ANALYSIS:The inquiry team will have to tread carefully in imposing costs on anyone against whom it made findings
THE TRIBUNAL, in its incarnation as the Flood tribunal, has already been rebuffed in its attempt to impose costs on witnesses it considered to have obstructed its work.
Two directors of Joseph Murphy Structural Engineers, Joseph Murphy jnr and Frank Reynolds, challenged its ruling that they should pay their own costs, worth many millions of euro, because they had “obstructed and hindered” its inquiries.
In a unanimous judgment in April 2010 the Supreme Court found that, because this finding was inextricably linked to its finding of corruption against them, for which the tribunal could not impose any sanction, it was wrong to impose costs.
The court stated clearly that there could be no link between the imposition of costs and findings related to the subject matter of the tribunal.
The three judges in the Supreme Court went on to outline the circumstances in which the tribunal could impose costs on witnesses. These are restricted to non-co-operation with the tribunal. However, the court did not define what would constitute such non-co-operation.
“The tribunal will have to characterise very carefully what is ‘non-co-operation’,” said barrister Tony McGillicuddy. “If it asked a witness for information and received incomplete information, and then had to go to other sources to get the information which was in the possession of the witness who had been asked for it, that could be non-co-operation.”
If this occurred, not only could the witness be liable for his or her own costs, but could also be charged the costs of the tribunal for the additional time it had to spent obtaining the information, he said.
“It’s a very high bar. The effect of Murphy v Flood is that a tribunal will have to tread very, very carefully in designing an order for costs. It will have to examine what work was done, how there was non-co-operation, fair procedures will have to be observed, with the witness having an opportunity to put their position. There could be very, very detailed examination of the hearings. The tribunal will have to be very careful to keep within the four walls of non-co-operation and not stray into the substantive findings. It will be difficult.”
It could be equally difficult to mount a criminal prosecution for not telling the truth to the tribunal. The 1921 Tribunals of Inquiry Act, as amended in 1979, makes it an offence for a person to “wilfully give evidence which is material and which he knows to be false or does not believe to be true.”
This offence, like all criminal offences, will have to be independently investigated by the Garda and evidence assembled to support a charge to meet the criminal standard of proof, that is, beyond reasonable doubt.
All the elements of the offence – wilfully giving evidence, which is known or believed to be false – will have to be present.
A tribunal makes its findings on the balance of probabilities and those findings carry no legal liability.
“The requirements for proving such an offence would be quite high,” Mr McGillicuddy said. “An extensive inquiry would be necessary.”
Anyone who faces criminal charges arising out of an investigation based on the tribunal report is likely to argue that they would suffer prejudice because of adverse publicity.
Former taoiseach Charles Haughey avoided prosecution on this basis.
However, others have been less successful in making this argument.
The courts can, and do, restrict the kind of pretrial coverage that takes place once a person is charged and rely on the development of a “fade factor” and directions to the jury to combat any possible prejudice.