THREE High Court judges will hear the inquiry into the legality of the detention of 15 prisoners involved in the controversy over the composition of the Special Criminal Court, it was announced in the High Court yesterday.
Mr Justice Kelly said three judges would preside as a divisional court of the High Court. This is formed when it is considered that certain matters should not properly be heard by a single judge.
Yesterday Mr Patrick MacEntee SC for one of the prisoners, Mr Anthony Duncan, sought further discovery of documents and the right to cross examine certain State officials.
He said the issue in this case was who knew what and when the Government had withdrawn Judge Dominic Lynch from the Special Criminal Court at his own request. The judge made the original request last July. Not only did they want to know when the State found out that Judge Lynch had been removed but who in the State found out and at what level.
He said they needed to establish what certain State officers knew before November 6th-7th when the prisoners were released and rearrested.
The State officers had essentially ignored everything that happened before their chosen dates for the discovery of documents which were November 6th/7th. He said there was an article in The Irish Times on October 29th reporting on the Special Criminal Court which named the judges, including Judge Lynch, which was brought to the attention of the Attorney General.
One of the documents they were seeking was a letter from the Attorney General to the Minister for Justice on November 1st, which contained facts capable of demonstrating who knew what and when. He anticipated that, unless he was allowed to cross examine these officials, the information would be scant.
Mr MacEntee also said the State was claiming privilege regarding certain documents. He had grounds for believing that all or some documents would contain facts revealing who knew and when they knew. They were entitled to have that information.
Mr Sean Ryan SC, for the Government agencies, said if every document between the beginning of August when the decision to remove Judge Lynch was made and November 7th was to be discovered it would be an enormous inquiry. In his submission, the court was not concerned with that.
The issue was whether, when senior management in the Department of Justice became aware of the irregularity, they acted with reasonable expedition. There was a limit to what was relevant.
Mr Peter Charleton SC, for the DPP, said there was a claim of privilege, and if officials were to be cross examined on the reasons it would undermine the privilege.
Mr Justice Kelly adjourned the case until Monday.