter of Bovale Developments. Trenchant criticisms of the modus operandi of modern day Tribunals of Inquiry (expressly including and referencing the Moriarty Tribunal) are to be found with particular emphasis in the decision of Mr. Justice Hardiman.
Decision of Mrs. Justice Denham
Decision of Mr. Justice Hardiman
Decision of Mr. Justice Fennelly
Mr. Justice Finnegan and Mrs. Justice Macken concurred with the decision of Mrs. Justice Denham. As such the decision of the 5-member Court was unanimous in rejecting the proposition advanced by the the Office of the Director of Corporate Enforcement that findings / opinions as expressed in a report as issued by a Tribunal of Inquiry (such as the Moriarty Tribunal) could be relied upon as evidence in any subsequent legal proceedings or process.
Some of the key extracts from the decisions of the Supreme Court are set out below:
Mr. Justice Hardiman – Page 8 (Moriarty Tribunal specifically referenced)
“The duration of some modern tribunals is nothing less than appalling: a recent tribunal has ended after about thirteen years and another seems likely to exceed even this enormous total. As a result, the expense of the participation in a tribunal of inquiry is nothing less than grotesque, beyond the means even of individuals or corporations who would normally be considered rich. Furthermore, Tribunals have now taken to sitting for very long periods in private so that the material which they gather is normally known only to themselves, except on these all too frequent occasions when portion of the material is leaked. This accumulation of material in secret has on a number of occasions created major injustice where material damaging to the account of an accusing witness has been quite deliberately withheld from the parties whom he accuses”.
Mrs. Justice Denham
Para 35:
“…the finding of a tribunal forms no part of the material a court can rely upon, and further …. it cannot be used as a weapon of attack or defence by a litigant when the same matter is before a court”
Para 37:
“… the Tribunal of Inquiry is “not imposing any liabilities or affecting any rights”
“… its conclusions have merely the status of opinion…”
“…this opinion is devoid of legal consequences…”
“…its findings are “sterile of legal effect…”
“…its purpose is “merely” to inquire and report…”
“…A Tribunal of Inquiry is “a simple fact-finding-operation…”
“…The Tribunal has no power to inflict a penalty and its determinations cannot “form any basis for the punishment by any other authority of that person…”
“…Its function is to “make a finding of fact, in effect, in vacuo, and to report it to the Legislature…”
This Supreme Court decision arose from an appeal / cross appeal from the decision of Ms. Justice Mary Irvine in the High Court in the matter of Director of Corporate Enforcement v Bailey [2007] IEHC 365.
In that case Irvine J. rejected the argument that the Director of Corporate Enforcement would be able to rely on the findings of the Flood Tribunal in proceedings to restrict the Respondents from acting as company directors. Ms. Justice Irvine stated:
“Following the line of the aforementioned authorities, it is clear that the applicant may well decide to use the Tribunal report as a source to assist him in finding admissible evidence to put before the Court in these proceedings. What the applicant is not entitled to do is to produce to this Court the report of the Tribunal as proof of any facts allegedly found therein. Neither can the Court take into account the opinion of the Chairperson of the Tribunal regarding any wrongdoing on the part of the respondents for the purposes of these s. 160 proceedings. Further, the Court is not entitled to admit the findings of the tribunal into evidence as corroboration of any wrongdoing allegedly put before the Court by Mr. Lacy from his own investigations. Finally, the Court cannot attach any weight to any findings of the Tribunal when reaching its conclusions in this action.”
This complete lack of legal effect of the Tribunal’s conclusions reflects the fact that a Tribunal of Inquiry does not follow the rules of evidence or procedure that one would find in any Court process; nor does a Tribunal follow the normal standards of proof applicable. For this reason, the conclusions of the Moriarty Tribunal have no status in law and are not entertained by the Courts. The Tribunal’s conclusions are opinions; they are not facts, they cannot be represented as such and they cannot be adduced as such before the Courts. It is worth considering how this situation developed and what this actually means for the parties affected by the Moriarty Tribunal’s final report.
