The debacle of the Planning Tribunal

A number of revelations about the conduct of the Planning Tribunal must put the future and past proceedings of the tribunal in doubt

The Planning Tribunal was established a decade ago, under the chairmanship of Mr Justice Feargus Flood, to enquire into corruption in the planning process. Regrettably, the tribunal itself has become the focus of concern and investigation. It is evident it has engaged in procedures from the outset that the superior courts have found to have been a denial of the constitutional rights of persons appearing before it. But there are further reasons for concern about its operation.

First the denial of constitutional rights. Given what we now know of the tribunal's conduct, the scale of the denial of constitutional rights has been astonishing. The tribunal was aware that the most serious doubts pertained about the credibility of witnesses who were making very damning allegations against a variety of well known public persons, including Bertie Ahern, Albert Reynolds. Padraig Flynn, Owen O'Callaghan and others. And yet the tribunal concealed evidence that would have dented, if not shattered, the credibility of the witnesses concerned.

The tribunal was also aware that one of its key witnesses, Tom Gilmartin, had made allegations in public that were starkly at variance with what he had said to them in private and yet did nothing to mitigate the damage to the reputation of the persons gravely and unjustly defamed by the allegations.

But more has emerged recently.

The disclosure of the transcripts of interviews conducted in private with witnesses shows  in one instance one of the counsel for the tribunal making remarks about tax matters that could be seen as an incitement to a witness, Frank Dunlop, to invent charges against public representatives. No doubt the lawyer in question had nothing of the sort in his mind but the clear inference from the transcript of the conversation (see page 20) – to do with Frank Dunlop's tax affairs  – was that the latter would be better off were he to claim he had given more, not less, money in bribes to public representatives.

There is also the disquieting information emanating from Padraig Flynn that Tom Gilmartin told him he had changed his evidence in the advice of a person connected with the Tribunal. Clearly, this is not established as fact – as yet. But also, clearly it needs to be thoroughly investigated.

But the most disquieting evidence has to do with the issue of the audio recordings of private interviews. When the transcripts of the private interviews were disclosed, following a court order, it was noted that every now and again the lawyers and the witnesses would go “off record”. This raised the obvious question: why would the parties want to go “off record” in the course of private interviews, which, they had no reason to know would ever be itself other than “off record”?

This caused parties who had received such transcripts to enquire if there had been audio recordings made of the private interviews and they were told repeatedly and emphatically there were no such recordings. The High Court was also so informed.

But transcripts have turned up with cover pages containing a tribunal stamp recording receipt from the stenographers of the transcript, and within the stamp there was inserted in writing “by hand-tapes and disquettes”, clearly indicating that the interview in questioned had been audio-taped.

In addition, as we report on subsequent pages of this issue of Village, there was a clear acknowledgement by one of the tribunal lawyers in the course of one private interview that the interview was being audio-recorded, for he said “let's go back on tape”. And yet the tribunal insisted to the High Court there were no audio tapes of these interviews.

However since then tapes have been “discovered”, tapes which recorded private interviews!

It is difficult to understand how nobody among the tribunal team or staff knew that at least some of the private interviews were being tape-recorded, especially as, obviously, the tapes were returned to the tribunal along with the transcripts. The question arises why would anybody connected with the tribunal want to conceal the existence of these tapes?

There is a further point.

Here must be at least a doubt now about the validity of any of the tribunal findings to date. Given that it has been established that the tribunal procedures are illegal and an unconstitutional breach of persons' rights, isn't there a strong case for having all the findings of the tribunal to date null and void?

And furthermore, how conceivably could those dragged through the tribunal and forced to spend, sometimes millions of pounds/Euros on legal fees not now be entitled to compensation on the grounds that these costs were incurred in relation to an institution of the State that was acting illegally?

This is a major fiasco.