Supreme Court dismisses appeal against Tribunal of Inquiry's decision to proceed with public hearings on football club purchase.

THE SUPREME COURT

Appeal No: 370/2005

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Between /

Denis O’Brien

Applicant/Appellant

and

The Hon. Mr. Justice Michael Moriarty (The Sole Member of the Tribunal of Inquiry into payments to Messrs Charles

Haughey and Michael Lowry)

Respondent

Judgment delivered the 16th day of February, 2006 by Denham J.

1. A feature of public life in Ireland over the past two decades has been the establishment of Tribunals of Inquiry. There has been a

consequent stream of litigation as people have sought orders, requesting the courts to intervene in the tribunal process. This is such

a case. Denis O’Brien, the applicant/appellant, hereinafter referred to as the applicant, brought a motion, dated the 27th day of June

2005, to the High Court seeking an order of Certiorari quashing the decision of The Hon. Mr. Justice Moriarty, the sole member of the

Tribunal of Inquiry into payments to Messrs. Charles Haughey and Michael Lowry, (hereinafter referred to as ‘the Tribunal’), to

proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club and the purported connection of Michael

Lowry to the said purchase. The applicant sought also a permanent injunction restraining the Tribunal from proceeding to hold public

hearings in respect of the Doncaster Rovers Football Club transaction.

2. The background facts as to the establishment of the Tribunal are well known and have been set out in previous judgments.

However, they are relevant to the decision in this case and so I will restate them for ease of reference.

2.1 The Tribunal was established by resolution of Dáil Éireann on the 11th day of September, 1997, and by resolution of Seanad

Éireann on 18th day of September, 1997.

2.2 It was resolved that a Tribunal be set up under the Tribunals of Inquiry (Evidence) Act, 1921, as amended, and the Tribunals of

Inquiry (Evidence) (Amendment) Act, 1979, to inquire urgently into and to report to the Clerk of the Dáil, and make such findings and

recommendations as it sees fit, in relation to definite matters of urgent public importance, which were specified.

2.3 The specified matters relevant to this motion include the following:

“e. Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry (whether or not used to discharge monies

or debts due by Mr. Michael Lowry or due by any company with which he was associated or due by any connected person to Mr.

Michael Lowry within the meaning of the Ethics in Pubic Office Act, 1995 or discharged at his direction), during any period when he

held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with

any public office held by him or had the potential to influence the discharge of such office.

f. The source of any money held in the Bank of Ireland, Thurles branch, Thurles, Co. Tipperary, the Allied Irish Bank in the Channel

Islands, the Allied Irish Banks, Dame Street, Dublin, the Bank of Ireland (I.O.M.) Limited in the Isle of Man, the Irish Permanent Building

Society, Patrick Street branch, Cork or Rea Brothers (Isle of Man) Limited, in accounts for the benefit or in the name of Mr. Lowry or

any other person who holds or has held Ministerial office or in any other bank accounts discovered by the Tribunal to be for the

benefit or in the name of Mr. Lowry or for the benefit or in the name of a connected person within the meaning of the Ethics in Public

Office Act, 1995, or for the benefit or in the name of any company owned or controlled by Mr. Lowry.

g. Whether Mr. Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any

person making a payment referred to in paragraph (e) or any person who was the source of any money referred to in paragraph (f) or

on any other person in return for such payments being make or procured or directed any other person to do such act or make such

decision.

h. Whether any payment was made from money held in any of the bank accounts referred to at (f) to any person who holds or has

held public office.

i. Whether any holder of public office for whose benefit money was held in any of the accounts referred to at (b) or (f) did any act, in

the course of his or her public office, to confer any benefit on any person who was the source of that money, or directed any person

to do such an act.”

2.4 ‘Payment’ was defined as including money and any benefit in kind; and the payment to any person includes a payment to a

‘connected person’ within the meaning of the Ethics in Public Office Act, 1995.

2.5 A ‘connected person’ is defined in s. 2(2) of the Ethics in Public Office Act, 1995 as:

“(i) a person is connected with an individual if that person is a relative of the individual,

(ii) a person, in his or her capacity as a trustee of a trust, is connected with an individual who or any of whose children or as

respects whom any body corporate which he or she controls is a beneficiary of the trust,

(iii) a person is connected with any person with whom he or she is in partnership,

(iv) a company is connected with another person if that person has control of it or if that person and persons connected with that

person together have control of it,

(v) any two or more persons acting together to secure or exercise control of a company shall be treated in relation to that company

as connected with one another and with any person acting on the directions of any of them to secure or exercise control of the

company.”

2.6 The Tribunal was requested to carry out its inquiries consistent with the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 and

in the following manner:

“i. To carry out such investigations as it thinks fit using all the powers conferred on it under the Acts (including, where appropriate,

the power to conduct its proceedings in private), in order to determine whether sufficient evidence exists in relation to any of the

matters referred to above to warrant proceeding to a full pubic inquiry in relation to such matters,

ii. To inquire fully into matters referred to above in relation to which such evidence may be found to exist, and to report to the Clerk

of the Dáil thereupon,

iii. In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a full public inquiry,

to report that fact to the Clerk of the Dáil and to report in such a manner as the Tribunal thinks appropriate, on the steps taken by

the Tribunal to determine what evidence, if any, existed.. . . ”.

3. The applicant’s application was refused by the High Court on the 24th day of August, 2005. There were two issues before the High

Court which are now before this Court on appeal: (a) the sufficiency of evidence upon which to proceed to a public hearing, and (b)

the temporal issue.

The High Court (Abbott J.) held that there was sufficient evidence to enable the Tribunal proceed to public hearing, not in the sense

of the term of art understood in the courts but in the sense of giving cause for further inquiry. The learned trial judge was satisfied

that the In Re Haughey [1971] I.R. 217 rights of any person in respect of whom an adverse conclusion might be made would be well

safeguarded.

As to the temporal issue, the High Court was of the view that the Tribunal would, on its terms of reference, be entitled to inquire into

payments relating to a transaction which straddles the date upon which the Tribunal was appointed and the terms of reference fixed.

Reliance was placed on the meaning of ‘payment’ as including ‘money and any benefit in kind’ and that the payment to any person

includes a payment to a ‘connected person’ within the meaning of the Ethics and Public Office Act, 1995. The learned trial judge was

of the view that it would be an unduly restrictive interpretation of ‘benefit in kind’ to exclude the benefit of a contract or an

arrangement where the contract or arrangement might have been made prior to the appointment of the Tribunal and the fixing of its

terms of reference, but the payment, performance or execution of the arrangement or contract, could, would or might take place

after such appointment and fixing of terms of reference. The learned High Court judge was of the opinion that the benefits of such

arrangements, which straddle the appointment of the Tribunal and the fixing of the terms of reference, are benefits in kind within the

terms of reference

4. The applicant has appealed against the determination of the High Court on the following grounds:

“i. That the learned trial Judge erred in law and on the facts in refusing to quash the decision of the [Tribunal] to proceed to public

hearings in respect of the purchase of Doncaster Rovers Football Club and the purported “connection” of Michael Lowry to the said

purchase on the grounds that the Terms of Reference of the [Tribunal] do not empower him to investigate transactions taking place

after the date of establishment of the Tribunal and giving rise to payments to Mr. Lowry;

ii. That the learned trial Judge erred in law and on the facts in determining that the purchase of Doncaster Rovers Football Club was

within the [Tribunal’s] Terms of Reference since it “straddled” the date of establishment of the Tribunal;

iii. That the learned trial Judge erred in law and on the facts in refusing to grant an Order to the applicant quashing the decision of

the [Tribunal] to proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club and the purported

“connection” of Michael Lowry to the said purchase on the grounds that it was not reasonable for the [Tribunal] to determine that

there was sufficient evidence before the [Tribunal] at the time of that decision, namely 27 May 2004, to warrant proceeding to a full

public inquiry in respect of the matter of the involvement of Mr. Michael Lowry in the purchase of Doncaster Rovers Football Club;”

In essence there are two points for consideration on this appeal: (a) the temporal issue, and (b) the sufficiency of evidence issue.

5. (a) The temporal issue

I shall consider first the temporal issue. The query is whether the terms of reference may include transactions which occurred after

the establishment of the Tribunal. Thus it is a question of interpretation of the terms of reference.

In contemplating the terms of reference of a tribunal of inquiry the special nature of such a body requires to be borne in mind. First,

the nature of its establishment. It was established by resolutions of both Houses of the Oireachtas, by persons elected in this

democracy. It is an organ specifically chosen by the representatives of the People to inquire into specific issues. The fact that the

terms of reference are rooted in resolutions of both Houses of the Oireachtas is an important factor.

Secondly, the nature of the body in issue is an important factor. It is a tribunal of inquiry. It is an inquisitorial body. It is not part of

the Courts’ infrastructure of the State. It is not a court of law. It has an inquisitorial function to ascertain the truth or falsity of facts

and report to Parliament: Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542, at p. 590.

The terms of reference of this Tribunal are broadly drafted, see paragraph 2.3 above. Specifically I note that paragraph (e) requires

inquiry into whether any substantial payments were made directly or indirectly to Mr. Lowry during any period when he held public

office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public

office or had the potential to influence the discharge of public office (the emphasis is added). It is further broadened by the definition

of ‘payment’ and ‘connected’ person, as set out in paragraphs 2.4 and 2.5 above. The width of the terms of reference are apparent

also in paragraph (g) where the Tribunal is to inquire into whether Mr. Lowry did ‘any act’ or made ‘any decision’ in the course of

Ministerial office held by him to confer ‘any benefit’ on ‘any person’ making a payment referred to in paragraph (e) or ‘anyone’ who

was a source of ‘any monies’ referred to in paragraph (f) or ‘any other person’ in return for such payments being made or procured or

directed to ‘any other person’.

As to the inquiry required, it is apparent that there is no express time limit given to the inquiry. No specific time frame is set out in the

resolutions. These terms of reference may be distinguished from the terms of reference of other tribunals, e.g. the McCracken

Tribunal, where the Houses of the Oireachtas specified dates. The fact that the Houses of the Oireachtas did not make such a

temporal limitation for this Tribunal is an important factor.

The specific words of the terms of reference require the Tribunal ‘to inquire urgently’ and to make such ‘findings and recommendations

as it sees fit’ in relation to specified matters. It is a fact-finding operation reporting to the Legislature: see Goodman International v.

Mr. Justice Hamilton [1992] 2 I.R. 542, Finlay C.J. at p. 588.

The applicant asked the Court to consider certain specific words of the terms of reference which are in the past tense and construe

them so as to interpret the whole terms of reference accordingly. I am not satisfied that such an approach is appropriate. It is clear,

as stated previously, that the Tribunal was given broad terms of reference. The purpose of the Tribunal’s inquiries and report is to

restore public confidence in our democratic institutions. A technical or legalistic approach to interpreting the terms of reference may

give rise to the view that inquiry has not been made into all the relevant transactions. As was submitted on behalf of the Tribunal,

the Tribunal has to consider, amongst other matters, whether various property transactions, i.e. Doncaster, Cheadle and Mansfield

(and the related financial transactions), were intended as a substitution for a payment of £147,000 to Michael Lowry which was

reversed on the date of the establishment of the McCracken Tribunal and whether these transactions were part of a train of

transactions related to the conferral of benefit on Michael Lowry. Counsel on behalf of the Tribunal pointed out that some of the

events referred to, a Telenor/ESAT $50,000 payment and the £147,000 payment, predated the terms of reference, while others, the

Mansfield and Cheadle transactions and, although counsel could not yet state with certainty, the Doncaster Rovers transaction,

appear in some respects to post date the terms of reference. Further counsel submitted that it could not yet be clear whether there

had been commitments made, whether there had been the commencement of a process to acquire property, before the terms of

reference, even if the acquisition was after the terms of reference. If the approach of the applicant were correct it would undermine

the objectives of the inquiry.

It is well established in our jurisprudence that the terms of reference primarily fall to be interpreted by the Tribunal. It is an important

function of the Tribunal. It is an area where the Tribunal is given a wide discretion, as has been recognised in previous cases. The

Courts have been slow to intervene in a tribunal’s interpretation of its terms of reference.

In this case the Tribunal has interpreted the terms of reference as requiring it to inquire into whether a payment was made to Michael

Lowry during a period when he held public office as including the period after the adoption of the terms of reference, in circumstances

giving rise to a reasonable inference that the motive for making the payment was connected to or had the potential to influence the

discharge of his office. In my opinion that is an interpretation which is reasonable and open to the Tribunal.

Transactions may have several stages, they could commence with oral words. As the Chief Justice pointed out during the hearing of

the case, a transaction could commence with words such as ‘I’ll see you right’, and then progress at a later stage to written

transactions between parties. Indeed such parties may be ‘connected’ in the sense defined in the Ethics in Public Office Act, 1995,

while transactions may reflect another form of benefit in kind. It is a question of fact as to whether a series of actions form part of a

number of transactions which are the subject of this inquiry. Such issue is primarily a matter for the Tribunal.

The settled jurisprudence of this Court is contrary to the applicant’s submissions. It is well established that the courts are slow to

intervene in the working of a tribunal whose personnel have extensive knowledge of the subject. As Keane C.J. stated ex tempore in

Flood v. Lawlor, Unreported, Supreme Court, 24th day of November, 2000:

“It is not necessary to stress, because it has been repeatedly said in this court, that the courts in interpreting the relevant

legislation, must afford a significant measure of discretion to the Tribunal as to the way in which it conducts these proceedings. It

must, of course, observe the constitutional rights of all persons who appear before it or upon whom the decisions of the Tribunal or

the manner in which they conduct their business may impinge, but making every allowance for that important qualification, the

principle remains as I have indicated. The Tribunals must be afforded a significant measure of discretion as to the manner in which

they carry out the important task which has been entrusted to them by the Oireachtas because if that principle is not borne in mind

then the very important objectives which the establishment of the Tribunal of this nature was intended to achieve can only be

frustrated.”

The interpretation of the terms of reference is a function of the Tribunal and primarily is not a matter to be determined by the court.

If the terms are vague or ambiguous or capable of two or more meanings, it is for the Tribunal to interpret the terms: see Haughey v.

Moriarty [1999] 3 I.R.1 at p. 56.

It may well be that arising from experience gained over the last two decades, in the future terms of reference of tribunals established

by the Houses of the Oireachtas may not be so broadly drafted, and specific time limits may be incorporated. But that is not the

position of this Tribunal.

On this ground of appeal, I would affirm the decision of the High Court and dismiss the appeal.

(b) The sufficiency of evidence upon which to proceed in a public hearing.

The second issue raised by the applicant is the sufficiency of evidence required to proceed to pubic hearings in respect of the issue

of the purchase of Doncaster Rovers Football Club and the purported connection of Michael Lowry to the said purchase. On behalf of

the applicant it was submitted that the learned High Court judge erred in refusing to quash the decision of the Tribunal to proceed to

public hearings on this issue on the basis that it was not reasonable for the Tribunal to determine that there was sufficient evidence.

I am satisfied that the learned High Court judge was correct, and I would dismiss this ground of appeal also. While there are a series

of stages in an inquiry, the core function of a tribunal is to dispel public disquiet. Thus the public hearings are a critical aspect of the

process. It is quintessentially a matter for the Tribunal to determine the matters to proceed to public hearing. In the circumstances, I

am satisfied that the applicant has failed to discharge the onus which rests upon him. Keane C.J. in his judgment in Mr. Justice Flood

v. Liam Lawlor ex tempore judgment delivered 24th day of November 2000, nem dis., stated:

“It is worth noting, I think, that in a recent decision of this court arising out of the same inquiry of Bailey v. Mr. Justice Flood

Supreme Court 14 April, 2000, in the judgment of the court, delivered by Mrs. Justice Denham on the 14th April of this year, the

following paragraph appears which is highly relevant to the issues with which this court is concerned this morning.

‘The novel feature of the present case was the argument that the evidence of the applicants should be heard by the Tribunal in

private in the first instance and if it was then established or emerged that the evidence so given was relevant or material the hearing

could be repeated in public. Assuming, without deciding, that such a procedure was permissible a decision as to whether that course

should be adopted was one which fell to be made by the Tribunal itself. That decision must conform to the standard of

reasonableness laid down by this court in The State (Keegan) and the Stardust Victims Compensation Tribunal [1986] I.R. 642 and

O’Keefe –v-An Bord Pleanála [1993] 1 I.R. 39.’

There is also a reference to the similar approach taken in England in the case of R –v- Lord Saville [1999] 4 All E.R. 860.

Applying those same considerations to the present case, I am quite satisfied that the Tribunal was entirely within its rights in seeking

in the first instance to inquire from the defendant in private and in correspondence and so on through his solicitors whether he could

give them assistance in this matter and that having exhausted, as the Tribunal saw it, that line of approach, it was then entirely a

matter for the Tribunal as to whether it then invoked its power of requiring the person concerned to attend before them in public and

to give evidence on oath as to these matters. Applying again the principle that the courts will entrust a significant measure of

discretion to bodies entrusted with various jurisdictions, be they tribunals or otherwise, namely, that the court will not interfere with

them save where the decision reached is irrational or flies in the face of common sense. I entertain no doubt that this was a decision

which the Sole Member of the Tribunal was perfectly entitled to arrive at and one which was entirely within his discretion to arrive at

and that no ground has been shown on which the High Court should have refused to make the Order.”

While in this case the applicant is seeking the reverse – preferring the private inquiry and seeking to stop the public inquiry – the role

of the court remains the same and the same law is applicable, i.e. that the court should not interfere save where the decision is

irrational or flies in the face of common sense.

A Tribunal of Inquiry has several stages – which were identified by Hamilton C.J. in Haughey v. Moriarty [1999] 3 I.R. 1 at p. 74 as:

“ 1. a preliminary investigation of the evidence available;

2. the determination by the tribunal of what it considers to be evidence relevant to the matters into which it is obliged to

inquire;

3. the service of such evidence on persons likely to be affected thereby;

4. the public hearing of witnesses in regard to such evidence, and the cross-examination of such witnesses by or on behalf of

persons affected thereby;

5. the preparation of a report and the making of recommendations based on the facts established at such public hearing.

The Tribunal is entitled to conduct the preliminary investigation in private to decide what evidence is relevant to the public hearings.

However, as in other arenas, see Brady v. Haughton Unreported, Supreme Court, 29 March, 2005, the word ‘evidence’ does not

equate to that term as used in a court of law. Rather, it describes the information which is available, relevant, and which is served on

the persons likely to be affected. Thereafter that information comes before the Tribunal in oral evidence, which is subject to cross-

examination. It is then the basis upon which the Tribunal comes to its conclusion as set out in the report. It is not correct to

construe the term ‘evidence’ in the terms of reference as equivalent to ‘evidence’ as understood in a court of law. It falls to be

construed in context, and in such an arena is more comparable to the word ‘information’.

This information is at the core of the function of the Tribunal. The Royal Commission of Tribunals of Inquiry, 1966, in the United

Kingdom, under the Chairmanship of Salmon L.J., stated of the Tribunal of Inquiry system, which considerations were applied to this

jurisdiction in Haughey v. Moriarty [1999] 3 I.R. 1 at p.54:

“The inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom. There are, however,

exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life without which a

successful democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur, the

evil, if it exists, shall be exposed so that it may be rooted out; or, if it does not exist, the pubic shall be satisfied that in reality

there is no substance in the very prevalent rumours and suspicions by which they have been disturbed. We are satisfied that

this would be difficult if not impossible without public investigation by a inquisitorial tribunal possessing the powers conferred by

the Act of 1921.”

In Haughey v. Moriarty [1999] 3 I.R. 1 Hamilton C.J. held that these considerations are applicable in this jurisdiction, and that

continues to be true today. This Tribunal is continuing to carry out an inquiry critical to preserve the purity and integrity of our public

life. The Tribunal is inquiring to see if the specified evils exist – so that if they do they may be rooted out. Of equal importance, if it

be found that the evil does not exist, the Tribunal may so report so that if that is the case the public may be satisfied that in reality

there is not substance to prevalent rumours and suspicions. Either conclusion is important to pubic life.

It has been held that the admissibility of evidence is purely a matter for the Tribunal: Murphy v. Flood [2000] 2 I.R. 298. In that case

Hamilton C.J. went on to hold that to admit the evidence in issue cannot be said to have been made by the Tribunal in breach of the

applicant’s constitutional rights or to be so unreasonable or irrational as to justify the court in interfering therewith: see p. 305.

In arriving at the decision as to the sufficiency of the evidence the test, as set out previously, is that established in The State

(Keegan) v. The Stardust Compensation Tribunal [1986] I.R. 642 and O’Keefe v. An Bord Pleanála [1993] 1 I.R. 39. This sets a high

bar for an applicant to achieve. Applying that test to the facts relating to the purchase of the Doncaster Rovers Football Club in the

context of the events in issue, I am satisfied that the appeal on this ground fails also.

Tribunals should be afforded a significant level of discretion as to the manner in which they carry out the important work which has

been given to them by the Houses of the Oireachtas. The court should not intervene save where the decision is irrational,

unreasonable or contrary to common law. I am satisfied that the decision in this case was one which the Tribunal was entitled to

take, it is within its discretion.

I do not consider it necessary to set out in detail the precise factual matters raised on behalf of the applicant and on behalf of the

Tribunal as to the ‘evidence’ available upon which the decision of sufficiency was made to proceed to public hearing. Certain details

were set out by the learned trial judge, which I deem sufficient. These matters have yet to be addressed in public hearings by the

Tribunal.

Delay

Tribunals of Inquiry are established by the Houses of the Oireachtas to inquire into definite matters of urgent public importance. Such

tribunals should be assisted to make their inquiries within an appropriate time frame. While all persons have their right of access to the

courts, it is an unfortunate consequence of court proceedings that by their very nature such proceedings will halt or slow the

workings of a tribunal. This delay is extended if an applicant seeks both an order of the High Court and, on appeal, the Supreme

Court. While such right of access is fundamental, and not to be gainsaid, the consequent delay, or delays, should not be visited upon

the Tribunal.

Conclusion

For the reasons given I would not intervene in the tribunal process, I would affirm the order of the High Court, and dismiss the appeal.