Haughey may use privilege option0

BY the curious whirligig of circumstances, Mr Charles Haughey's legal obligation to appear before the McCracken tribunal - if, as seems likely, he is summoned - and to answer its questions originated in an episode involving his brother, Mr Jock Haughey.

The other Mr Haughey refused in 1970 to answer questions put by the Dail Public Accounts Committee's investigation into the use made of money voted for Red Cross work in Northern Ireland but which had been spent on arms for the IRA.

The sequel to the re Haughey case was the Tribunal of Inquiry Act, 1979. This provides that if a witness - before a tribunal refuses to appear to answer questions then he commits an offence which - and this is an important point - must be tried before a court.

Now one should emphasise that Mr Haughey has certainly not indicated that he will not appear if summoned. All he has done is the very different act of declining the most pressing blandishments to be represented before the tribunal so that his side of the case may be put.

This would take the form of cross examining (say) Mr Ben Dunne/Mrs Margaret Heffernan; calling other witnesses who would support him; and having his legal representative make a speech to the tribunal. Oddly enough, this right to representation was also laid down in the first Haughey case.

However, it is worth noting that if Mr Haughey were to decline a summons to appear, a long legal process would follow.

The first phase would be that a tribunal chairman would refer the matter to the Director of Public Prosecutions. The DPP would no doubt go ahead and prosecute.

The 1979 Act provides at this point for a choice of courts. Trial before the District Court would be possible but only subject to the consent of Mr Haughey. If this were not forthcoming (and most defence lawyers would advise that it should not be), the trial would have to be before the High or Circuit Court and with a jury (and the possibility of a stiffer sentence than before the District Courts, a maximum of two years imprisonment and/or a £10,000 fine).

THE jury is the important point. Any conviction requires a majority of 10-2 at least, and it is unlikely that in the circumstances of any case of this kind - readers can write defence counsel's closing speech to the jury themselves, I think - such a majority would be forthcoming.

In any case it seems unlikely that Mr Haughey would refuse to appear in response to a summons from the tribunal.

A more realistic string to Mr Haughey's bow if he wishes not to answer a question from the tribunal is the privilege against self incrimination. This was allowed to certain witnesses before the beef tribunal, but given that the 1979 Act provides that a statement made before a tribunal is not admissible as evidence against that person, the correctness of this is in doubt.

However, the significant point is that the main reason Mr Haughey might not wish to give certain evidence appears, from the evidence given already, not to have anything to do with the possibility of criminal proceedings.

Rather it might stem from the danger of disclosing information which would help to fuel an action by the Dunne family to recover the alleged payment of £1.3 million. And a significant point is that this would be a civil action and therefore not a ground on which Mr Haughey could claim this privilege.

It should be said that at the beef tribunal witnesses who pleaded the self incrimination privilege were not required to detail, much less justify, this plea. What if (just to take a hypothetical example) Mr Haughey were simply to say blankly that to answer such a question might incriminate him?

The tribunal, if it accepted the existence of the self incrimination privilege, would be faced with deciding whether to permit cross-examination of Mr Haughey as to his justification for this plea; or whether to rule that such cross-examination would itself violate the privilege rule.

We ought to emphasise that privilege is a many headed beast, and the area just discussed is a distinct category from that of the privilege which might be thought to arise in connection with the records of the conversation between Mr Ben Dunne's solicitor and Mr Haughey which on Friday were sealed and sent up to Kinsealy.

Given that it was Mr Dunne's solicitor it seems unlikely that legal professional privilege, or any other category of privilege, would arise in these circumstances.