Privilege and Confidentiality

November 20, 2015

“Na habair faic agus na scriobh faic, mar nuair a cuireann tu an dubh ar an gheal ta tu fuckalta a bhuachaill”

where_does_all_the_money_go___pavel_constantinWhen does a right cease to become a right protecting the public good and instead become a right to cover up and commit crimes against the public good?

The Financial Crisis Inquiry Report in the US took 2yrs to produce:

“The Commission’s statutory instructions set out 22 specific topics for inquiry and
called for the examination of the collapse of major financial institutions that failed or
would have failed if not for exceptional assistance from the government. This report
fulfills these mandates. In addition, the Commission was instructed to refer to the attorney
general of the United States and any appropriate state attorney general any
person that the Commission found may have violated the laws of the United States in
relation to the crisis. Where the Commission found such potential violations, it referred
those matters to the appropriate authorities. The Commission used the authority
it was given to issue subpoenas to compel testimony and the production of
documents, but in the vast majority of instances, companies and individuals voluntarily
cooperated with this inquiry.

In the course of its research and investigation, the Commission reviewed millions
of pages of documents, interviewed more than 700 witnesses, and held 19 days of
public hearings in New York, Washington, D.C., and communities across the country
that were hard hit by the crisis. The Commission also drew from a large body of existing
work about the crisis developed by congressional committees, government
agencies, academics, journalists, legal investigators, and many others”

In contrast our banking inquiry into Ireland’s financial meltdown due to the limited powers restricting its terms of reference risks by way of privilege and confidentiality legal restraints, becoming a watered down cover up.

There was hope that a more targeted and precise probe initiated with the appointment of Justice Cregan into deeply questionable transactions involving the sale of assets by NAMA, would bear more fruit.

It has taken Justice Cregan nearly 6 months to produce a judgement that his investigation is botched hampered by the problems he outlines below:

The problem with Siteserv:

187. “That Dáil Eireann: notes that: — in 2012, Siteserv owed €150 million to Irish Bank Resolution Corporation (IBRC); — in March 2012, IBRC sold Siteserv for €45 million; — external trade buyers were excluded from the sale of Siteserv and there are questions about due diligence; — some bidders were also excluded from the sale and may have saved the State some money; — Siteserv shareholders received €5 million at the time of sale; — there are genuine concerns about the sale of Siteserv for €45 million by IBRC; and — Department of Finance officials have raised concerns about other IBRC sales as well; acknowleges: — the huge public concern about the sale of Siteserv; — the dissatisfaction that information, obtained through Freedom of Information (FOI), highlighted that relations and trust between the IBRC and the Secretary General, as well as officials in the Department of Finance, had broken down; and — there are now concerns about other sell-offs by IBRC; condemns the appointment of KPMG to undertake a review of transactions in IBRC as they advised Siteserv during the sale and there are public concerns about a possible conflict of interest; and calls for an independent commission of inquiry to be set up to examine the circumstances surrounding and leading to the sale of Siteserv in March 2012, and other company sell-offs by IBRC so that the interest of the taxpayer can be fully protected and transparent.” — Michael McGrath, John Browne, Dara Calleary, Niall Collins, Barry Cowen, Timmy Dooley, Seán Fleming, Colm Keaveney, Billy Kelleher, Seamus Kirk, Michael P. Kitt, Micheál Martin, Michael Moynihan, Charlie McConalogue, John McGuinness, Éamon Ó Cuív, Willie O’Dea, P.T.O. (3)

Justice Cregan  has produced an interim report highlighting significant problems that obstruct his investigation. (4)

“The largest six transactions being examined involve write-offs of more than €100m while the next six involve losses greater than €50m, while it has also emerged a separate 156 transactions where losses of €10m or more were recorded are outside the scope of the inquiry’s timeframe.

As a result of the difficulties, Judge Cregan has recommended that individual sales could be isolated and examined by different commission members. However, he has concluded that under the current terms the inquiry could take “several years” and “result in substantial costs”.

The judge has recommended legislative changes to overcome claims of confidentiality by some parties.”(5)

There are questions over the advice given to Government when it set up the inquiry.

The government should appoint a tribunal of investigation of three judges and report on Siteserv before the next general election.

Investigation into the remainder of transactions should be mounted with decision on their terms of reference following initial Siteserv report.

The commission should prioritize an investigation into the Siteserv transaction. Legislation could be enacted overnight giving a tribunal of 3 judges the power to make a majority decision on any claims re privilege and confidentiality in regard to the public good.

This would firm up powers given to the banking inquiry.

Siteserv investigation with work already completed could become the basis for the first of a series of minority reports before a majority report required in specific time frame of 12 months.

The practice of tribunals of investigation a boon to the legal profession taking years instead of months to complete for a small island with a relatively small population compared to UK or US similar inquiries, must be curtailed on the basis of costs and common sense and the risk of corruption of the legal profession itself.

In summary, to avoid legal challenges, judges with impeccable experience, a tribunal of 3, can be given powers to decide whether legal privilege and the right of confidentiality, should favour the public good or the opportunity of individuals and companies and institutions, to commit crimes against the public good and have their actions concealed from the law.


(3) A person shall not require the disclosure of a confidential
communication other than—

(a) with the consent in writing of the member who made or
received the communication, or

(b) subject to subsection (4), where it is determined by the
Court, upon application being made to it under this
section, that the disclosure is relevant to the investigation
of any offence alleged against the member, or is essential
by virtue of an overriding public interest arising in the
context of proceedings before a court, tribunal, commission
or Part 2 inquiry.

(4) The Court shall, in determining under paragraph (b) of subsection

(3) whether or not it should make an order providing for the
disclosure of a confidential communication made by or to a member,
have regard to—

(a) the extent to which the communication relates to a matter
of public importance or public interest,

(b) the rights and interests of any member affected,”

If required, immediate legislation reinforcing the above and authorising a number of judges to exercise similar powers in loco parentis to that of the courts  “by virtue of an overriding public interest arising in the context of proceedings before a court, tribunal, commission”, should be enacted.

To give opportunity to those who would evade justice in the concealment of possible crimes in the opinion of a High Court judge, is a scandal and affront to our constitutional democracy.

There are specific circumstances when the constitutional rights of the individual or company or institution, should be set aside in favour of the right of the public good.

It should be satisfactory that such unique decision-making should be entrusted to a tribunal of 3 judges empowered to balance those rights in the specific context of a tribunal of inquiry or special investigation.

Meanwhile Irish businessman Denis O’Brien has scrapped the potential $2 billion flotation of his Caribbean and Pacific islands telecoms company Digicel less than 72 hours before its shares were due to begin trading in New York. There are questions over the awarding of the mobile phone license and concerns over his acquisitions in media and the right to free speech.

Fintan O Toole writing in the Irish Times,(6) echoing concerns re O’Brien’s efforts to curtail free speech and his media acquisitions “I have never, in 37 years in journalism, come across any editor in any country who would not regard the banning of a report of a parliamentary debate as an attack on the most basic function of the media in a democratic society.”

If he has nothing to hide, he should welcome transparency.

I share growing concern that the truth involving corruption and abuse of the public interest as soon as unearthed is being buried by those hiding it. (7)

The scandal of politicians evading tax brought by a whistleblower with supporting documents has not seen the light of day(7). It would appear insiders have a large wagon train of means to hide corruption encircling them. Lancing the boil of corruption should be tackled with renewed energy by those who seek the public good.

Digicel is loaded with dollar debt from companies trading in currencies other than the dollar. That debt is growing as both deflation in Europe and in the US in increasing. The euro has taken a large fall against the dollar exchange rate.

The bubble in bond markets and stocks and shares of recent years fuelled by QE1 and QE2 and QE3 is running out of Q’s to support it.

Japanese recession beckons for the euro area even before the current refugee crisis.

In which case there are many more bubbles other than O Brien’s Digicel that will POP.

But that is another story.

till again










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