In the Supreme Court today, the Criminal Assets Bureau will move to appeal a High Court decision that the Flood tribunal has jurisdiction to determine whether CAB has privilege over documents seized from former Dublin assistant county manager Mr George Redmond. The documents are sought by the tribunal. In his reserved judgment on CAB's claim that the tribunal itself could not determine whether the documents in CAB's possession were privileged, Mr Justice McCracken directed the issue of privilege should be reconsidered by the tribunal in the light of his finding that the tribunal had correctly held it has jurisdiction to determine the dispute.
In that context, he set aside the tribunal's order that the documents were not privileged.
Later yesterday, counsel for CAB indicated they would go to the Supreme Court today to seek an early date for the hearing of an appeal against the High Court judgment. There is unlikely to be any reconsideration of the matter at the tribunal pending the outcome of the Supreme Court appeal.
The Chief Bureau Officer of CAB, Det Chief Supt Fachtna Murphy, had taken proceedings against the Flood tribunal after it demanded documents seized by CAB from Mr Redmond. By orders of January 26th and February 19th last, the tribunal required Mr Redmond to make discovery on oath of all documents in his possession relevant to the inquiry. Mr Redmond claimed he was unable to comply with the order because the documents had been seized by CAB.
Mr Redmond was arrested by CAB officers at Dublin Airport and subsequently his house was searched and certain material and documents were seized by CAB. The tribunal then requested CAB to furnish copies of all documents seized from Mr Redmond and sent a consent to this action, signed by Mr Redmond, to CAB. Privilege over the documentation was claimed by CAB. It submitted it was material obtained for the detection of crime and for the statutory remit of CAB. To furnish it would almost inevitably prejudice both the investigations and fair trial of any person or persons who may be prosecuted or otherwise proceeded against from the investigations.
When asked by the tribunal for the basis of the claim of privilege, Chief Supt Murphy refused to answer any further questions on grounds that he was advised it might or would compromise any claim of privilege. On April 19th last, the tribunal heard legal submissions from the parties. Counsel for CAB stated he had specific instructions not to argue for privilege under any heading. He argued the issue of privilege was a matter for the courts and not the tribunal to determine. That was the sole extent of the arguments made on behalf of CAB.
On April 24th, the tribunal chairman rejected the argument that the tribunal could not determine the issue of privilege. The chairman stated he was satisfied the order was properly made and that no adequate factual or legal basis had been advanced by CAB in support of privilege.
In the High Court, CAB submitted that only a court could determine the competing claims of disclosure and non-disclosure. CAB argued that a claim for privilege was part of the administration of justice and could be determined only by the courts.
The tribunal argued that under its terms of reference it was required by the Oireachtas to inquire fully into all matters referred to in the terms of reference. It had a statutory duty to obtain the relevant evidence and its duties or powers in this regard were not curtailed by any statutory provision.
Mr Justice McCracken said at this stage he was considering only whether the decision of privilege should be made by the tribunal or the courts. He was not considering what that decision should be.
He held that the tribunal had jurisdiction to make a decision on whether documents were privileged. However, having read the transcript of the case, as the chief superintendent had specifically restricted arguments to the question of jurisdiction, he did not have an opportunity to put forward the substantive arguments in favour of privilege.
His failure to do so was a matter of his own choosing. But, Mr Justice McCracken said, the chief superintendent was entitled to take the course he took and the tribunal's decision as to privilege was made without hearing CAB's full arguments.