The following is the statement made by the chairman of the tribunal, Mr Justice Brian McCracken:
LADIES and gentlemen, there has been much discussion over the past couple of days as to whether or not the terms of reference of the tribunal should have been broadened or extended. There have been various reports of what attitude the tribunal takes to any such proposed extension and I think it may be helpful if I indicate the attitude of the tribunal:
It has been reported in varying ways that there has been contact between the Taoiseach or the Taoiseach's office and the tribunal or that there has been contact between the Attorney General and the tribunal. I want to make it clear that there has been absolutely no contact of any sort whatsoever between the Taoiseach or anybody in the Taoiseach's office or on behalf of the Taoiseach's office with me as chairman of the tribunal or any member of the tribunal legal team or anybody on behalf of the tribunal.
Equally, there has been no contact on behalf of the Attorney General. There were, yesterday evening, informal telephone contacts between the Attorney General and counsel for the tribunal which was for the purpose of informing the Attorney General of the tribunal's views on any proposed extension to the terms of reference.
I wish to now deal with the following matters. First, it is not correct to say that the tribunal requires its terms of reference to be extended to enable it to complete the task which has been given to it under the present terms of reference. The tribunal's task is to inquire into payments which may have been made by or on behalf of Mr Dunne or Dunnes Stores to, broadly speaking, public representatives over the 10-year period from 1986 to 1996. The tribunal does not need any extension in the terms of reference to complete that task.
Second, the tribunal team had, of necessity, to follow a variety of leads and investigate a variety of matters, persons and accounts in order to uncover information which is relevant to its work. Of necessity, this meant that the tribunal team became aware of information and was given documents which, after further investigation, transpired not to be relevant to its terms of reference. This is because some avenues of inquiry which looked initially fruitful turned out not to be relevant and because some inquiries had to be made for the purpose of eliminating certain matters and transactions from the tribunal's inquiries.
It was made clear from the very beginning that any such information or documents given to the tribunal, whether under the compulsion of a discovery order or otherwise, would be treated by the tribunal in the strictest confidence and that information which was obtained by the tribunal but transpired not to be relevant for the purpose of its inquiries would not be made public.
I think I should quote from the document or memorandum which I read on the first day the tribunal sat in relation to this matter, and I just intend to read two paragraphs from it. We stated at that time "that the tribunal recognised that parties who submit documents, or who may be referred to or whose affairs may be referred to in documents submitted by other parties have a legitimate interest in ensuring that confidential or sensitive information, whether of a commercial or other nature, which is not relevant to the terms of reference of the tribunal, is not made public or available for public scrutiny, either now or at any time in the future.
"At all times the tribunal will strive to ensure as far as reasonably practical and consistent with the task which has been imposed on the tribunal that the aforesaid legitimate interests of the parties be respected."
And on that occasion I also said, "that after the tribunal has made its final report, it will intend to return all original documents and destroy all copies but the tribunal reserves the right to retain such documentation for such a period as the tribunal may think fit, having regard to the risk of any litigation which might arise involving the tribunal. All such documents will be securely retained and in due course returned or destroyed."
The documents and information which the tribunal team obtained in the course of its work was obtained expressly on this basis. If the terms of reference were now to be broadened or extended so that information, previously furnished with the assurance of confidentiality to which I have referred, would now become relevant to some broader inquiry, then the banks, companies and other persons who furnished such information and documents would, in the tribunal's view, feel rightly and properly aggrieved that the undertaking as to confidentiality which was given to them was being breached and that the tribunal process was in this fashion being abused.
Not only would this put me as chairman and the tribunal legal team in an impossible position vis-a-vis the persons who have co-operated with the tribunal, but it may well also have ramifications for the extent to which parties will be prepared to co-operate with tribunals in the future. And for the whole process of tribunals of inquiry. I and the tribunal legal team believe that it would be ethically improper and perhaps impossible for us to participate in any such extended inquiry.
Third, in the circumstances of the present tribunal, certain persons have taken up positions and adopted certain courses of action on the basis that she tribunal's terms of reference are as they are. If those terms of reference are to be changed, then there is a significant danger that the rights of persons who have co-operated in varying degrees with the tribunal and have adopted certain courses of action may be infringed. If so, there is a real risk that much of the w6rk which the tribunal has accomplished to date could be set at nought.
Fourth, there appears to the tribunal to be a question mark over whether it is legally possible to extend the terms of reference of an existing and sitting tribunal. This is, however, a matter for the Government and the Government's legal advice.
Finally, there has been much speculation as to what information is available to the tribunal in relation to what is commonly referred to as the Ansbacher deposits. A number of things need to be said about this.
In the first place, evidence has yet to be given in relation to the operation of the Ansbacher deposits, how and why they came into existence and so forth. It does not seem to the tribunal that decisions in terms of the scope of inquiries such as this should be taken until all the evidence has been given and I have reported to the Oireachtas. At that point, the Oireachtas will be in a much better position to judge what steps it wishes to take, which steps are entirely a matter for the Oireachtas and not for the tribunal.
In the second place, while the tribunal has, as an incidental by-product of its inquiries into payments made by Mr Dunne or Dunnes Stores, come into possession of some information which indicates the identity of at least some of the persons who are or were the beneficial owners of some of the money in the Ansbacher deposits. It is not correct to say that the tribunal is aware of all or indeed most of the names of the beneficial owners.
The tribunal therefore does not know whether the beneficial owners of these monies include any public representatives or whether any payments were made out of those deposits to any public representative save Mr Haughey.
However, it is fair to say that on the basis of the information available to the tribunal, the tribunal has no reason to believe that any public representative, with the exception of Mr Haughey, benefited from the Ansbacher deposits.
Furthermore, the limited information available to the tribunal as to the background and circumstances under which the Ansbacher deposits appear to have come into existence does not give rise to any particular reason for thinking that they came into existence and were operated for the purpose of benefiting public representatives.
In the third place, if, for whatever reason, the Oireachtas did wish to ascertain the names of the beneficial owners of the Ansbacher deposits, it appears to the tribunal that it is unlikely that this could be done unless the court in the Cayman Islands would give effect to the letter of request which the tribunal has sent to the Grand Court in the Cayman Islands or a similar letter of request which might be expressed in more broad terms.
The principle would therefore have to be established that the court in the Cayman Islands can and will act upon a letter of request from a tribunal such as this one. The Grand Court of the Cayman Islands has ruled against the tribunal on this point. The tribunal intends to lodge an appeal to the Court of Appeal in the Cayman Islands, from which court an appeal lies to the Judicial Committee of the Privy Council in London.
This is not the end of the matter. Even if the Cayman court accedes to such a request, there is a further application which takes place in the Cayman Islands on notice to the Attorney General of the Cayman Islands during which the Attorney General can put forward reasons to do with the public policy of the Cayman Islands as to why effect should not be given to the letter of request even if the tribunal is regarded as the appropriate type of tribunal to issue a letter of request.
Accordingly, it is the tribunal's view that the tribunal should continue and complete its task in accordance with the present terms of reference.