Justice system must move with the multimedia times
The courts must adapt to the new reality, which is that there is no such thing as an ‘unprejudiced’ jury any more
The content of the Anglo Irish Bank tapes published in the Irish Independent could prejudice proceedings. Defendants might seek to follow the lead of Charles Haughey in 2000, when he successfully pleaded that because public opinion had been poisoned against him, he could not get a fair trial on charges of obstructing the McCracken tribunal. Photograph: David Sleator
A former director of public prosecutions, James Hamilton, presents a depressing choice in his warning that it would be “foolish” for the Government to proceed with a banking inquiry before criminal trials take place. We can have an inquiry. Or we can have the law take its course and then see about an inquiry. But we cannot have the two together, it seems.
Material used in an inquiry could be used by defendants to claim they cannot have a fair trial, he argues. The content of the Anglo Irish Bank tapes published in the Irish Independent could also prejudice proceedings. Defendants might seek to follow the lead of Charles Haughey in 2000, when he successfully pleaded that because public opinion had been poisoned against him, he could not get a fair trial on charges of obstructing the McCracken tribunal.
Clearly thinking along similar lines, James Hamilton’s successor, Claire Loftus, has requested Independent News & Media to forbear from further revelations. She has the task of steering prosecutions through to trial. Some charges have already been laid and the Garda Bureau of Fraud Investigation is labouring to finalise its evidence for her.
“We have to work within the system we have at the moment,” the former DPP told RTÉ, with a palpable air of resignation.
James Hamilton was a thorough and conscientious prosecutor. In 2000 he sought a review of the Circuit Court decision to stop the case against Haughey (DPP v His Honour Judge Kevin Haugh and Charles J Haughey). However the High Court in effect refused, holding that it was for the trial judge to decide the issue. The office of the DPP, understandably, does not like to be backhanded by the superior courts.
But the “system” to which Hamilton refers does not any longer reflect reality. The nexus between public opinion, the media and the administration of justice is no longer where it was 13 years ago when it was held that the former taoiseach could not be tried, putting him in effect beyond the law.
Experienced prosecutors are of course right to raise these issues. When and if charges are finally brought to full hearing, claims of prejudice and bias will be among the earliest hares to be coursed by defence lawyers. It will be pleaded that such has been the intensity of public anger, so vile have been the media in their coverage, and such has been the popular rush to judgment that it will be impossible to empanel jurors with open minds.
But in the hyper-connected world of today it is unrealistic to expect that a panel of intelligent adults, possessed of reasonable deductive capacities, can be found who will not to some degree have “internalised” (Brian Cowen’s term) the shocking performance of the Irish financial system and of Anglo in particular. Nobody living in this State has been unaffected. So can prosecutions proceed only where jury members can be shown to have been living in some sort of cocoon? Taken to its logical conclusion it would suggest the criminal courts as a whole should be shut down.