Questions raised by adopting “reasonably informed expression of opinion” as the Standard of Proof

 

The adoption by the Moriarty Tribunal of the “reasonably informed expression of opinion” as the applicable standard of proof raises some very pertinent questions for the administration of justice and fair process in Ireland.    There is a strong argument that this abandonment by the Tribunal of its fact-finding mandate in favour of the “reasonably informed expression of opinion” is a further example of what Supreme Court Justice Adrian Hardiman referred to as the “coarsening of legal standards” inherent in some of the tactics and methods employed by modern day Tribunals of Inquiry such as the Moriarty Tribunal.

 

A few of the questions raised by the adoption by the Tribunal of the “reasonably informed expression of opinion” as the standard of proof include:

  

• Was the Moriarty Tribunal entitled to issue “opinions” which were seriously prejudicial to the interests of various individuals where it plainly did not have the hard evidence to support actual findings of fact adverse to those individuals?

 

• Why did the Moriarty Tribunal abandon the settled rules of evidence applicable in Irish Court proceedings at its public sittings; such as the well settled rule against hearsay and rules in relation to the proper admission / proving of documents ?

 

• Why should the Tribunal have been entitled to express “opinions” rather than make “findings of fact” in relation to the second mobile phone licence process when it has been inquiring into this process since 2001 at the cost of tens of millions of Euro?  were those affected by the Tribunal’s report (and indeed the general public) not properly entitled to actual findings of facts based on the hard evidence presented?

 

• How could the Moriarty Tribunal condemn the licence process as having been improperly interfered with by Michael Lowry when it has not produced a single witness (out of the 75 individuals who have given evidence) who has given direct evidence of actual interference in the mobile phone licence process by the then Minister, Michael Lowry?

 

• There was no James Gogarty or Tom Gilmartin type character available to the Moriarty Tribunal as part of the second mobile phone licence inquiry- there was no smoking gun; there was no whistleblower.  Is this why the Tribunal moved away from “findings of fact” to “…reasonably informed expressions of opinion…”?