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.

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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…

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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.”

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