Instead of indefinitely deferring the trial of the former Taoiseach, Mr Charles Haughey, on charges of obstructing the McCracken tribunal, a Circuit Court judge should have asked potential jurors if they believed they could be fair to Mr Haughey.
In this way, the Director of Public Prosecutions (DPP) argued before the High Court yesterday, he could have tested his view that Mr Haughey could not get a fair trial.
Mr Maurice Gaffney SC, for the DPP, said only the High Court could grant, in judicial review proceedings, an order prohibiting a trial. Judge Kevin Haugh's order deferring Mr Haughey's trial until some future undefined date was effectively an order of prohibition. The Circuit Court had no such power.
Unless Judge Haugh's order could be judicially reviewed, an unauthorised procedure would be employed in this case and would be sought in future cases where an accused might have some degree of notoriety, Mr Gaffney said. He was not saying there was notoriety in this case.
The situation now was that for the trial to go on at some future time, the onus would be on the people of Ireland, through the DPP, to prove that the climate of opinion towards Mr Haughey had altered and that Mr Haughey would receive a fair trial. The DPP was contending that Mr Haughey could receive a fair trial today through the current system of jury selection.
Counsel was opening the DPP's challenge to Judge Haugh's decision, made at Dublin Circuit Criminal Court on June 26th, to stay all further proceedings against Mr Haughey without leave of that court. Judge Haugh found there was a real and substantial risk that Mr Haughey would not receive a fair trial due to adverse publicity and, particularly, remarks by the Tanaiste, Ms Harney, and to a leaflet which had been circulated.
On June 30th the DPP secured leave to challenge Judge Haugh's order on the grounds that the Circuit Court judge had no jurisdiction to make it and the order was wrong in law, irrational and arrived at in circumstances where there was no actual evidence of bias or prejudice (of potential jurors) put before the judge.
Lawyers for Mr Haughey later brought a motion to have the action struck out as an abuse of court process. The President of the High Court refused to set up a Divisional High Court (of three judges) to hear that motion.
After hearing submissions regarding the motion yesterday, Miss Justice Carroll said she would deal with the issues in the judicial review proceedings. These included a claim by Mr Haughey that the DPP was stopped from challenging Judge Haugh's jurisdiction to make his order because the DPP had never raised the jurisdictional point in the Circuit Court. Mr Haughey will also contend that Judge Haugh's order was made within jurisdiction and was not irrational.
Mr Gaffney said the charges against Mr Haughey of obstructing the McCracken tribunal were narrow and clearly defined. The first alleged that Mr Haughey had obstructed the tribunal by asserting in a letter that he had not received any payments in cash or in kind of the nature referred to in the tribunal's terms of reference when he knew that assertion to be false.
The second charge alleged Mr Haughey had asserted in a statement that he had never received three bank drafts when he knew that assertion to be false.
Counsel said that, in a judgment of December 1999 refusing to adjourn Mr Haughey's trial, Judge Haugh had noted the charges against Mr Haughey were clearly defined, and the adverse publicity then complained of related to issues peripheral to those charges.
In finding in his June judgment that the publicity was then so extensive and damaging to Mr Haughey that he could not receive a fair trial, Judge Haugh was effectively questioning the basis of the jury system.
The courts could not ignore the effects adverse publicity might have on jurors, but to proceed from that and find jurors could not put such matters from their minds was going too far. The truth lay somewhere in between.
The DPP had acknowledged that Mr Haughey's reputation had been damaged by the publicity given. Comments to the effect that Mr Haughey's trial was an "open-and-shut" case and a "foregone conclusion" should not have been made. However, the relevance of remarks by the Tanaiste, which Judge Haugh found had an enhanced risk of prejudicing jurors, was nil, Mr Gaffney said.
Ms Harney's utterances might have the effect of prejudicing Mr Haughey himself but did not prejudice his trial and could not affect properly directed jurors.
In particular, the DPP was claiming Judge Haugh had strayed into error in considering that, as the deliberations of a jury were secretive, then the impartiality of a jury could never be calculated.
The DPP accepted that a court could not establish how a jury reached its decisions. But the Juries Act set out a system which was intended to be used for excluding biased jurors. The hearing continues today.
