WHEN he first entered the witness box at the Circuit Criminal Court four weeks ago, Frank Dunlop was carrying a photograph of a teenage boy.
In 1998, his son Cathal died of cancer at the age of 16. During his long and often gruelling evidence at the Mahon Tribunal, Dunlop often carried a photo of his son into the witness box. He apparently drew strength from the image.
In 2006, he told tribunal reporter Lorna Reid: “I put that photograph there every time I am in the box. You would not tell a lie looking into those eyes.”
By then, Dunlop was spilling the beans on all the developers and councillors with whom he alleged he colluded to corrupt the planning process in the greater Dublin area. He had been cornered six years earlier, ’fessed up to his crimes, and had embarked, he claimed, on the road to Damascus.
In 2009, he pleaded guilty to a corruption charges, got an 18-month sentence and served 13. He agreed to help the gardaí with further prosecutions.
Now, all these years later, the main state witness in a criminal trial, facing a battery of hostile lawyers, and a number of defendants who despise him, he carried the photo again.
It’s a perfect narrative of redemption, except for the nagging doubt that kept popping up in the course of the trial that collapsed yesterday.
Was the former lobbyist really coming clean on all the corruption, or was he being selective on whom he fingered, and by implication, still mired in deceit?
The collapse of the trial of businessman Jim Kennedy, councillor Tony Fox, and former councillors Colm McGrath and Liam Cosgrave, realistically brings to an end any possibility of convictions arising out of the planning tribunal. The case against former senator Don Lydon collapsed earlier this week. Another former councillor, Sean Gilbride, died before the case came to court.
Fox, and all the former politicians, except Cosgrave, were named in the Mahon Tribunal report as having received corrupt payments in rezonings other than the one for which they were on trial. As far as the tribunal is concerned, these men are corrupt. In the eyes of the law, they are innocent.
Once more, the usefulness of tribunals will be called into question. The planning tribunal was established in 1997 and reported last year. It cost a lot of money, hundreds of millions, but the exact figure won’t be known for years. The report said that corruption affected “every level of Irish political life”, yet ultimately there has been no convictions, apart from that of Dunlop, who pleaded guilty. Once more, as so often in the past, nobody is really to blame for anything.
The trial that collapsed was concerned with a rezoning in Carrickmines, south Dublin, one of over a dozen rezonings in which Dunlop claims to have bribed councillors. The lands were owned by a mysterious company called Jackson Way. A number of people had an interest in the company, including Kennedy and the late Liam Lawlor.
Dunlop claimed that he had received £25,000 from Kennedy to be used to bribe councillors to vote for the land to be rezoned in 1992, and again in 1997. The land had huge strategic significance, being on the route for what was then the proposed M50.
The rezoning went through, muck sparkled into gold, the land shot up in value by an estimated €53m. And all because a slew of councillors believed the rezoning should go ahead, against the advice of the council’s planners.
The value of the alleged bribes was in sharp contrast to loot reaped by Jackson Way. Dunlop claimed that he paid Fox and Cosgrave £7,000 each and Lydon and McGrath £3,000 and £2,000 respectively.
That was the basis for the corruption charges. Everything, bar some circumstantial evidence about bank lodgments, depended on Dunlop telling how he was the conduit for bribes. Then, last week, he was struck with a serious heart issue, that, the medical people say, is exacerbated by stress. The trial spluttered on until yesterday, when the DPP finally threw her hat at it.
By then, however, Dunlop’s credibility, and by extension, the prosecution case, had taken a bit of a bruising. The bulk of the 12 days of evidence were taken up by the cross examination of Dunlop by Michael O’Higgins, defending Kennedy.
This wasn’t the first time the two men had faced each other across a witness box. Back in 2002, O’Higgins was representing Liam Cosgrave at the planning tribunal. On that occasion, he took his turn in a procession of lawyers who lined up to have their go at battering Dunlop’s credibility. O’Higgins didn’t get far on that occasion. This time around, it was different.
Now, armed with the Mahon Report, O’Higgins had plenty more to work with.
He began his cross examination asking Dunlop: “Are you an honest man?”
The witness replied: “Yes I am.”
“Were you always?”
“No, not always.”
O’Higgins went on to outline his belief that Dunlop’s Pauline conversion was not what it seemed, that he was selective in fingering some of the rezonings as corrupt, and others as kosher.
In particular, O’Higgins referenced a business park in west Dublin, Citywest, which had benefited from rezoning. Dunlop had a 5% stake in the venture, that had once been estimated to value €1m. How come that wasn’t the subject of bribes? Dunlop just said it wasn’t.
And then there was the major bone of contention, Quarryvale, the site that begat the Liffey Valley Shopping Centre. The Mahon Tribunal report had Quarryvale as probably the biggest example of corruption that it examined.
It found that Dunlop and the late Liam Lawlor devised a strategy to bribe councillors for their vote.
It also found that the developer, Owen O’Callaghan, “may have been initially a reluctant participant”, but that he “nevertheless embraced and adopted the strategy of corruptly engaging with councillors, as espoused by Mr Dunlop and Mr Lawlor”.
O’Callaghan rejected the findings of the tribunal, but last May, the High Court threw out his application to have the findings set aside.
The court heard that Dunlop gave statements to the Criminal Assets Bureau on seven corrupt rezonings, but nothing on Quarryvale, the biggie.
How come, O’Higgins kept asking Dunlop in the trial, he didn’t volunteer a statement on Quarryvale? Had it anything to do with the fact that O’Callaghan had paid him €1.8m over 10 years in relation to the project? Had it anything to do with the fact they remained friends? Dunlop had always claimed that, unlike many other developers he dealt with, O’Callaghan had no knowledge of the bribes.
“Mr O’Callaghan never said to me, did you give so-and-so money and how much?” Dunlop told the lawyer. “Mr O’Callaghan is a long-standing friend of mine. I speak to him quite frequently. These matters do not in any way obtrude.”
Yet the nagging question still hung in the air: Is Dunlop still protecting his friend, and if so, how does that impinge on his motivation to finger others for corruption? Can his evidence be fully trusted? The jury ultimately didn’t have to dwell on that matter.
For those whom Dunlop had fingered, this was the end of a long road. During the trial, they had positioned themselves at different locations in the public gallery. None of them sat where defendants usually do in the area which formerly served as the dock.
Liam Cosgrave sat near this area, aside from the public gallery, next to a prison officer. He has fallen far, the son of a taoiseach, grandson of one of the State’s founding fathers. Colm McGrath was usually dressed in short-sleeved shirts, and sat at the rear of the public gallery. He was once dubbed “Mr Insatiable” by Dunlop for, the lobbyist claimed, his hunger for money.
Tony Fox also kept to himself. He, alone among the public figures fingered by Dunlop, remains in politics, as an independent councillor. Either the voters in his corner of south Dublin have ignored the smell emanating from the tribunal over the last decade, or consider it irrelevant to Fox’s political attributes.
Don Lydon is 74 now and he usually attended unaccompanied. He was once a senator and a psychologist, employed in John of God’s, a psychiatric hospital for those suffering psychological trauma and addiction. At the tribunal, Dunlop claimed to have once bribed Lydon in his office, where he saw his clients. On Monday, following an allegation from Dunlop that he had given Lydon money on two rather than one occasion, he was discharged from this trial.
Jim Kennedy is father to a large family, and he was surrounded at the court by a protective cordon of men and women each day. Most prominent among them was his wife Antoinette, who once had to appear at the planning tribunal to explain why Jim was out of the country and wouldn’t be attending.
Since his arrest at Dublin Airport in Oct 2010, he had this trial hanging over him. Both he and Cosgrave brought High Court challenges to stop the trial, but were unsuccessful.
He can now return to his home in Gibraltar, no doubt relieved that this ordeal is behind him. For all of the defendants, the collapse of the trial closes a chapter in their lives that was opened in Apr 2000 when Dunlop began spilling the beans, after the tribunal discovered the bank account harbouring his slush fund.
Now they are free of any repercussions from Dunlop’s tribunal evidence. All have steadfastly maintained that they never did anything wrong, and in the eyes of the law, they remain innocent men.
For Dunlop, a chapter also closes. He has served his time, and served his pledge to give evidence in criminal trials. The Irish Examiner understands that he is deeply disappointed that the trial wasn’t completed, but his health issues are such that the DPP wasn’t willing to risk further time, money, and resources with a much diminished chance of successful prosecutions.
Only he knows how honest he has been. Only he knows the full secrets of the extent of the planning corruption of which he was a central cog. Only he knows the depth of the accommodation he has made with himself. Only he knows the whole story.
The Criminal Assets Bureau aren’t finished with this. The agency is now in a position to pursue a legal action it had initiated to confiscate the assets of Jackson Way on the basis that the lands were rezoned through criminal means. The case had been on hold while the criminal charges were outstanding. Jim Kennedy hasn’t seen the last of these boys yet.
There is also a footnote to the Mahon Tribunal report to come. Again, because of the criminal charges, the report issued in March of last year redacted the module on Carrickmines. That can now be published.
It will be interesting to observe the findings of the tribunal, compared to the result in the criminal trial. The latter has concluded with the innocence of the defendants unblemished.
The tribunal’s view of things, governed by different parameters, may well differ.