A claim by the Criminal Assets Bureau that it had privilege and therefore should not hand over documents being sought by the tribunal was rejected by the chairman yesterday.
In his ruling, Mr Justice Flood stated: "The decision of the tribunal is that it does not accede to the claim of privilege made by the Bureau."
However, he said that the CAB had made it clear that it would challenge the matter in the High Court if his decision went against it. This would involve yet more delay and significant public cost. He agreed to a CAB request that it be given a three-week stay before starting the legal proceedings.
In his ruling, the chairman described how on April 13th last he made an order seeking the production of certain documentation in the possession of the CAB, but the CAB had claimed privilege.
When the chairman rejected the claim, the CAB challenged the decision in the High Court on the grounds that a tribunal had no jurisdiction to decide a claim of privilege. The High Court dismissed the CAB's claim and the Supreme Court upheld that ruling.
On July 26th and 27th, the tribunal heard evidence on the matter. Having reviewed the evidence, the chairman decided to inspect the copy documentation produced by CAB. On August 3rd last, he had the tribunal registrar remove two sealed boxes from the tribunal safe and bring them to his room.
"The registrar opened those boxes in my presence and at my direction. I, alone, had access to the contents of these boxes," he said. When he had completed his inspection, the boxes were resealed and returned to the safe. "In my view significant portions of the material I viewed in those two boxes are crucial to the work of this inquiry," the chairman stated. "I am also satisfied that it is essential for the proper discharge of the mandate of the tribunal of inquiry that the tribunal has access to this copy documentation. In my view it is clearly in the public interest that the tribunal have access to this documentation," he said.
The CAB produced the copy documentation as required by the tribunal. Det Chief Supt Fachtna Murphy, the Chief Bureau Officer, gave evidence to the tribunal and reiterated his claim of privilege.
He confirmed that copies of the documentation sought by the tribunal had previously been voluntarily provided by CAB to Fingal County Council and Mr George Redmond.
The chairman said that it appeared there were no documents sought by the tribunal from CAB which were not either given to the council or Mr Redmond.
The tribunal obtained copies of the documents from Fingal County Council. The balance of the copy documentation sought was that provided by CAB to Mr Redmond.
The tribunal had been unable to obtain this copy documentation from Mr Redmond and there were proceedings instituted by the tribunal against him pending in the High Court.
"This documentation is sought urgently by the tribunal in relation to the `corruption' aspect of the terms of reference of this inquiry. The work of the tribunal is being seriously delayed by its non-production. This is damaging to the effectiveness and the expedition of the inquiry, and it is also adding to the tribunal costs," the chairman said.
When the tribunal was established in November 1997, it had no documentation or evidence in relation to planning corruption. During 1998 the tribunal in its preliminary investigations in private made significant progress in researching this area.
Prior to the establishment of the tribunal there had been two major Garda investigations into planning corruption which did not result in criminal prosecutions, in which context the significance of the work of the tribunal could be appreciated, the chairman noted.
He was not being critical of the gardai. The tribunal had the benefit of wide statutory powers to seek documents which were not available to the gardai. The Garda Commissioner made documentation and Garda personnel available to the tribunal, which helped the tribunal's inquiries.
A tribunal was not a substitute for the gardai, nor did it have the role of collecting outstanding taxes. The tribunal did not make any individual accountable to either the civil or criminal law and the legislation provided a form of criminal immunity to individuals giving evidence.
In contrast, CAB was solely concerned with making individuals accountable to the law.
The CAB had established three distinct categories of investigation: one criminal, and two civil. These were continuing with the additional consideration that the DPP was presently prosecuting Mr Redmond for his alleged failure to make tax returns.
"The Bureau will only consider providing the documentation sought by the tribunal when it is satisfied that it has no further interest in the documentation," the chairman said.
The chairman said he was not satisfied that the public interest associated with the civil investigations aspect of the CAB's claim of priivilege would rank as superior to the public interest associated with the tribunal.
The claim of privilege made by the CAB was very general in nature. "In the circumstances, I am not satisfied to accord to the Criminal Assets Bureau the priority of public interest that they seek to assert over the documentation sought by the tribunal."