The chairman of the planning tribunal is to rule later this week on a dispute between the Criminal Assets Bureau and the tribunal over their investigations into Mr George Redmond.
However, the matter seems certain to go to the High Court unless Mr Justice Flood backs down on his demand that the CAB furnish to the tribunal copies of documentation seized from Mr Redmond during his arrest last February.
CAB lawyers yesterday argued that the tribunal had no role in deciding the matter - it would have to be resolved by the courts. They repeated their refusal to explain the basis on which the CAB is claiming privilege over the documentation.
The tribunal's own lawyers appeared to accept the inevitability of High Court proceedings on it, no matter what decision Mr Justice Flood makes.
The tribunal has been investigating corruption in the planning process since 1997, but its inquiries into Mr Redmond, the former assistant Dublin city and county manager, have been frustrated since CAB detectives seized the documentation the tribunal had been trying to get.
Yesterday Mr Justice Flood explained his frustration: "This is a red apple in the basket. The CAB came in, said `we like red apples' and took it away with them."
With the tribunal frequently investigating matters which touch on criminal investigations and tax matters, this situation was likely to "recur and recur", he warned.
In a submission, Mr Felix McEnroy SC, for the tribunal, said the tribunal was established in 1997 to inquire into what, in the chairman's opinion, constituted corruption. The chairman clearly had a duty to inquire into matters which strayed into criminal and tax law. It had the power to compel the bureau chief of the CAB, Chief Supt Fachtna Murphy, to attend and produce documents.
Tribunals had powers to make orders similar to those enjoyed by the High Court, he said. People who produced documents to the tribunal were entitled to the same immunities and privileges. .
Mr McEnroy said it would appear that the CAB was arguing that to produce the documentation would prejudice its criminal and statutory investigations - and any future criminal trial and any future statutory proceedings against persons linked to the documentation.
Two orders had been made seeking copies of the material but these had not been complied with and were now not capable of being complied with. He said the CAB seemed to be applying for "a new and yet to be established" category of privilege distinct from the ordinary duty of disclosure. The courts have not recognised this category of privilege, which "rests uneasily" with relevant Supreme Court judgments in the area.
Two competing public interest considerations appeared to be in conflict in this situation, he submitted. The first was the duty of the tribunal to establish the full facts of the matters it was set up by the Oireachtas to investigate. The second was the duty of the CAB to carry out its investigations.
Mr McEnroy said the tribunal had a number of options. The first, which he urged the tribunal not to adopt, was to make a criminal complaint to the gardai. Regarding the manner in which the CAB has handled the matter, this would not be appropriate.
The tribunal could also go to the High Court seeking an order enforcing the disclosure of the documentation. The difficulty with this was that it was, in effect, a contempt of court-type application and might not be appropriate for the circumstances.
The third option for the tribunal was to simply "draw a line" under the matter and not pursue its inquiries by discharging the order it had made.
Mr McEnroy said the tribunal was likely to find itself before the High Court no matter what decision was made. The chairman's ruling would be a "watershed" for the tribunal.
The chairman has a duty to act expeditiously in his inquiries, he added. "You should not have to sit indefinitely waiting to see whether or not, if at all, you will get this documentation." He also had to have regard to the expenses of the tribunal.
There was no reason to believe this situation would not "recur and recur" where a tribunal carrying out inquiries touched on areas of criminal investigation or tax inquiry.
Mr Paul Butler SC, for the CAB, said he had specific instructions not to argue the privilege claimed. It was a matter for the courts, not the tribunal, to determine whether there was a privilege or not.
There was a significant difference between the position of a tribunal and the position of a court in such a case. The tribunal has an interest in the production of the documents and has predetermined their relevance. The same could not be said in the context of litigation between parties. The only function of the courts was to balance the competing interests of the privilege claimed.
One way or another, Mr Butler said, the matter would end up in the High Court if the tribunal sought to enforce its order. "I think we will be wasting public time by arguing the claim of privilege here," he said.
Mr James O'Reilly SC, for the public interest, said the submission by the CAB had a "frailty" in that it was very close to asserting a form of class privilege. Mr Justice Flood said he would rule on the matter on Friday morning.
