The section of the Tribunal of Inquiries legislation to which Mr Justice McCracken has drawn the attention of the Director of Public Prosecutions might seem fairly straightforward. It provides that if any person "wilfully gives evidence to a tribunal . . . which he knows to be false or does not believe to be true", then that person commits an offence. It might seem, too, given the circumstances, that securing a conviction would be rather plain sailing.
It is only when one reads on to the section dealing with punishment that the difficulties arise. These provide that a person may be tried in either of two ways. First, on indictment - that is before a jury in the Circuit Court - where there is a maximum sentence of two years' imprisonment and/or £10,000 fine. Alternatively, the person may be tried summarily, without a jury and with a lower penalty, provided that both the district judge and the accused agree to this apparently more lenient course of action.
Consent may be difficult to achieve, however, and consequently there would have to be a jury trial. And, since for a conviction at least 10 jurors must support the verdict, the net result is that if even three jurors stand out against the majority, there will be no conviction (though, theoretically, there could be a retrial). Some readers may ask how, in such an open and shut case as the present one would surely be, three jurors could possibly take such a position.
However, given what would be portrayed as the politically charged nature of the case and the strength of the allegiance which some people pay to the potential accused, I wonder about this.
The entire point about a jury is that it does not have to give its reasons; nor is it responsible - at any rate to anyone in this world.
The Director of Public Prosecutions may also have his doubts. We shall see whether these will be strong enough to prevent him acceding to what, given their respective roles, should be characterised not as a recommendation, but as an authoritative suggestion, from the tribunal chairman. One thing is sure, if there were such a trial, the preliminary challenges from counsel on each side to remove unsuitable jury persons would be something wonderful to behold.
An intriguing possibility might be that if the DPP does not launch a prosecution, some public-spirited person, in the role of the common informer, (sometimes known as a private prosecutor), might do so. The snag with this suggestion is that a common informer can only take the proceedings as far as the preliminary inquiry in the District Court and not to the full trial in the Circuit Court.
What does not seem in doubt is that Mr Haughey will have to pay large sums in legal costs. The relevant provision here states that if, having regard to its findings as to the conduct of a person, it considers it equitable to do so, the tribunal may order that person to pay the legal costs of other parties. In the Whiddy tribunal, this was interpreted to mean the conduct of the person which was under investigation by the tribunal. However, at the Beef Tribunal, the view was taken that it was only if a person had misconducted himself, actually at the tribunal, that he would be required to pay his costs.
Even on this latter, more lenient test, Mr Haughey would have to pay costs. The only question would be whether he would have to stand only his own costs or whether - as the legislation certainly allows - the order would extend to the costs of other parties.
The case for this second possibility is strengthened by the fact that the usual principle on which the State is made to pay the costs of all other parties depends on the fact that it set up the tribunal and thus is responsible for the costs which flow naturally from it. But surely this principle would not cover the costs in respect of the additional period of the tribunal which was created by Mr Haughey's prevarication. There is a strong reason for saying he should be responsible for all the increased costs which flow from this.
Turning its attention to Mr Lowry, the report states, on more than one occasion, that he was guilty of "evading" tax. Mr Justice McCracken is, of course, familiar with the difference between "avoiding" (i.e. as a British judge remarked, arranging one's affairs so that the Revenue's shovel cannot sink too deeply into one's assets), and, on the other hand, evading tax. The latter is a criminal offence; the former is not.
If Mr Lowry were to be prosecuted (as opposed to merely being required to pay the tax with interest), as I think is unlikely for analogous reasons to those mentioned in the case of Mr Haughey, and if he were convicted, then he might come up against a so far unused provision of the Electoral Act 1992. This states that if any deputy is sentenced to six months' imprisonment or more, he automatically forfeits his seat.
The general conclusion which seems to be emerging from recent tribunals is that they produce, at best, information rather than retribution. If this is what a mature public wants, then they are perhaps of some service to the polity.