An unexpected move by the Attorney General yesterday could mean the end of an attack on the investigation into the Ansbacher deposits, writesColm Keena
Pity the two individuals who have tried to take a case anonymously in the High Court seeking to prevent their names being published in the report of the Ansbacher inspectors.
When the applicants had lost what everyone thought would be round one of the matter yesterday, the Attorney General's counsel stood up and said the applicants' names should now be revealed. The surprise request was not dealt with immediately and is to be returned to on Friday. Meanwhile, the two applicants can do nothing but consult with their lawyers, and sweat.
Mr Justice McCracken, in a written decision, gave a robust view that the two applicants could not take a case anonymously, and that the need that justice be heard in public far outweighed any concerns the unidentified duo might have about their privacy. Counsel for the two, Mr David Barniville, asked that no order be made until Friday when, having considered the matter, his clients could respond. What he had in mind, presumably, was the possibility of an appeal to the Supreme Court.
It was at that stage that Mr Feichin McDonagh, SC, for the Attorney General, rose. Now that the applicants had failed in their argument, he said, he would like to have their names revealed.
Mr Justice McCracken's initial reaction seemed to be one of surprise. He had, he said, agreed that the anonymous applicants could argue a point of law before him on the matter.
Mr McDonagh responded by raising the original decision, by the President of the High Court, allowing the application be made in the name of the applicants' solicitors, McCann Fitzgerald. The application had now been made. It had failed. Justice had now been administered in circumstances other than in public.
This of course was what Mr Justice McCracken had just ruled could not be allowed save in special circumstances which did not include those in which the applicants found themselves.
The demand that the names be disclosed could have the effect of truncating what had been set to be a long drawn-out affair and one which would delay publication of the Ansbacher report.
The applicants had signalled they might appeal the judge's decision on anonymity to the Supreme Court. However, the Attorney General will now insist that the applicants reveal their names if they make any such application and this raises the stakes considerably for the applicants. Mr Justice McCracken has said that, if the matter arises, it will be one for the Supreme Court to consider.
SHOULD the Attorney General fail in his application on Friday that the applicants' names now be revealed, he could consider an appeal to the Supreme Court. However he, also, may feel uneasy about doing so. Conceivably, the Supreme Court could give a ruling which would give comfort to the applicants.
Mr McDonagh, by demanding the applicants' names, may have checked progress of what was looking set to be a long drawn-out legal affair and one which would delay for some time the publication of the long-awaited Ansbacher report. The report is believed to be all but ready for publication, although publication in the course of an election campaign is thought unlikely.
Mr Justice McCracken, when adjourning the matter to tomorrow, said he did not know if the media knew who was behind the application but that he was sure they would hold off publication until tomorrow.
It may interest the judge to know that, not only do some members of the media claim they "know" the names, but so too have barristers in the Fourt Courts, senior bankers, senior business figures, politicians, senior civil servants and, of course, spin doctors who are "inside the loop". Furthermore, the two unidentified applicants have been variously described as senior members of the judiciary, senior bankers, medical consultants, former senior figures in the semi-state sector and wealthy businessmen from the Munster region.
It is in part precisely because of this human tendency to gossip and to convert rumour into information disclosed on good authority, that justice must not only be done but be seen to be done. Otherwise, the law can be brought into disrepute. This is the waters into which the courts have now strayed.
Mr Justice McCracken, in his ruling yesterday, said the applicants believed that, if they were named in the report, their names would be damaged in the public mind. However, he said, if they were named in the report as Ansbacher clients but "have done absolutely nothing either legally or morally wrong", they could sue any journalist who might draw inferences which were not justified.It is hard to imagine the applicants taking much comfort from those words.
