Does Michael Lowry's response have merit?

later12

I have no inherent sympathy for Michael Lowry, and I do not consider Michael Lowry to have shown himself to be an honest man in the past.

However, like many people who watched his Dail speech, I found some of his comments slightly troubling - not because I find them incredible, but because I feel that his protests appear to have merit. Particularly so those comments which I have outlined in this thread and that have been taken directly from his Dail speech, which posters might examine for themselves. All emphasis in the selected quotes is my own.

Lowry's speech
http://www.google.ie/url?sa=t&source=web&cd=4&ved=0CDEQFjAD&url=http%3A%2F%2Fwww.rte.ie%2Fnews%2F2011%2F0329%2Flowryspeech.pdf&rct=j&q=michael%20lowry%20dail%20speech&ei=L9GUTe2TOIqXhQeU6NTmCA&usg=AFQjCNFsBeaET6eZJHRD4Ra5crc-dmD4vg&cad=rja

Firstly, on the position taken by the state with regard to Michael Lowry having profited from the granting of the seconf mobile phone licence. It appears that the state has two contradictory opinions:

Mr. Moriarty has created a false impression in his report that I was the net beneficiary of approx 900,000 arising from two property transactions and a loan agreement - This is not a truthful or accurate presentation of the facts. The fact is that absolutely no money accrued to me from the transactions referred to in his report. The trail of documentation both legal and accountancy confirm the validity of this statement.
As everyone in this country is aware my financial affairs both personal and business were the subject of intense Revenue Commissioners investigation. My professional advisors last Friday re-confirmed to me that these 3 transactions referred to in the Moriarty report were covered under the period of Revenue investigation. The Revenue Commissioners accepted that I had no income from these transactions and therefore they attracted no tax liability. It is therefore quiet extraordinary that Mr. Moriarty can give such a misleading impression to the Irish public.

If it was the conclusion of the Revenue that no income was derived from the transactions, we have an odd sort of paradox whereby the state inherently accepts that Michael Lowry did not profit from any such transactions on one hand and further does not consider tax liability on these transactions, and on the other hand the state, via the Dail, has unanimously sought to censure Lowry and plead for his resignation arising on foot of these transactions.

How can this contradiction be overcome?

Incidentally, the tribunal itself is not really an arm of the judiciary nor does it attempt to speak for the state as much as express an opinion - so its findings really ought to take lower precedence here, I would have thought.

Secondly, the issue of witness testimony being at contradiction with Moriarty's judgement:

Every witness questioned was absolutely clear that I did not influence the outcome of the mobile phone license award in any way. So why was the tribunal and Judge Moriarty unwilling to believe or accept those testimonies under oath. Why is the Tribunal happy to fabricate and invent the content of a conversation between Denis O’Brien and I in 1995 that never happened, that both of us confirmed never happened and nobody else was present to confirm otherwise? What is the legal basis or justification for such an outrageous assumption and finding?

John Waters in last Friday’s The Irish Times highlighted the injustice of this approach by the Tribunal to evidence when he wrote;
“To conclude that a particular meeting dealt with matters which 100 per cent of the participants insist were not discussed is to propose that every allegation comprises its own proof. This is not the “balance of probabilities”, but the elevation of suspicion to the level of hard evidence”.

I'm just throwing this in because i find it one of the more troubling aspects of the Moriarty conclusion. I do find this to be a particularly strong argument in detracting from the reliability of Moriarty. The strentgh of this argument is ameliorated again by the testimony of the key expert in the licence competition, Prof Michael Anderson who outright denies some of the tribunal's finding such as that the civil servants involved were shocked that Lowry was aware of draft rankings for the licence bidders. This appears not to have been the case according to witnesses including Prof Anderson and civil servants and it is unclear why Moriarty thinks so.
The tribunal has also ruled that Lowry pushed the project group into making a decision with indecent haste. Lowry denies this, the civil servants deny this, Professor Anderson denies this and Denis O'Brien made the point that the decision was delivered on schedeule, not before time - so why does Moriarty take an alternative view?


Another aspect of Lowry's argument which puts his Dail censure into serious credibility is the issue of Dail support for Moriarty.

Less than 4 months ago, the Sunday Tribune published the results of a comprehensive poll conducted among no fewer than 129 sitting TDs and Senators. The Tribune asked those Members of the Oireachtas a simple question “Do you have confidence in the Moriarty Tribunal?” More than two thirds of those polled said No. Only one in five answered Yes.
The Sunday Tribune as part of this front page piece stated the following: “The lack of confidence in the Tribunal was not confined to any particular party or specifically to either the Dáil or Seanad, with the dissent spread between the two houses and across the political spectrum”.

Now if over 66% of the last Dail, many of whom were again returned did not have confidence in Moriarty, how is it that the motion to censure Lowry from the national legislature, the house where he has been sent to legislate on a democratic mandate, went unopposed?

Another aspect of the tribunal's activities which I find troublesome is the relationship between the prosecution and Moriarty himself.

In the Irish world of Tribunals, the prosecution team and the Judge go to work together and do so as close friends and colleagues for 14 years. We seem to have become immune to this incredible proposition. I cannot recall a single instance in the past 14 years when any objection to the approach of Tribunal Counsel was accepted by the Tribunal Chairman. Not one. How would any of you feel if you were to walk into Court tomorrow as a Defendant to find that the prosecutor worked in the same office as the Judge, discussed the case openly with him, that they co-operated together to prepare the questions for the defendants? It seems crazy- but this is what happened for the last 14 years at this Tribunal.

Given that the findings of the Moriarty tribunal have severely damaged the reputation of Michael Lowry via a process that while it was only quasi-judicial, appears to have been given the full gravity of a judicial ruling all but in punishment, it seems strange that Michael Lowry had no recourse to legal aid in helping to defend his character and reputation to the extent that it was still possible to do so:

The lawyers for the Tribunal cashed cheques for over €50,000 a month, every month, every year for 14 years. They were handed this money to prepare and hone their attacks on me and yet I was left to fend for myself as a private citizen without State support.

Now I have no doubt that many of you will have no sympathy for Lowry, and generally neither do I. However, I do object, nevertheless, to the hounding of a man who presents such valid concerns as those which I have outlined in the above paragraphs.

For the record my hunch is that there was a respectively shared desire by Lowry and O'Brien to grant the second GSM licence to Esat, and perhaps even a financial remuneration process was initially put in progress to that effect by Denis O'Brien. However, I think that Lowry may merely have discovered that this was about to happen anyway, and found that he needed to exert no influence. I think this is the most logical and most reasonable conclusion to find based on the evidence, but there certainly is no evidence for it, much less for the conclusion that has been reached by Moriarty himself.

As Michael Lowry himself said in his Dail speech

If we truly believe in a democracy; if we truly believe in the ideals of a Republic and what our Constitution says about this State’s duty to protect the reputation of all of its citizens, then we should demand a far higher standard than what was delivered to this House last week by the Moriarty Tribunal. No one should be damned on groundless opinion and in the face of all of the sworn evidence provided.

This article has more on the credibility of the Moriarty Tribunal
http://www.irishtimes.com/newspaper/ireland/2011/0323/1224292846922.html

While again reiterating that I have no inherent reason to feel any sympathy with Michael Lowry, I feel that the Moriarty Tribunal has become nothing more than a show trial (a thing it was never originally designed to be) which although it satisfies the public hunger for blame and outrage, is not a credible entity in itself and the gravity with which its findings are tacitly accepted, sometimes with the aim of nothing more than discrediting totally the reputation of a citizen flies in the face of the constitutionally ordained arm of justice that this state has elected to serve its people.

Bucklesman

If we truly believe in a democracy; if we truly believe in the ideals of a Republic and what our Constitution says about this State’s duty to protect the reputation of all of its citizens, then we should demand a far higher standard than what was delivered to this House last week by the Moriarty Tribunal. No one should be damned on groundless opinion and in the face of all of the sworn evidence provided.

"We should demand a far higher standard"

That's what it all boils down to there. Even if the Moriarty Tribunal is little more than "groundless opinion" (not that I believe it is by any means), the fact that Lowry had such contacts and handled such transactions is just not good enough. He had no fear of even the appearance of corruption because he knew he'd get away with it.

Bottom line: we should demand better of our elected representatives. They should be afraid of having dodgy contact with third parties because those are the situations that lead to corruption.

Sand

Im not particularly sympathetic to Lowry. That said, its worth noting that he hasnt actually been convicted of anything in a court of law. And as such, Lowry can always protest that nothing against him has been proven under those terms.

But the point is the Moriarty Tribunal is not a criminal court, with the power to convict Lowry and sentence him. The terms are located here.

The term "reasonable inference" is used heavily throughout the reference as opposed to "beyond any reasonable doubt". Moriarty wasnt asked to convict Lowry, he was asked to investigate and report on if it could be reasonably inferred that Lowry had received benefits directly or indirectly, in cash or benefits in kind for favours, either directly given or indirectly given. Moriarty was also asked to make broad recommendations to insure the integrity of the public administration.

The Revenue obviously have a different burden of evidence when it comes to imposing taxation on people. They cant impose taxes on the basis of "reasonable inference" that Lowry probably owed them.

Given the poor standards of decision making within the Irish public administration, where neither the minister nor the civil service are responsible for anything and no records are kept and no transparent oversight entertained its probably unsurprising that it cant be proven beyond a reasonable doubt that Lowry influenced the awarding of the licence. However, Moriarty wasnt asked to prove beyond a reasonable doubt, he was asked to determine the reasonable inference of his investigation.

His reasonable inference was that Lowry was a disgrace to his office and his constituency. I dont disagree.

Id prefer if Lowry was put in front of a criminal court, but then hed be at risk of more than losing his reputation - such as it was.

later12

Sand wrote: »

The term "reasonable inference" is used heavily throughout the reference as opposed to "beyond any reasonable doubt". Moriarty wasnt asked to convict Lowry, he was asked to investigate and report on if it could be reasonably inferred that Lowry had received benefits directly or indirectly, in cash or benefits in kind for favours, either directly given or indirectly given. Moriarty was also asked to make broad recommendations to insure the integrity of the public administration.

The Revenue obviously have a different burden of evidence when it comes to imposing taxation on people. They cant impose taxes on the basis of "reasonable inference" that Lowry probably owed them.

This is all correct, and I agree with it.

My point is that given the threshold of evidence, and given the terms of reference of the tribunal, the tribunal ought to take a lower precedence than, for example, Revenue, or the judiciary. It seems, rather, that the media and the Dail have taken Moriarty's findings as a free ticket for a veritable hanging.
I welcome entirely that we might be enlightened on the basis of reasonable possibility, however i do not accept that our representatives ought to attempt to censure a fellow representative on such an arbitrary basis.

It stinks of populism.

HivemindXX

later10 wrote: »

I welcome entirely that we might be enlightened on the basis of reasonable possibility, however i do not accept that our representatives ought to attempt to censure a fellow representative on such an arbitrary basis.

It stinks of populism.

It's hardly arbitrary. Arbitrary would be basing action on the oft consulted "dogs in the street".

In addition the censure motion is largely meaningless isn't it?

P. Breathnach

Sand wrote: »

... The Revenue obviously have a different burden of evidence when it comes to imposing taxation on people. They cant impose taxes on the basis of "reasonable inference" that Lowry probably owed them....

I am not commenting on the Moriarity Report, because I have not read it.

But I think the above comment on the Revenue Commissioners is mistaken. They can raise an assessment on the basis of a reasonable belief that an income existed and a reasonable estimate of its size. The burden of proof then passes to the taxpayer to disprove the assessment.

Bullseye1

The bigger scandal here is that this tribunal has cost the tax payer millions of euros and all it is is speculation and conjecture. And why did it take 14 years. A complete waste of money. It's speculation and meaningless unless convictions take place which requires a proper court case with proper evidence and judgement. The judge has got a very easy ride in the press IMO.

It's quite simple if a defendant was subjected to this type of speculation in a real court case there would be a scandal. Lowery may very well be corrupt but it should be proved in a court of law not a court of public opinion.

HivemindXX

Equating the findings of the Moriarty tribunal with the "court of public opinion" is ridiculous. You would swear they just asked around in the pub.

I think the country deserves honest politicians. The tribunals serve a useful purpose in highlighting the crooks and dragging them in to the public view. If the next time someone thinks about using their power to profit themselves they don't do it because they think a tribunal might expose them in 10 years I'll consider that a success.

dynamick

There is huge pressure on a tribunal judge to deliver a popular newsworthy unambiguous guilty verdict. Tribunals are strongly associated with the name of the presiding judge and the judge will be remembered ever after for nothing else.

If his judgement is that there is insufficient evidence to be sure that wrongdoing took place or who was guilty, then the press will judge him a failure, a man who wasted public money for years. After the beef tribunal (I can say this now because the presiding judge died 11 years ago), there were persistent rumours that the judge was corrupt simply because he did not reach a damning, headline-generating verdict.

murphaph

This whole scenario just shows that the Dail itself needs much strengthening against such chancers as Michael Lowry (with his poor trembling lower lip act-and it is an ACT).

The Dail should be able to censure and indeed expel members based on something like a 2/3, 3/4 or 4/5 majority NON SECRET vote. A simple majority would be dangerous to democracy as a government party with a small majority could start voting to remove members of the opposition just because.

We shouldn't have to spend millions on such investigations. We should start by making the Dail itself more transparent, all expenses should be published online in a central location (at present some TDs choose to publish this info but it's scattered about the net).

We need honest people entering politics and staying honest. We need to help keep them on the straight and narrow by watching them and pressing them to make the information we need and deserve easily accessible.

Lowry has cost us enough money and unfortunately it is unlikely a criminal trial will be able to pin enough on him to secure a conviction now. We need to learn the lessons, listen to what Moriarty is saying (also about the failings in the CS) and act on them to make a re-occurrence less likely in future.