DPP given permission to challenge decision on Haughey

The director of Public Prosecutions was given leave yesterday to take a High Court challenge to the decision of a Circuit Court judge to defer indefinitely the trial of former Taoiseach Charles Haughey on charges of obstructing the McCracken tribunal.

Mr Maurice Gaffney SC, for the DPP, said the case was "of the gravest importance".

The matter deals with the situation which will obtain when the possibility of a fair trial is thought to be in danger because of adverse publicity, he said.

Mr Justice Kelly granted leave to challenge, on 13 grounds, the decision of Dublin Circuit Criminal Court Judge Kevin Haugh, made on June 26th last, to stay all further proceedings against Mr Haughey without leave of that court.

Judge Haugh found there was a real and substantial risk Mr Haughey would not receive a fair trial due particularly to prejudicial remarks regarding the matter made by the Tanaiste, Ms Mary Harney, and to a leaflet which had been circulated.

Mr Gaffney said the DPP was contending Judge Haugh had exceeded his jurisdiction by refusing indefinitely to fix a date for the trial. Granting leave to the DPP to take judicial review proceedings challenging the decision, Mr Justice Kelly said the 13 grounds advanced for the challenge included repetitious material and the grounds could essentially be distilled to two. The first amounted to an attack on Judge Haugh's jurisdiction to make the order or even entertain the application by Mr Haughey for such an order.

This was a "curious" ground in circumstances where the DPP had not made that point to the Circuit Court judge himself, Mr Justice Kelly remarked. It was clear that, when hearing Mr Haughey's application to defer the trial on grounds of prejudicial publicity, Judge Haugh had heard evidence and submissions.

If the Circuit Court judge had no jurisdiction to deal with the application, this would have been at the forefront of such submissions, but the argument was not made.

Mr Justice Kelly said the second leg of the DPP's case was that Judge Haugh's decision was wrong in law and also irrational and was arrived at in circumstances where there was no actual evidence of bias or prejudice put before the judge.

The DPP contended it was not sufficient that "voluminous" material was put before the judge but argued there should have been evidence from public relations experts as to the actual effect of the alleged prejudicial material. The DPP had not sought to adduce such evidence at the Circuit Court hearing.

In applying for leave, Mr Gaffney said it was clear from Judge Haugh's decision that it would be Judge Haugh who would decide whether Mr Haughey could have a fair trial. The judge had fixed the trial to take place in the future on a date only Judge Haugh could determine. Judge Haugh had no jurisdiction to do that. There was no situation where a judge of the Circuit Court was in charge of a case until the case came on for hearing.

Mr Gaffney agreed with Mr Justice Kelly that the DPP had not sought to challenge Judge Haugh's jurisdiction at the Circuit Court hearing. But the fact the DPP did not object did not validate the order made by Judge Haugh, he argued.

Mr Gaffney said the DPP would be contending that jurors themselves could state whether they regarded themselves as prejudiced towards a defendant. A juror had an opportunity to say whether they were properly able to carry out the functions of a juror. The only time it was possible to say a jury could not be found to give a person a fair trial was when 12 people could not be found to say they were in a position to properly carry out the functions of a jury.

The DPP was contending Judge Haugh erred in failing to seek to give effect to the constitutional imperative of jury trial by attempting to empanel a nonbiased jury in accordance with the provisions of the Juries Act to try Mr Haughey in due course of law.

It would also be argued the judge exceeded his jurisdiction in adjourning the trial indefinitely in the absence of any evidence that an impartial jury could not be found.

The judge also exceeded his jurisdiction in indefinitely adjourning the trial on the basis of a belief, conjecture or speculation by him that no jury could give Mr Haughey a fair trial.

Mr Justice Kelly asked was there any legal authority for the proposition that a juror was the competent person to decide if they could give a person a fair trial? Mr Gaffney said there was no authority outside the Juries Act itself.

Mr Justice Kelly also asked counsel in the course of his application whether he was arguing Judge Haugh should have deferred to PR people in deciding whether Mr Haughey could receive a fair trial. Mr Gaffney replied that the DPP's entire case was that this was a matter for a jury.

Mr Justice Kelly said if the order granting leave was served on Judge Haugh and Mr Haughey on Monday next, they would have seven days to file opposition papers. He would make the motion returnable for July 17th.