Lawyers for two newspapers have failed to have a ban lifted on reporting an application by a former Taoiseach, Mr Charles J. Haughey, to delay his trial for allegedly obstructing the McCracken tribunal.
The ban covers all exhibits by barristers working for Mr Haughey, including eight folders of newspaper clippings and three television clips shown in court.
Mr Haughey is making his application to delay his trial at Dublin Circuit Criminal Court on two counts of obstructing the McCracken tribunal, based on adverse publicity surrounding the tribunal.
His lawyers have read into the court record a large number of newspaper articles from the Sunday Independent, Irish Independent and Star and shown clips from The Late Late Show, Prime Time and Spotlight, which they say show adverse publicity about Mr Haughey.
Judge Kevin Haugh placed the ban on reporting the contents of the newspaper articles, TV footage and all other exhibits in the case when the hearing of the motion began on Monday.
He continued the ban after listening to applications by The Irish Times and Irish Independent. He said he had heard nothing to make him lift the ban. There was a risk that reporters might "reheat and rehash" details of the newspaper and TV clips involved in the case and thereby restrict Mr Haughey's right to a fair trial.
Mr Richard Nesbitt SC, for The Irish Times, had earlier described attempts to restrict media coverage of the application as "somewhat unreal, possibly manufactured, and a contempt to the trial process".
Mr Nesbitt told Judge Haugh that reporting on newspaper articles being read to the court would not adversely affect Mr Haughey's trial as the information was already in the public domain. He said Mr Haughey's legal team was expecting that a jury would be incapable of distinguishing between evidence they heard in court and media reports they had read or heard in the past.
He referred to The Irish Times v Murphy case, in which Judge A.G. Murphy of the Circuit Court attempted to ban the media from reporting on the trial of a man accused of drug dealing. He said that when the case went to the Supreme Court, the Chief Justice, Mr Justice Hamilton, indicated that judges should not interfere with the press's right to report on trials except in very limited cases, such as when evidence was being heard without the jury present.
The Chief Justice had also said that adverse publicity about an accused person should only lead to a discharge of the jury in very limited cases.
Judge Haugh asked Mr Nesbitt if he was suggesting that there should be a media "free-for-all" and that there was never a situation where a jury could be "contaminated" by media reports.
Mr Nesbitt replied that a restriction on the media's right to report on the case was based on the assumption that the jury which would try Mr Haughey would be incapable of reaching a decision on evidence presented in court. He said such a view went against Mr Justice Hamilton's ruling in The Irish Times v Murphy case.
Judge Haugh recalled that a former attorney general had refused to extradite Father Patrick Ryan to Britain on bombing charges because of "intemperate" publicity given to the case in the British papers.
He said that repetition might make the situation worse, and to report on the newspaper articles being read to the court might have an adverse effect on Mr Haughey's trial.
Mr Eoin McCullough, for the Irish Independent, said the ruling of the Chief Justice in The Irish Times v Murphy case indicated that judges should restrict information only so it did not receive public attention.
Mr McCullough said that in the present case the information had been published in the past and would be published again if the papers so wished. It was also inevitable that there would be further comment about Mr Haughey during the remainder of the Moriarty tribunal.
Judge Haugh said that Mr Haughey's right to a fair trial was superior to the right of the public and the press to information and freedom of expression. He referred to the fact that the media might repeat statements they made about Mr Haughey and warned that this right was not absolute as it might result in a trial being aborted and there might be "consequences" if that happened.
Mr Eamonn Leahy SC, for Mr Haughey, referring to the eight folders of newspaper clippings before him, said he was anxious not to make the situation worse by allowing the press to report on the contents of the newspaper articles during the course of the application before the court.
He added that there was jurisprudence which allowed for a restriction on pre-trial publicity, and counsel for The Irish Times and the Irish Independent were ignoring that fact. He referred to the case of McGee v O'Dea in which an extradition was prohibited, because there was risk of an unfair trial, and the Zoe Developments case in which, he said, Mr Justice Geoghegan had recognised that a "fade factor" existed whereby a criminal trial could be adjourned long enough so that pre-trial publicity would fade from the mind of the public.
Judge Haugh said that if adverse publicity about Mr Haughey being read to the court was brought together and published all at once, it might make the situation worse.
He told Mr Nesbitt and Mr McCullough that they could make a further application at the end of the hearing.