Regulator did not share documents with police who were investigating fraud allegations, RHI Inquiry is told
Northern Ireland's gas and electricity regulator did not share all of its information with police probing allegations of fraud by a former special adviser to Arlene Foster.
The revelation came yesterday as the RHI Inquiry returned for three days of closing submissions from key players on the flawed scheme.
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This will include a short presentation of the evidence already heard over 111 days, as well as oral submissions from lawyers representing three key players - the Department for the Economy, the Department of Finance and regulator Ofgem.
One of the first matters examined yesterday was how an application for the scheme by former DUP special adviser Stephen Brimstone was handled.
Junior counsel to the inquiry Joseph Aiken said it has more than 1,000 pages of evidence on the matter.
Mr Brimstone gave evidence to the RHI Inquiry in September and the independent panel heard how he initially applied to the lucrative scheme in August 2015.
A former 'Spad' to Mrs Foster when she was First Minister, Mr Brimstone - who is now an IT consultant - had an RHI boiler installed to heat both a large shed and his home, replacing an old heating system.
Internal Ofgem notes referred to Mr Brimstone's application as a "special case", reflecting the "political sensitivity" of Mr Brimstone's party position, as well as media speculation surrounding the scheme.
Ofgem also emphasised to the inquiry that these were "factors which merited extra diligence and greater consideration from senior management".
The inquiry was previously told that in May 2016 an anonymous complainant alleged that Mr Brimstone was involved in a "total fraud" and that he was using the boiler on the non-domestic scheme to heat his home in breach of regulations.
However, Ofgem took the decision not to inform the Department for the Economy (DfE) - formerly the Department of Enterprise, Trade and Investment (Deti) - which was running the scheme about that allegation, until it obtained "concrete evidence" to support the claim.
The inquiry heard that it would "not have been standard practice" for Ofgem to disclose details which "would allow identification" to Deti while an investigation was being carried out.
A second anonymous complaint about the same boiler was made in October 2016 and passed in a note to TUV Assembly Member Jim Allister. The PSNI, NI Audit Office, DfE and Ofgem were also notified at that time. Following a number of audits, Ofgem later accepted that Mr Brimstone's installation had complied with the scheme's rules.
However, the inquiry heard yesterday that the regulator did not provide all the documentation it held about Mr Brimstone's application to the PSNI when it began investigating the fraud allegations.
In his written witness statement, Ofgem's lawyer John Jackson told the inquiry he didn't believe the documents that Ofgem wanted to share with the PSNI were "critical" to its investigation.
"There was nothing in the documents, or the conclusions that they reached, that would have assisted the police in a criminal prosecution of Stephen Brimstone," he said.
He added that the documents "appeared to confirm that no offence of fraud had been committed" in Mr Brimstone's RHI application.
No crime was detected by police during its investigation.
Inquiry chairman Sir Patrick Coghlin said either Mr Jackson's assessment was that Ofgem's audit could not assist police or he was not satisfied that Data Protection Act restrictions allowed him to release that information.
Mr Aiken said it was "difficult" to look at the Data Protection Act as intended to "create some sort of guessing game... for law enforcement agencies trying to prevent or detect crime".
He put it to the panel that they "may want to consider whether that's an illustration of wider cultural issue about Ofgem's approach to transparency and information sharing".
Further oral submissions will be heard today and tomorrow from some of the 27 individuals and organisations who were granted enhanced participatory rights.
These include Mrs Foster, former DUP minister Jonathan Bell, a number of the party's special advisers (Spads) and some senior civil servants.
The RHI Inquiry is likely to publish its findings at some stage in 2019.