27 November 2005

Citizens pay high cost of testifying at tribunals (**or 'How McDowell acted like an arsewipe as usual')

Sunday Business Post

27 November 2005
By Vincent Browne

The McBrearty family conducted a sustained campaign against the Minister for Justice, Michael McDowell, over his refusal to guarantee to pay their legal costs at the Morris Tribunal.

The minister claimed he could not give such a guarantee, as the tribunal might refuse the McBreartys their costs on the grounds that they obstructed the work of the tribunal.

It would be absurd, he argued, to guarantee them their costs until the tribunal had established that they had cooperated fully.

There was plausibility to his contention.

Tribunals are peculiar animals. They require citizens to give evidence and produce documents. Tribunals are engaged in inquiries that may damage the good name of individuals. Therefore, when the state chooses to establish tribunals, it has an obligation to citizens that appear before it, and citizens whose reputations may be damaged, to guarantee the costs of their legal representation.

There is a constitutional right to legal representation on the part of people whose good names might be damaged by a tribunal.

Citizens who waste the time of a tribunal or tell lies or wrongly refuse or fail to supply documents to it are normally refused the costs of their legal representation. That seems fair enough, on the face of it.

But the practice whereby nobody is guaranteed his legal costs until a tribunal has established that he has cooperated fully causes problems.

Citizens who want to cooperate fully, but who have to spend lengthy periods at a tribunal, must fund their own legal expenses until the tribunal gets round to awarding costs, very much at the end of the day.

The time lag might be years, and people without substantial financial resources are effectively deprived of legal representation for most of the time they are dealing with tribunals.

The inequity is obvious, but does anybody in government - or, for that matter, in the tribunals - care?

In the McBreartys' case, the unfairness of all this was bizarre. Before the Morris Tribunal got under way, the gardai accepted that the McBreartys were entirely innocent.

The purpose of the tribunal's inquiries in the modules concerning the McBreartys was not to establish whether the McBreartys had done anything wrong, but how and why they were wronged. They were the victims.

They had every reason to cooperate fully with the tribunal, to give it all the information, documents and data.

From the outset, they wanted their legal costs guaranteed and paid in instalments. McDowell would not have it.

You could say the minister's hands were tied by precedent and by a sense of duty to the state - a duty to ensure that the state did not guarantee payment of legal costs to anybody legally represented at a tribunal without full cooperation being established in advance. Certainly this could be perceived as harsh in the case of the McBreartys, but what else could be done?

I am not saying I agree with this proposition - I don't - but one can see the force of it.

But it now emerges that McDowell, on behalf of the state, guaranteed - before the tribunal even began its hearings - to pay the legal costs of a whole raft of people whose actions were to be examined by the tribunal.

In the case of many of these, far from being entirely innocent victims of the improper conduct of others, they were the suspected perpetrators of that improper conduct.

It really is incredible, isn't it?

The Garda Commissioner engaged a legal team to represent not just himself, but 101 other gardai, many of whom were suspected of having wronged the McBreartys and having otherwise engaged in spectacularly improper conduct.

This legal team did not depend on the chairman of the tribunal awarding its legal costs at the end. These were paid handsomely on an ongoing basis from state funds, via the Garda Commissioner's office.

The tribunal rejected the evidence of several of these gardai whose legal costs were guaranteed in advance by the state. In other words, it didn't believe them.

Very serious charges of improper conduct and negligence were made against a raft of them, including Chief Superintendent Sean Ginty, Chief Superintendent Denis Fitzpatrick, Superintendent JF O'Connor and others.

In the case of many of these, the tribunal rejected their evidence. Where this happened in other tribunals, such people were refused their legal costs.

But in this case, the legal costs were fully paid by the state, in instalments and guaranteed in advance.

The total bill came to €4.6 million for the barristers alone. Two of the barristers made well over €1million over three years.

Could somebody explain this?

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