What was the Standard of Proof applied by the Moriarty Tribunal and what does this mean?
The standard of proof that was applied by the Moriarty Tribunal was defined by the Sole Member as the “reasonably informed expression of Opinion”. The Tribunal had, in essence, unilaterally ruled that is was not to be bound by the normal rules of procedure and evidence which must be adopted in Court proceedings and that it would not be required to reach “findings of fact” based on evidence properly presented and tested as in a Court process.
The making of findings of fact based on evidence properly presented and tested is the true raison d’etre of any Statutory Tribunal of Inquiry and has been accepted as such since the foundation of the Irish State. The Moriarty Tribunal deftly and quietly moved away from these accepted legal norms and in so doing granted onto itself a far greater degree of flexibility in terms of the conclusions that it could make than would otherwise have been the case. It sought refuge in expressing “opinions” rather than reaching findings of fact based on evidence. As was entirely evident in the Tribunal’s final report, the ultimate repercussions of such a novel stance are very far-reaching.
The definition of the Standard of Proof as applied by the Moriarty Tribunal was expressly set out by the Sole Member in his first report delivered in December 2006. (Report on “the Haughey modules”). At Chapter 1 of the Report entitled “Purpose and Composition of the Report”, the Sole Member addressed “Procedures Adopted by the Tribunal” commencing on Page 13. At page 21 at section 1.61, the Standard of Proof being applied by the Moriarty Tribunal was set out:
“1.60. One of the matters which required careful consideration in the course of Report preparation was the standard of proof appropriate to justify conclusions or findings that could be adverse to the reputation of persons involved, whether individuals or corporations. In its appraisal of this matter, it seemed to the Tribunal that the adoption of a criminal standard of proof was neither warranted nor realistic; as indicated earlier in this chapter, the conclusions in a report such as this are in no sense findings of either criminal or civil liability in law, and represent no more than what should be a reasoned and informed expression of opinion. Moreover, the Tribunal has on a number of occasions indicated that having regard to its inquisitorial, as opposed to its adversarial character, it would not be bound by rules of evidence or procedures designed for Court cases. In discharging its functions, rules, either for the admission of evidence or the burden of proof, evolved for the purpose of the administration of justice in criminal or civil proceedings, would inhibit and confine the functioning of the Tribunal…”
In essence, the Tribunal ruled that it was abandoning the normal rules of evidence and procedure that any person would enjoy in any Irish Court proceeding because these rules and procedures would “…inhibit and confine… the Tribunal…”. In simple terms, the Tribunal did not want to be shackled or inhibited in such a manner. It wanted to get on with issuing its final report based on its “opinions” without any such hindrances or legal niceties such as the duty to find facts based on the rules of evidence. The Tribunal allowed itself to operate freely, in other words, fast and loose.
The application of this standard of proof was challenged by submissions made to the Tribunal in July 2007 and again in September 2008. Those submissions were ruled upon by the Sole Member on 8 November 2008[1]. The submissions made on behalf of Denis O’Brien to the Tribunal in September 2008 can be found at the following link:
Submissions on Standard of Proof and Evidence
In response to those submissions made to the Tribunal by various interested parties, the Sole Member steadfastly refused to deviate from the Standard that he had articulated at para 1.61 of the Haughey Report. This was despite that fact that Mr. Charles Haughey was deceased by the time the Moriarty Tribunal published its Final Report Part One in December 2006. Accordingly, the “reasonably informed expression of opinion” (as distinct from findings of fact) was the standard of proof applied by the Moriarty Tribunal in its final report part two. This final report was merely the Tribunal’s opinions; it did not contain facts as properly understood. This was despite the enormous repercussions that those opinions as contained in the report hadon numerous persons; as well as on the reputation of the Irish State in general.
[1] http://www.moriarty-tribunal.ie/asp/detail.asp?ObjectID=310&Mode=0&RecordID=489
