The High Court has dismissed Michael Lowry’s application for judicial review seeking to prohibit the continuation of his prosecution in the Circuit Criminal Court. Mr Justice Noonan delivered judgment on 23 February 2016.
The prosecution concerns five counts against Mr Lowry, including alleged tax offences involving Garuda Limited and an alleged failure to keep proper company books. The charges relate to a commission payment of €372,000 due to Garuda in 2002. The prosecution alleges the payment was diverted to an Isle of Man account, omitted from Garuda’s 2002 accounts and later recorded as having been earned in 2006. These are allegations; the judicial review did not determine guilt or innocence.
Mr Lowry argued that the prosecution had become unfair after the Appeal Commissioners reduced his personal income-tax assessment to zero. He also relied on publicity about recordings known as the “Lowry Tapes”, the publication of a note he had given to the Taoiseach, complaints about Revenue search warrants and alleged disclosure of taxpayer information, and the transfer of his trial from Tipperary to Dublin. He sought to halt the case, including pending investigations into the alleged disclosure and a dossier referred to as the Gerard Ryan dossier.
The respondents argued that the tax appeal did not dispose of the criminal charges. The High Court noted that the Appeal Commissioners’ decision was subject to a request for a case stated to the High Court and that the possibility of a further tax assessment remained. It also said the decision concerned Mr Lowry’s personal income-tax assessment and did not determine the company-related counts.
The court held that judicial review could not be used to decide in advance whether Mr Lowry was guilty or to replace the jury’s role. It found that the amount of tax ultimately paid or due did not determine whether the charged offences had been committed. The court also concluded that the publicity described did not establish a real risk of an unfair trial that could not be addressed by jury questions, warnings or directions. It said the outcomes of the cited investigations could not determine the criminal case.
The judgment further rejected the challenge to the Dublin venue. The earlier transfer had been ordered by a Circuit Court judge under section 32 of the Courts and Court Officers Act 1995, which the High Court said made that decision final and unappealable. The judicial review could not serve as an appeal against it.
The High Court dismissed the application. It did not decide the criminal charges, which remained for trial.