Independent TD Michael Lowry has been subject to "unprecedented" State scrutiny for 20 years and his prosecution on tax charges contrasts with failure to charge even one Ansbacher account holder, the High Court has heard.
An article alleging Mr Lowry passed a note in the Dáil to Taoiseach Enda Kenny seeking a "crony" appointment was also part of a sustained campaign against him by the Sunday Independent newspaper, Patrick Treacy SC, for Mr Lowry, said.
There was also an “utterly wrong” and “deeply humiliating” search, involving eight Revenue officials, of the TD’s Co Tipperary home which included going through his bedroom, clothing and cutlery, counsel said.
Mr Lowry was not home at the time and a woman in the house went into hiding, believing the Revenue team were burglars, counsel said. When found in the bedroom, she was “very upset” and had to be given a glass of water. Details of that search were wrongly disclosed to the media, counsel added.
When a warrant was sought authorising that search, the District Court was not told the application arose from a complaint made to the Criminal Assets Bureau in February 2013 by Dr Elaine Byrne, Ms Treacy said.
Dr Byrne was then a journalist with the Sunday Independent and her complaint concerned material in the "Lowry tapes", a recording of a purported conversation in 2004 between Mr Lowry and Omagh accountant Kevin Phelan.
On these and other grounds, it was oppressive and “utterly unfair” for the DPP to continue with Mr Lowry’s prosecution and the court should halt it, counsel told Mr Justice Seamus Noonan.
Mr Lowry was last year found by a Revenue Appeals Commissioner to have no personal income tax liability arising from the 2002 transaction which lead to this prosecution, counsel said. While the basic penalty for a disputed surcharge on a corporate tax liability of his company, Garuda, was €125, he added.
Mr Treacy was continuing his arguments in Mr Lowry's judicial review challenge aimed at halting his forthcoming trial over alleged tax offences. The DPP previously secured an order transferring the trial from Tipperary to Dublin Circuit Criminal Court. The trial remains stayed pending the High Court case.
The court has heard a Revenue Appeals Commissioner found last year Mr Lowry has no personal income tax liability arising from the transaction which lead to the prosecution, a €372,000 payment of August 2002.
The court heard the €372,000 payment was due to Garuda by a Finnish company, Norpe OY, and, on the direction of Mr Lowry, was paid into an Isle of Man trust account held by Kevin Phelan.
The only outstanding disputed liability is a surcharge corporate tax liability of €2,400 for his company Garuda, Mr Lowry contends.
Mr Lowry denies charges of allegedly filing incorrect income tax returns for the year 2002 and conniving in the alleged delivery by Garuda of incorrect corporation tax returns for the years ending 2002 and 2006. He also denies a charge, brought under provisions of the Companies Act, of wilfully causing a company to failing to keep proper books of account between August 28th, 2002 and August 3rd, 2007.
In submissions, Mr Treacy said Mr Lowry accepted certain findings were made against him by the Moriarty tribunal but contended he had come under an “unprecedented” level of State scrutiny for some 20 years.
This prosecution was “particularly oppressive” when Mr Lowry has no convictions, enjoys a presumption of innocence and is a very successful politician in his constituency entitled to be treated with dignity and not in an unfair, irrational and inconsistent manner, counsel said.
Mr Lowry's trial was also prejudiced by "utterly exceptional" and "unwarranted" articles in the Sunday Independent, counsel argued. The newspaper had a "history of animus" towards Mr Lowry before it began publishing from February 2013 a series of articles concerning the "Lowry tapes".
Mr Treacy said the newspaper also reported in 2015 Mr Lowry passed a handwritten note to the Taoiseach in the Dáil on January 21st, 2015. It appeared that note was left behind on the government benches and later given to the Sunday Independent.
The court previously heard the note asked Mr Kenny to consider reappointing Mr Lowry's former PR adviser Valerie O'Reilly to the board of the National Transport Authority, describing her as bright and intelligent "and not bad looking either".
Mr Treacy said it was particularly unfair that “innocuous” note was published in an article entitled: “Michael Lowry, Enda and a nice job for the lovely girl” when it was known Mr Lowry had been sent forth for trial on tax charges. Mr Lowry had made a complaint to the Dáil Committee on Procedure and Privileges but had heard nothing.
Counsel disputed arguments by the DPP Mr Lowry was advancing a “fantastical conspiracy theory” in these proceedings.
Remy Farrell SC, for the DPP, will begin opposing arguments in the case on Thursday.
