Mr Justice Moriarty ruled yesterday that he should hear evidence of the identities of holders of the Ansbacher accounts in private.
The judge, the sole member of the Tribunal of Inquiry, said it would be necessary to obtain factual information of a banking nature about these accounts, and it was likely this would involve the disclosure of information concerning a considerable number of individuals. Some of them might become involved in the public proceedings.
People would have to be put on notice about the discovery of confidential documents. In order to identify them and afford them constitutional protection in the light of the Supreme Court decision, it was the view of the tribunal that it was necessary to obtain evidence on oath, and this should be heard on the basis of the exclusion of the public. This was to protect the rights of those whose names might be mentioned.
Mr Frank Clarke SC, counsel for the public interest, said the most important matter was the view of the tribunal on the stage of the proceedings at which this evidence needed to be introduced.
He said the Supreme Court identified five stages in the work of the tribunal. The first was the preliminary investigation. The second was the determination of what evidence was relevant. The third was the service of such evidence on the person likely to be affected. The fourth was the hearing of the evidence in public, and the fifth was the preparing of the report.
The question of a private hearing arose at stages one and four, but very different considerations applied depending on which stage was involved. "It seems clear that the Supreme Court thought that the public was not entitled to be present at stage one. At stage four they are entitled to be present unless there are very compelling reasons why not," he said.
It was not clear, in relation to the question of the identity of the account-holders, whether this would be evidence as part of the tribunal's investigations or part of the initial process.
If the sole purpose was to identify matters to see whether they were relevant, it would seem it came within the first category. This should be clarified.
Mr Clarke also said it was relevant to know whether other parties would be present and entitled to cross-examine, or if these witnesses would be heard in private with just the tribunal present.
Mr Eoin McGonigal SC, for Mr Charles Haughey, said he understood this was part of the tribunal's preliminary investigation and there would be no one before the tribunal except the witness.
Counsel for the tribunal, Mr John Coughlan SC, said this evidence was part of stage one. Only the witness and his or her legal advisers would be present. He added that the identity of the witnesses should not be indicated at this stage, as their evidence might or might not be relevant to the work of the tribunal later on.
Making his ruling, Mr Justice Moriarty said he would exclude the public for the rest of the day, explicitly on the basis that it was part of phase one of the inquiry's work. He said he made this ruling reluctantly, aware that the generic nature of the inquiry was that it was a public inquiry. The Supreme Court had ruled on the privacy of interested persons.