The Criminal Assets Bureau has asked the High Court to decide if the Flood tribunal has authority to order it to hand over material seized from the former assistant Dublin county manager Mr George Redmond.
In court yesterday, Mr Dermot Gleeson SC, for the CAB, said Mr Redmond had been arrested by CAB officers last February at Dublin Airport and substantial cheques and other documents were seized. Further documentation was seized at his house under a search warrant. The tribunal, which is investigating planning matters, asked for and was refused the seized material. The CAB claimed production of the documents would prejudice its own and Garda investigations and might possibly prejudice subsequent criminal proceedings.
Mr Gleeson said the tribunal had claimed it had determined that production of the material to it would not prejudice the CAB's investigations. But the head of bureau, Chief Supt Fachtna Murphy, had expressed concern.
This "frontier" of a parliamentary inquiry and a police investigation had occurred in the Kerry Babies and Stardust inquiries and the beef tribunal, and such "difficult waters" had been successfully navigated by other tribunals. But in this particular case, a summons was issued to the CAB to hand over the documents, Mr Gleeson said. He was unable to find any precedent where, notwithstanding protests from those investigating serious crime, a parliamentary tribunal claimed it wanted the documents seized from Mr Redmond. Chief Supt Murphy had told the tribunal he claimed privilege and did not want his investigations compromised. His lawyers argued the question of privilege was to be decided by the courts. The tribunal disagreed and ruled there was no privilege.
It was the CAB's case that the tribunal should never have embarked on this adjudication and that it had offended against the rule that no one should be a judge in his own cause. Under the Constitution the administration of justice was a matter for the courts.
The question was, who decided the question of privilege.
Where a parliamentary tribunal was in some sense one of the parties to the dispute, should that issue be decided by the tribunal itself?
The CAB argued that the correct procedure was that the matter be sent before the court. He said he believed it would be open for a tribunal to decide it was in favour of a claim of privilege because that would be almost a consent between the parties.
But where there was a determination contrary to the CAB's claim for privilege, then it was not open to Mr Justice Flood, who was not a High Court judge while acting as chairman of the tribunal, to issue a summons.
In reply to Mr Justice McCracken, he agreed the tribunal chairman, unlike a High Court judge, would not have seen the Redmond documents before deciding the issue of privilege.
Mr Justice McCracken asked, even if it were proper for the tribunal to make a decision on the question of privilege, would it not be open to review by the court.
Mr Gleeson said both CAB and the Flood tribunal were relatively new and had different modes of procedure and different focuses. The tribunal was arguing that a parliamentary tribunal must have priority over those conducting an investigation into crime. If the tribunal's order was endorsed by the court, then it might impair or fatally disable prosecution of serious crime. But if there were no order, there might have been a successful prosecution and conviction.
It could not be the function of a parliamentary tribunal to take over and invade and impair the process by which criminals were detected, prosecuted, tried and convicted.
In an affidavit, Chief Supt Murphy said he consulted the Garda Commissioner and DPP and concluded he must refuse the tribunal's request for documents. He believed it would be highly undesirable to discuss in great detail the status of the CAB's confidential investigations. However, he could state that Mr Redmond was not, by any means, the only subject of such investigations. He was satisfied it would be of significant benefit to parties who were the subject of those wider investigations, and who might wish to impede them, if they were able to gain information as to the nature of the investigation or the information available to the investigators.
The hearing continues today.