Mr Justice McCracken said that this case was unique because of the nature of the bodies concerned. Their relationship, and the relationship of each of them to the Oireachtas and the courts was of primary importance. The CAB was a creature of statute, and was set up by the Oireachtas for the purpose of ensuring that persons should not benefit from any assets acquired by them from any criminal activity. It was not prosecuting body, nor was it a police authority. It was an investigating authority which, having investigated and used its considerable powers of investigation, then applied to the court for assistance in enforcing its functions. It was not the same as the Garda Siochana, which investigated with an aim to prosecuting persons for offences. The CAB investigated for the purpose of securing assets which have been acquired as a result of criminal activities and ultimately paying those assets over to the State.
The tribunal was also in one sense a creature of statute, but it would be more accurately described as an arm of the legislature. It was an instrument of the Oireachtas whereby the Oireachtas could obtain factual information on matters of urgent public importance, in this case in relation to certain allegations of corruption in connections with the planning process.
Mr Justice McCracken said that the two bodies had, therefore, been established by the Oireachtas largely as investigative bodies, and at present they were investigating similar matters. Unfortunately, the Oireachtas did not legislate for the priorities of such bodies to information. The Oireachtas clearly intended on the one hand that information obtained by the CAB should be confidential, and on the other hand that the tribunal should have access to all relevant information.
The applicant had argued that a claim for privilege was part of the administration of justice, and therefore such a claim could only be determined in the courts. While the tribunal possessed powers similar to those of a High Court judge under the Tribunals of Inquiry (Evidence) Acts, it was not acting as a judge and was not part of the administration of justice though the courts.
The applicant cited two statutory provisions in support of his case. Section 8(7) of the Criminal Assets Bureau Act 1996 provides that officers of the Bureau may not disclose documents in their possession and the applicant argued that that could only be overridden by a court order. He also cited section 4 of the Tribunals of Inquiry (Amendment) Act 1997 which permits the tribunal to apply to the High Court in a summary manner to order a person to comply with the tribunal's order. The applicant submitted that this procedure should have been followed in the present case.
In addition, the applicant cited a passage from In Re Kevin O'Kelly (1974) 108 ILTR 97 which was quoted with approval by Mr Justice McCarthy in Ambiorix Ltd v Minister for the Environment (No. 1) [1992] 1 IR 277 and which reads: "As was pointed out in [Murphy v Dublin Corporation], there may be occasions when different aspects of the public interest may require a resolution of a conflict of interests which may be involved in the disclosure of non-disclosure of evidence, but if there be such a conflict, then the sole power of resolving it resides in the courts." In Murphy v Dublin Corporation [1972] IR 215, at 233, Mr Justice Walsh had said that under the Constitution, the administration of justice was committed solely to the judiciary in the exercise of their powers in the courts set up under the Constitution. Power to compel the production of evidence was an inherent part of the judicial power of the government of the State and was the ultimate safeguard of justice in the State. There might be occasions when the different aspects of the public interest pulled in contrary directions. If that conflict arose during the exercise of the judicial power then it was the judicial power which would decide which public interest should prevail.
Mr Justice McCracken said that it should be noted that all of those comments were made in the context of a civil act between litigants before the courts.
The respondent argued that under the terms of reference the tribunal was required by the Oireachtas to inquire fully into all matters referred to, and therefore he had a statutory duty to obtain the relevant evidence. His duties or powers in this regard were not in any way curtailed by any statutory provision. He also argued that the authorities appeared to establish that an issue of privilege could only be decided by the body which had seisin of the dispute. He pointed out that in Murphy v Dublin Corporation, Mr Justice Walsh had referred to a conflict arising "during the exercise of the judicial power" and had said: "In the last resort the decision lies with the courts so long as they have seisin of the case." The respondent had also cited Nolan v Irish Land Commission [1981] IR 23 where it was held that a claim of privilege should be determined by the lay commissioners before whom the proceedings were pending.
Mr Justice McCracken said that at this stage he was only considering whether the decision on privilege should be made by the tribunal or by the courts, and he was not considering what the decision should be. He said that the problem raised before him was unique, in that the two bodies concerned were both charged by the Oireachtas with carrying out investigations in the public interest. He rejected the argument that there had been a breach of the maxim nemo judex in causa sua. This was not a dispute between two parties to litigation, but rather between parties holding competing inquiries. The respondent was not a party to litigation and had not got a causa. Nor was he adjudicating on a dispute inter partes. He was carrying out an investigation on behalf of the Oireachtas, and if he was asked to decide on the question of privilege, his function was to decide on this question, not as between the interests of competing parties, but in the public interest. The cases cited related to cases which were pending before the courts.
Under section 1 of the 1921 Act the respondent was given all such powers, rights and privileges as are vested in the High Court on the occasion of an action in respect of compelling the production of documents. This power included the power to determine whether those documents were privileged. Mr Justice McCracken said that this gave the respondent the statutory power to make such a ruling in the course of the inquiry.
Mr Justice McCracken said that it had been suggested that section 4 of the 1997 Act should have been used by the respondent. However, this was not the purpose of section 4. It was an enforcement section, not a power to refer problems to the courts. It was also relevant that the Acts gave no right of appeal to the courts to any dissatisfied party, but this followed from the nature of the tribunal, which was investigative only and made no judicial findings. The decisions of the tribunal could, of course, be reviewed, but such review was concerned, not with whether the decision was correct or incorrect, but rather with how that decision was reached. In the present case, the applicant had been given a right to make submissions, and had taken a preliminary point on jurisdiction. The respondent had taken time to consider those submissions, and there was nothing to suggest that he did not consider them properly or fairly, and therefore, insofar as he had ruled that he had jurisdiction , that ruling must stand as having been properly reached.
Mr Justice McCracken said that if the tribunal could not rule on matters of evidence as they arose, the work of the tribunal would be almost impossible. If the applicant was correct, then any person appearing before the tribunal who was dissatisfied with a ruling on evidence could come to the High Court and attempt to set it aside. There could be endless delays and enormous expense incurred in what the Oireachtas has determined to be a matter of urgent public interest. This could not possibly have been intended by the Oireachtas when the tribunal was set up. The only basis on which a tribunal of this nature could operate is that it might make rulings as they arose, and that was the reason why the specific powers were given to the tribunal both under section 1 of the 1921 Act and section 4 of the 1979 Act.
Mr Justice McCracken accordingly held that the tribunal had jurisdiction to make a decision on whether documents were privileged. However, in this case, the applicant had chosen to restrict his arguments to the question of jurisdiction. He was entitled to take this course, but it followed that the decision of the tribunal as to privilege was made without hearing the full arguments of the applicant and without his giving evidence as to the factual background for his contentions. Mr Justice McCracken said that the applicant must now be given an opportunity to give this evidence and to made substantive arguments in favour of privilege. Otherwise, the procedures of the tribunal could be said to offend natural justice. The matter should be reconsidered by the tribunal having heard further arguments, and if necessary evidence from the parties.
Mr Justice McCracken therefore set aside the decision of the tribunal insofar as it ruled that the documents were not privileged, but upheld the decision that the tribunal itself had jurisdiction to determine the dispute.
Solicitors: Chief State Solicitor (Dublin) for the applicant, the respondent, the first notice party, and the second notice party; Anthony Harris & Co (Dublin) for the third notice party.
This decision is under appeal to the Supreme Court.
