A decision on whether to prosecute Mr Charles Haughey for allegedly obstructing or hindering the work of the tribunal could be taken by the Director of Public Prosecutions within a short time, legal sources said last night. In the report, Mr Justice McCracken said the tribunal intended to send papers to the DPP, Mr Eamonn Barnes. These papers have not yet been sent, but a tribunal source said last night that they would be sent "shortly". The papers concern Mr Haughey's attitude and behaviour towards the tribunal. The DPP then has absolute discretion whether he will initiate a prosecution.
The time taken by the DPP in making a decision varies considerably, and depends both on the complexity of the case and the priority attached to it. Several legal sources said last night the issue in this case appeared straightforward, and a decision should not take a long time.
In considering whether Mr Haughey should be prosecuted, the DPP will undoubtedly be considering Section 1(2) of the Tribunals of Inquiry (Evidence) Act 1921 as amended by the Tribunals of Inquiry (Evidence) (Amendment) Act 1979. It includes the following:
"If a person . . . by act or omission, obstructs or hinders the tribunal in the performance of its functions . . . the person shall be guilty of an offence."
In the report, Mr Justice McCracken outlines a series of acts and omissions which might be considered by the DPP in light of the above.
First, the acts. In a letter to the tribunal on March 7th, 1997, Mr Haughey denied that he or any member of his family had received any payment from Mr Ben Dunne or Dunnes Stores other than a number of relatively small donations. This was untrue and he knew it to be untrue. He conceded finally that he had received the £1.3 million as alleged by Mr Dunne, and that he had known about this since 1993.
Even when conceding this (but initially only "as a matter of probability"), there was a second act which was unhelpful to the tribunal: the furnishing of a statement denying he had received three bank drafts worth a total of £210,000 sterling in person from Mr Dunne. This statement was made on June 30th to the tribunal by Mr Haughey's counsel on Mr Haughey's instructions. On July 7th, a statement to this effect from Mr Haughey was given to the tribunal, although two days later his counsel was to concede it was untrue.
The omissions were more numerous. On March 27th, the solicitor to the tribunal wrote to Mr Haughey seeking information about debts of his that may have been paid out of payments to him by Mr Dunne. The solicitor also asked him for a statement dealing with the payments to him as outlined by Mr Dunne. In response, Mr Haughey simply asserted that the documents in the possession of the tribunal didn't prove anything. He did not furnish the information requested.
On April 19th, April 29th and May 15th, the solicitor to the tribunal wrote to Mr Haughey again seeking the same information. Mr Haughey replied to the first and third of these letters, but without furnishing the information requested. He didn't reply to the second. Further correspondence ensued to no avail.
An early concession by Mr Haughey that he had received the money could have saved the tribunal considerable work and expense. Faced with the blanket denial, the tribunal team painstakingly trawled through banking records, interviewed various bankers and accountants, went to London to take evidence and became involved in lengthy court proceedings in the Cayman Islands - which are still continuing - in an effort to find the truth.
It was only when the tribunal team had pieced together the money trail from Mr Dunne to Mr Haughey and successfully penetrated the extraordinarily secretive world in which this money was handled, that Mr Haughey finally owned up.