The refusal of the Criminal Assets Bureau to give the Flood tribunal documents relating to Mr George Redmond is to be referred to the Oireachtas in the form of an interim report, the chairman ruled yesterday.
The decision not to produce the documents could mean that any matters at the tribunal relating to Mr Redmond, the former assistant Dublin city and county manager, will be put in abeyance.
The chairman, Mr Justice Flood, said yesterday CAB had made it clear it would not furnish material while its investigations were being carried out and until any proceedings were determined. In arriving at this position it appeared that CAB had consulted the DPP.
"It is clear that future consideration as to whether or not the Chief Bureau Officer would consider making this documentation available to the tribunal is years rather than months away," the chairman said.
The bureau had argued that only a court could hear and decide a claim of privilege asserted by it. The chairman said the argument went to the root of the ability of a tribunal of inquiry to obtain documentation and information.
He said CAB had also made it clear that if the tribunal did not agree with its view it (CAB) would institute proceedings in the High Court for judicial review.
The documents were seized by CAB when Mr Redmond was arrested at Dublin Airport as he arrived on a flight from the Isle of Man on February 19th. CAB also seized documentation from Mr Redmond's home on the same date.
Mr Redmond had written to CAB indicating his consent to the tribunal being furnished with copies of the documentation.
The chairman said CAB appeared to have commenced a parallel investigation into the same matters detailed in the terms of reference of the inquiry.
The tribunal considered that there was a real likelihood that where it was discovered, for example, that the inquiries undertaken by the tribunal touched on matters of criminal or revenue law there would be a repetition of this situation.
"The tribunal intends to send an interim report on this matter to the Oireachtas in early course," the chairman ruled.
He was ruling on CAB's claim of privilege and said he was not satisfied that the tribunal should accede to that claim.
The argument by CAB was an argument as to jurisdiction. CAB claimed the tribunal had no power to consider its claim. That argument made no sense if regard was had to the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998, which provided a variety of express statutory powers in relation to the production of documents.
"The tribunal considers that there is a very serious issue of public interest underlying the approach of the CAB to the inquiry work of this tribunal," Mr Justice Flood said.
He was satisfied that the order made by the tribunal on April 13th was properly made.
The tribunal was required to inquire in public into the facts. The tribunal was not concerned with questions of individual criminal or civil accountability.
The Act expressly provided that evidence heard at proceedings of a tribunal was immune from being adduced in criminal proceedings.
"A tribunal of inquiry is not a mechanism to assist or facilitate other State agencies to discharge their functions," he said.