FitzPatrick seeks injunction to protect right to fair trial

An application by former Anglo Irish Bank chairman Seán FitzPatrick, to stop his criminal trial going ahead at the Dublin Circuit Criminal Court in October, has been heard at the High Court in Dublin.

Bernard Condon SC, for Mr FitzPatrick, told Mr Justice Michael Moriarty he was seeking an injunction to protect the rights of his client to a fair trial.

He said he was seeking an injunction against the Director of Public Prosecutions to prohibit or restrain the continuing prosecution.

Mr FitzPatrick is facing 27 charges, including making a misleading, false or deceptive statement to auditors and of furnishing false information from 2002 to 2007. He has pleaded not guilty.

Concerns about negative publicity surrounding the subsequent separate trial of three former Anglo officials were raised at the Circuit Court before Judge Martin Nolan.

Tiarnan O'Mahoney, Bernard Daly and Aoife Maguire were jailed in July for trying to hide accounts from the Revenue Commissioners between March 2003 and December 2004.

Mr FitzPatrick’s legal team had argued he could not get a fair trial in the wake of the publicity surrounding that case.

But Judge Nolan rejected that application and said the trial should go ahead on October 5th.

Mr Condon told Mr Justice Moriarty on Friday he was seeking a permanent injunction to prevent the trial ever going ahead, or alternatively, a limited injunction for a specified time.

He suggested 12 months might be the appropriate period.

“I’m here to stop the trial from ever proceeding and if I don’t succeed in that, I am here to prevent the trial from going ahead until at least October 2016,” he said,

Mr Condon’s statement was interrupted by Paul O’Higgins SC, for the DPP. Mr O’Higgins said he wished to apply for an order prohibiting the media from reporting on the details of today’s application, given matters could be aired that were discussed in the absence of the jury when the trial began in April.

Mr Justice Moriarty said, given he intends to deliver his judgment on the matter on Saturday, it would be appropriate that reporting of details of what is discussed today could be deferred until tomorrow.

Mr Condon said Mr FitzPatrick wanted what everyone in the State is entitled to, a fair trial before an impartial jury.

He told Mr Justice Moriarty that all of the “Anglo trials” were listed out to the future, with one listed for 2017, and the “fade factors” were inbuilt into the listing system. Through happenstance, Mr FitzPatrick’s trial is to occur after the trial of the three officials, and damaging things had been said about him.

He accepted that no one had ever got a permanent injunction against the continuation of a trial, but that didn’t mean somebody couldn’t.

He also said a warning to a jury to ignore publicity would not be sufficient. He said in cases where warnings have been considered satisfactory, they have followed a fade factor.

He said he was asking for a permanent injunction because the publicity was so awful it could never be remedied. If he was wrong about that, then there should be an adjournment for 12 months.

Mr Justice Moriarty said if he were to accede to a request for a permanent injunction, it would mean that notoriety effectively precludes a person from due process.

Paul O’Higgins SC, for the DPP, told the judge that trials don’t and can’t occur in circumstances that are completely sterile. It was true there had been a large quantity of unfavourable publicity, but it didn’t deal with the facts of what Mr FitzPatrick is “actually supposed to have done”.

He also said he did not think it was correct to say the Anglo trials had been organised to allow for a fade factor. And he said it was “unrealistic” to suggest the fade factor “was a factor in this case in the way it might be in some others”.

Mr Justice Moriarty said the sequence of events in the case were less than ideal and there were challenges our legal system has not had to deal with before.

Mr O’Higgins said there was not a real risk of an unfair trial; matters would have to be dealt with by clear and cogent direction to the jury. There would be no time when the trial would take place in a vacuum, he said. He queried whether those who remembered the publicity in six weeks time, will have forgotten it in a year.

“There is no perfect time for this case to take place,” he said.

The trial can go ahead fairly in October.”

The judge said he would deliver his judgment on Saturday.