Many will survive the Flood

SECURING successful prosecutions against Flood Tribunal witnesses for corruption may prove difficult despite the inquiry’s damning findings.

The Director for Public Prosecutions is studying the report and it will be up to him to press charges in the months ahead.

But antiquated Irish laws on corruption, the main body of which date back to 1889, 1906 and 1916, state that a corrupt act is where an office holder took a bribe in return for doing an act.

For a successful prosecution, a jury will have to believe beyond a reasonable doubt that this act occurred.

The maximum penalties under the legislation are jail sentences of up to 10 years and/or fines of up to 64,000.

The Garda Síochána will not be able to use the content of the Flood Tribunal report as evidence, but will be able to use it as a guide in its investigations.

This means all relevant witnesses will have to be interviewed again after which the DPP will have to decide what crimes were committed and if there is evidence to prove them.

This may prove difficult as Mr Justice Flood made conclusions of corrupt actions based largely on “reasonable inference” and “balance of probabilities” in the absence of any compelling written proof of wrongdoing.

Gardaí will therefore have to identify what was done and get witnesses to swear upon this in court.

Witnesses in a court of law, however, have a right to silence and cannot be compelled to give evidence in a criminal trial.

The gardaí have some powers to force those accused of crimes of giving accounts of their whereabouts, but this power doesn’t extend to witnesses.

The Flood Tribunal’s conclusions are not those of a court and it cannot impose any sanctions on its own. Its main task is to report to the Oireachtas on matters defined by that body.

Securing successful prosecutions for obstructing or hindering the work of the Tribunal should be a more straightforward affair.

This area is covered under 1997 legislation which sets out clearly what amounts to obstruction of a tribunal.

Anyone found guilty of obstructing a tribunal of inquiry faces a maximum of two years in jail or a 12,700 fine.

No one has yet been prosecuted under the legislation. Former Fianna Fáil deputy Liam Lawlor was technically jailed for failing to act on High Court order rather than under tribunal-related legislation.