A divisional (three-judge) High Court is being assembled for March 27th to hear a challenge by the Director of Public Prosecutions to the decision that questionnaires be sent to potential jurors in the case in which the former Taoiseach, Mr Charles Haughey, is accused of obstructing the McCracken tribunal.
The DPP claims that the decision of Judge Kevin Haugh of the Circuit Court on February 14th last, directing that a general questionnaire be sent to potential jurors, has profound implications for the manner in which juries are sworn in this jurisdiction.
The DPP will argue that Judge Haugh's order, made on the application of lawyers for Mr Haughey, is unconstitutional and in breach of the Juries Act, 1976.
Mr Maurice Gaffney SC, for the DPP, yesterday told the president of the High Court, Mr Justice Morris, that the DPP considered the matter "of great seriousness". If the procedure outlined by Judge Haugh was found to be correct, the consequences for the selection of juries in criminal and civil cases was likely to be profound, he said.
Mr Gaffney was applying to Mr Justice Morris for an early date for the hearing of the DPP's challenge, and for the matter to be dealt with by a divisional court.
Mr Justice Morris had earlier granted leave to the DPP to take the challenge. The DPP will seek an order quashing Judge Haugh's decision of February 14th last that the County Registrar would send a questionnaire to each juror summoned for service in the case against Mr Haughey. The questionnaire was to be accompanied by an explanatory letter, and to be answered by each person.
The DPP is also asking the High Court to declare that the Juries Act, 1976, the Constitution and the common law of Ireland do not permit the interrogation of potential jurors in the manner contemplated by Judge Haugh's order.
The DPP will argue that the procedure for selection of juries under the Juries Act has not been shown to have failed, on the whole, to achieve the selection of impartial juries, and that a departure from the procedure would first need to be justified.
He will also argue that there is a serious risk that the questionnaire may excite affections, otherwise dormant and inoperative, which would interfere with that person's capacity to perform fully the duties of a juror in accordance with a juror's oath.
The objective of securing a jury which would impartially and fully perform its functions could be achieved through appropriate warnings to the jury panel from the trial judge, the DPP contends.
He will further argue that the constitutional right to privacy is a bar to compelling the recipients of the questionnaire to answer it, and that the letter accompanying the questionnaire is deficient because it fails to make that point and also fails to explain to potential jurors the effect answers to the questionnaire may have on the jury selection procedure.
It is also the DPP's case that it would require legislation to compel recipients of the questionnaire to answer it. It is difficult to see how such legislation would be constitutional, the DPP states.
The DPP's action is against Judge Haugh. Both Mr Haughey and the Attorney General are notice parties in the matter.
Yesterday Mr Justice Morris said he would set March 27th as the date for hearing of the action, on the clear basis that the respondents had liberty to apply, by March 20th, to put the matter back if they had insufficient time to deal with it on that date. He directed that opposition papers and submissions be filed by March 13th next.
Mr Eoin McGonigal SC, for Mr Haughey, and Mr Bryan Murray, for the Attorney General, were present in court for the brief hearing of the application.
The trial of Mr Haughey, which was scheduled to begin on March 21st, has been postponed due to the judicial review.
Judge Haugh put a stay on his order last week to allow the State appeal against his decision.