Why was the Standard of Proof adopted by the Moriarty Tribunal so controversial?

 

Not one of the 17 civil servants actually involved in the process leading to the awarding of the second mobile phone licence to Esat Digifone gave any evidence that their work was interfered with in any way by the then Minister, Michael  Lowry.  In addition to this, sworn evidence has been given to the Tribunal by 5 former Government Ministers, 1 Ex Taoiseach (John Bruton) and 1 Senior European Union Official.   Not one of those Ministers / Officials gave any evidence before the Tribunal of actual interference in the licence competition process on the part of Michael Lowry. Case closed in favour of upholding the intergity of the licence process; or so it seemed? Unfortunately, the Tribunal did not see it that way.  It had a completely different “opinion” to all of those  who were actually involved in the process at the time.

 

By moving the goalposts and creating the hitherto unknown (in Irish law at least) “reasonably informed expression of opinion”  as the standard of proof applicable, the Moriarty Tribunal  unilaterally unburdened itself of the task of making actual findings of fact based on evidence properly presented and tested before the Tribunal.    It had new rules; fast and loose was now the order of the day.    By changing the standard of proof applicable, the Moriarty Tribunal allowed itself to issue conclusions in the form of “opinions” in its final report that it would not otherwise have been able to do.

 

As such, even though not a single person who was actually involved in conducting the second mobile phone licence process had given any direct evidence of interference in that process by Michael Lowry, the Tribunal believed that it can issue “reasonably informed expressions of opinion” which were adverse to the interests and reputations of the civil servants involved (and indeed adverse to a great many others) and which flew in the face of this unanimous evidence supporting the licence process. 

 

In simple terms, facts require evidence; reasonably informed expressions of opinion do not.   In reaching opinions, you can get around the evidence.  In reaching facts, you cannot.