Complaint: Marian Finucane Show/Moriarty Tribunal

20 Feb 17

I am of the opinion that a segment of the Marian Finucane Show broadcast on RTÉ Radio 1 on Sunday 19 February breached –
· Provisions of section 39 of the Broadcasting Act 2009;
· Principle 6 (Protection of the Public Interest) of the BAI Code of Programme Standards and,
· Principles of Fairness and Accuracy of the BAI Code of Fairness, Objectivity & Impartiality in News and Current Affairs

Audiences are entitled to trust that the news and current affairs content they access from RTÉ is accurate. Accuracy is a fundamental principle associated with the broadcast of news and current affairs content on RTÉ. I accept that despite best efforts, inaccurate information can sometimes be conveyed, whether explicitly or implicitly.

I accept that Fergal Keane is an experienced and exceptional journalist.

The intention of this complaint is to emphasise and underline the distinction between the Mahon and Moriarty Tribunals. The purpose is to dispel common misperceptions about the Moriarty Tribunal findings. I believe it is absolutely and fundamentally in the public interest to do so. To that end, I wish to draw to RTÉ’s attention recent judgments by the High Court and the Supreme Court.


Transcript of the Marian Finucane Show on RTÉ Radio 1 Sunday 19 February 2017 discussion on Tribunals between Fergal Keane and Marian Finucane.
FK: The Mahon Tribunal was challenged by people, they had its findings overturned on 7 occasions by various people… Just to go back to the challenges you mentioned. The Mahon Tribunal was challenged 7 times, that’s the findings. Multiple times visits down to the Supreme Court, the High Court where things are held up in the meantime. Denis O’Brien went to the High Court several times over the Moriarty Tribunal. Now he decided that he wasn’t going to challenge the findings itself.
MF: He just dismissed them.
FK: He just dismissed them. Had he challenged them, given all the success of the others, he possibly would have won in that case but he decided that he wasn’t going to go there.
MF: That’s disheartening isn’t it? I mean not disheartening particularly by Denis O’Brien but if you go through all of this…
FK: Our legal system is failing us in a whole different set of ways…


The grounds of my complaint:
1. The Mahon Tribunal and the Moriarty Tribunal were different Tribunals.

  • They were chaired by two different judges.
  • The matters under consideration of both Tribunals were different.
  • The processes of both Tribunals were different.
  • They are different reports.
  • Aspects of the Mahon Tribunal findings were successfully challenged.
  • None of the Moriarty Tribunal findings were challenged.
  • They are different Tribunals.

2. It is wrong to lump all Tribunals together and assume that the shortcomings of one Tribunal means that all Tribunals are flawed. To do so, is a disservice to all public inquiries. In the same way, it is wrong to lump all RTÉ Prime Time programming together and assume that the shortcomings in the RTÉ Prime Time Investigates: Mission to Prey programme broadcast in May 2011 means that all RTÉ Prime Time programming is flawed. To do so, would be a disservice to public sector broadcasting.

3. The assertion that had Denis O’Brien challenged the Moriarty Tribunal findings, “he possibly would have won”, casts doubt on the findings of the Tribunal. Language is important. There is no doubt regarding the Moriarty Tribunal findings because neither Denis O’Brien nor Michael Lowry legally challenged them.

  • The Moriarty Tribunal findings were never challenged.
  • There are no grounds, whatsoever, to suggest that if the Moriarty Tribunal had been challenged, Mr O’Brien would have won.
  • The Moriarty Tribunal findings permanently stand, unchallenged.

4. Supreme Court and the High Court judgments in 2016 emphasised that the Moriarty Tribunal findings were not challenged

a) O’Brien v. Tribunal of Enquiry into payments to Messrs Charles Haughey & Ors [2016] IESC 36 at 62

Justice Iseult O’Malley:

“There is no live controversy, affecting the appellant’s rights [Denis O’Brien], that requires to be resolved. It became moot, in my view, not because of the acknowledged pressure on this Court’s list but because the report of the respondent [Moriarty Tribunal] was published in the absence of any application to restrain publication. This event overtook the appellant’s apprehensions about the potential findings and his cause of action, if any, would thereafter have to have been framed by reference to the actual findings.”

b) Lowry v. Mr Justice Moriarty [2016] IEHC 29 at 7.8

Justice John Hedigan:
“This application is not and can not be a challenge to the respondent’s [Justice Moriarty] findings made in his report published in March 2011. Those findings stand unchallenged and neither a direct nor a collateral challenge can be made herein. This applicant is limited to a challenge to the specific ruling on costs made in relation to himself herein on the 31st October, 2013. In the respondent’s unchallenged report of March 2011 he made certain findings of non cooperation on the part of the applicant. Those findings are set out at para. 3.10 above. These unchallenged findings are a litany of falsification and deception by Mr. Lowry including the alteration and falsification of a solicitor’s files in order to conceal certain of his dealings from the tribunal. They include findings of perjury and bribery of a potential witness to support Mr. Lowry’s false evidence. All of this was with the intention of misleading and frustrating the tribunal. As a result of this conduct by Mr Lowry, the tribunal was frustrated and misled and its work was protracted significantly. I emphasise these findings are not challenged in these proceedings nor can they be because the time within which such a challenge could be brought is long expired.”

Project Eagle sale highlights downside of ‘commercial sensitivity’ secrecy

22 Sep 16

First Published in the Sunday Business Post on 18 September 2016

Lesson one to circumvent public transparency – insert a commercial sensitivity clause into your organisation’s raison d’être

What does the Nama sale of Project Eagle have in common with public-private partnerships operated by the National Treasury Management Agency (NTMA) and the winding down of the Irish Bank Resolution Corporation?

All three entities involve the expenditure of extraordinary sums of public money. By definition, they operate at the coalface between public and private sectors. They are the subject of extensive scrutiny. Crucially, Nama, NTMA and IBRC involve decision-making where there is a “winner” and a “loser”.

The winner is defined as the individual or company which makes the best bid for a Nama asset, tenders the most successful PPP (Public-Private Partnership) proposal or successfully buys IBRC loans at the best rate.

The decision-making process which determines the “winner” does not, for the most part, come under Freedom of Information legislation. The pretext of commercial sensitivity precludes against a comprehensive transparent regime.

We will get to exact examples of this shortly.

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Suffer little children: the adults are fighting

21 Sep 16

First published in the Sunday Business Post 4 September 2016

Why did 38 vulnerable children spend 19 hours in solitary confinement at the Oberstown Children’s Detention Campus?

The Luas strikes were inconvenient. We had to walk, get the bus, hail a taxi or just make different plans. We had a choice. There were different methods of transport we could use. Annoying, but this industrial dispute was not the end of the world.

Now picture this. The Luas drivers go on strike after talks with management fail. They lock the doors of the Luas with the passengers still inside. Although this long-running dispute has nothing to do with the passengers, they are effectively punished for it by being confined inside the Luas for 19 straight hours.

Imagine the public uproar. RTE News would broadcast live from the Luas line.

Radio talkshows would burst with choleric outrage. Politicians would issue portentous statements of concerns for the passengers. Someone would tweet something. The relevant authorities would immediately intervene.

None of this happened last weekend. Some 38 vulnerable children spent 19 hours in solitary confinement at the Oberstown Children’s Detention Campus because the adults had a row.

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Ireland’s White-Collar Crime Problem

14 Sep 16

First published in the Sunday Business Post 11 September 2016

Ireland’s attitude to immoral conduct by the middle classes is to pretend it does not exist

What do we want? An inquiry! When do we want it? Now! This is the default response by Irish public life to allegations of unethical behaviour.

Other jurisdictions have a different response. It is a radical, revolutionary, avant-garde concept. Readers may have to sit down for this. Are you ready to be scandalised? In many places around the world, such as Brazil, Northern Ireland and America, police authorities investigate allegations of impropriety.

We will come back to this profound notion shortly.

Ireland’s attitude to immoral conduct by the middle classes is to pretend it does not exist by refusing to officially acknowledge it.

What other reason explains why the Central Statistics Office does not have a separate category that singularly identifies corruption, white collar or corporate crime? Official statistics on white collar crime do not exist in Ireland. The closest equivalent is ‘fraud, deception and related offences’. This catch-all category includes welfare fraud and new categories established under the Criminal Justice Act 2011 such as fraudulent trading and insider dealing.



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Michael D Higgins: The history man

22 Aug 16

President Michael D Higgins delivered the oration at the Annual Michael Collins Commemoration in Béal na mBláth. His speech can be accessed here. The President called for “courage and honesty” as we approach the commemorations of the War of Independence and the Civil War. He said “no single side had the monopoly of either atrocity or virtue.” The President’s acknowledgment about the immense personal suffering endured by the anti-treaty side in the years after Civil War is significant and overdue.

The President’s speech can be understood in the context of his very personal history.  Below is a detailed piece about his father which was researched from files in the military archives. This process of researching John Higgins gave me a greater appreciation of the hardship experienced by Republicans during the Civil War. My grand-uncle was a member of Michael Collins intelligence team and later became involved with the Squad during the War of Independence. He was Michael Collins aide-de-camp at the Treaty Talks and a pall bearer for his coffin. He would have been proud of the words spoken by the President at Béal na mBláth yesterday.


First published in the Sunday Business Post 3 April 2016
Newsworthiness: gave a stirring speech on the commemoration of the 1916 Rising at the Bord Gáis Energy Theatre in Dublin – and had to turn down an invite to a 1916 event in Belfast due to unionist opposition

It was the moment that President Michael D Higgins had been waiting for. A big crowd. A chance to talk about the meaning of the Irish Republic and its cultural heritage.

So it was no surprise that his speech at the Bord Gáis Energy Theatre on Easter Monday night was full of passion and energy.

“Casann an roth. The wheel always turns. What generations have created – beautiful, flawed and full of promise – we now entrust to the next.”

A clenched fist punctuated the President’s speech. Research by psychologists suggests this simple hand reflex is associated with memory recall. And given his father’s experiences in the struggle for independence, there were plenty of family memories for him to tap into.

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How many suicide charities are there?

13 Jul 16

How many suicide charities are there?

The answer – according to a search of the Charity Regulator Register is 232 (see the screenshot below).

The answer – according to Benefacts – is 48.

Benefacts have compiled a list of nonprofits in Ireland whose main purpose is concerned with some aspect of suicide: prevention, counselling, research, public education or information. It can be accessed here. Benefacts acknowledge that there are 235 charities on the Charity Regulator Register where the word is included among their charitable activities or beneficiaries. They note that these include animal rescue charities, citizens and money advice centres, drugs task forces, faith bodies, family and youth centres, mountain and marine rescue bodies, volunteering centres and others whose primary purpose is not related to suicide prevention.

My correspondence with The Wheel, which teases out these figures, is below. As a consequence of my Sunday Business Post article, The Wheel contacted the Charity Regulator’s office about the “glitch” on the Register in how it classifies charities (As of 13/6/16, this has not been fixed by the Charity Regulator).


Two Questions.

  1. How accurate is the Register of the Charity Regulator?                                                                                                                                     Why were 232 organisations (236 according to this week’s figures), such as animal charities, permitted to self-describe their charitable purpose with regard to some aspect of suicide?
  2. Will the Charity Regulator, The Wheel or Benefacts provide a breakdown by sector of how many charities there are?                        If a list can be provided for suicide charities, can a liste be also provided for how many cancer, homelessness, animal, etc charities there are?




Hi Elaine,

In your latest column “Do we really need 232 suicide charities?” (Sunday, 26 June) you ask ” Does Ireland need 232 separate charities whose designated main purpose is suicide prevention?”.

We are curious to establish how that number was calculated. Particularly what criteria was used.

When we entered the keyword “suicide” in the “Charity Purpose” field of the of the Register of Charities it did indeed returned 232 records. However, a very quick perusal of the search results show that a very large number or of the listed organisations are not primarily concerned with suicide prevention, in fact some are animal welfare charities.

We are particularly concerned because this number is now being used by other media.

Our Director of Advocacy would be happy to meet with you to discuss the challenges facing the charity sector.

Best wishes,


Gert Ackermann | Communications Coordinator
The Wheel


Dear Gert,

Thank you for your email.

As outlined in the piece, suicide was a stated purpose of 232 charities listed on the charity regulator website.

I had observed that animal charities listed this as a purpose. It appears that many charities indirectly related to suicide prevention list this as a purpose. Why does the charity regulator enable such large remit of self-description?

As noted in the article, the list does not include the many suicide charities which are not registered.

I am happy to write about the challenges in the charity sector.

Does the charity regulator have a view as to whether Ireland has too many charities doing the same work? This is my second article on this topic. The first was prompted my remarks from your counterpart in the UK who said that the UK had too many charities doing the same thing.

Kind regards,


Hi Elaine,

We have looked into the numbers…

There are 48 charities whose main purpose is concerned with some aspect of suicide: prevention, counselling, research, public education or information. More information on this from

Apparently, there is a glitch in the Register’s search function. When we entered the keyword “suicide” in the “Charity Purpose” field it also returned 232 records. However, it turns out that that the search is not of “charitable purpose” or “charitable activities”, but of the full records which includes information that is not used for classification. The 232 number is therefore incorrect. We have raised this with the Regulator’s office.

As I mentioned, we’d be very happy to meet with you to have a conversation about the role, scope and challenges of the sector. Let me know when you are available.

I have attached an international analysis from early 2015. These figures are obviously out of date, but it does provide some context.

I look forward to hearing from you.

Best wishes,

Ireland has too many charities

07 Jul 16

First published in the Sunday Business Post 2 August 2015

Many charities duplicate each other’s work, reducing their effectiveness

The newly established Charities Regulatory Authority believes it does not have enough staff to fulfil its functions. The authority has a complement of 12 with eight more to be added to the staff by the end of September.

Freedom of Information documents released to RTÉ News this week revealed that that authority deems that 36 staff are necessary.

In her letter to the Department of Justice, the chief executive, Úna Ní Dhubhghaill, said that the agency’s “service delivery is severely compromised, backlogs are developing and there is a growing impact on staff”.

So, here goes the predictable narrative. Government establishes regulator to restore public trust after high-profile scandals involving charities such as Rehab and the Central Remedial Clinic. Government does not provide sufficient staff to the new agency. The regulator struggles to satisfy its remit. Government is daft and mad.

But let’s interrogate that narrative.

There are 8,350 organisations in Ireland which have been granted Charitable Tax Exemption by the Revenue Commissioners – 8,350!

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Why we should thank John Gilligan

13 Jun 16

First published in the Sunday Business Post 12 June 2016

The photographs of a smiling John Gilligan at the Four Courts last week suggest that the convicted drug dealer revels in his unrelenting crusade to challenge the legality of every piece of legislation that has ever crossed his path.

We should thank him.

The Criminal Assets Bureau (Cab) is constitutionally robust as a consequence. Cab’s powers of civil forfeiture mean that assets from the proceeds of crime can be seized on the civil burden of proof rather than the usual burden in criminal matters of beyond reasonable doubt.


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Poverty is not the cause of gangland murders

09 Jun 16

First published in the Sunday Business Post 5 June 2016
Individual responsibility is being overlooked in a simplistic narrative

It was the Sunday night before Christmas 2004.

The phone call came through within minutes after 19-year-old Ryan Lee was shot in the right hip and the groin.

Since Eddie Ryan’s murder in the Moose bar in November 2000, the bar staff in the Limerick pubs would ring one another with warnings about the latest development in the gangland feud between the McCarthy-Dundons and the Keane-Collopys. Ryan’s death was the first of 20 gang-related murders in Limerick.

Lee was a barman who refused entry to Wayne Dundon’s 14-year-old sister. A furious Dundon put an imaginary gun to Lee’s head and said, “fuck you, you’re dead,” before leaving. Thirty minutes later Lee was shot.

Lee’s pub was five minutes from the pub I was working in. We closed the pub early.

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Ross must take charge and give our watchdogs some teeth

31 May 16

First published in the Sunday Business Post 29 May 2016

A love letter to the “outsider” who is now an “insider”

This is a love letter to Minister Shane Ross. The “outsider” who is now an insider with the well-intentioned motive to reform the “rotten” judicial appointment process by creating a new judicial appointments commission. Please don’t repeat the same mistakes as your predecessors. Here’s why.

The Irish response to crises over the past 20 years is the establishment of new independent oversight bodies. These regulatory agencies will magic away whatever controversy has demanded their creation.

We called this the Three Ps principle when I worked at the United Nations. Every country tends to do the same thing. (1) Print the legislation. (2) Put it up for everybody to see. (3) Pray to God it works. Here are four examples of the Three Ps principle in Ireland.



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