The Director of Public Prosecutions has asked the High Court to quash a proposal to send potential jurors in the upcoming trial of former Taoiseach Mr Charles Haughey a questionnaire.
This would ask if they have had any association with Mr Haughey, Dunnes Stores or the Moriarty or McCracken tribunals.
Mr Maurice Gaffney SC, for the DPP, argued at a hearing yesterday before a three-judge court that if a trial judge was allowed to examine potential jurors, and decide if certain persons should be challenged if called for jury service, the public perception of a just trial and a juror's right to privacy was damaged.
Mr Haughey is accused of obstructing the McCracken tribunal. His lawyers have claimed that in the current climate there is a real risk he would not get a fair trial.
Judge Kevin Haugh in the Circuit Court last month refused to adjourn his trial but made an order on February 14th that 800 members of the panel summoned for jury service regarding Mr Haughey's trial be sent a questionnaire and an explanatory letter. The DPP got leave to challenge this decision and a divisional court began hearing that challenge yesterday. The Attorney General and Mr Haughey are represented.
The proposed letter from the Circuit Court stated that, because Mr Haughey was a well known public figure, "special or extraordinary measures should be taken in the selection of the jury empanelled for that trial".
This was "to try to ensure that persons who may not feel able to try the case in a dispassionate and unbiased manner, or persons whose circumstances might make it appear undesirable that they should serve on such jury, should be identifiable to the parties so that if selected on ballot they may be challenged or that they may be excused from service".
The proposed questionnaire would ask the age and occupation of each potential juror and whether the juror had been employed by Dunnes Stores companies or had any association with Mr Ben Dunne, any member of the Dunne family or Dublin solicitor Mr Noel Smyth.
It would also ask if they had been employed or associated with Guinness Mahon, Irish Intercontinental Bank, Ansbacher, Cayman or Cement Roadstone Holdings (CRH).
They would be further asked whether they were involved in the investigations and inquiries associated with the McCracken or Moriarty tribunals or whether they had attended the tribunals.
Potential jurors would also be asked whether they or their families were employed in newspapers or television; were employed or associated with Mr Haughey or his family; were influenced by the McCracken tribunal report or the Moriarty tribunal proceedings, and whether they could put all of the publicity concerning Mr Haughey from their minds and whether their opinion of Mr Haughey had been altered by what was in newspapers or on television.
The DPP is seeking a declaration that the Juries Act 1976 and the Constitution do not permit the inquisition or interrogation of potential jurors in the manner contemplated by Judge Haugh's order.
The DPP claims there is a serious risk that the questionnaire might excite affections (otherwise dormant and inoperative) in the person questioned which would interfere with that person's capacity at the trial.
The DPP also argues that the Constitution and common law require that jurors selected for a trial be a random sample of those eligible for service.
Mr Gaffney said Judge Haugh did not have the jurisdiction to order such a questionnaire.
Opposing the DPP's challenge, lawyers for Mr Haughey claimed that as a result of pre-trial publicity he had been seriously injured "across a broad front" and exposed to hatred, ridicule and contempt.
They also claimed the "expression of certain views concerning Mr Haughey in the media appeared to be almost designed to seek to prevent a fair trial".
It is argued Mr Haughey is in a unique position and "special precautions and unusual measures were appropriate".
The Attorney General claims the 1976 Juries Act contained a complete code governing the jury service and there was no facility for cross-examination on behalf of an accused person.
He also claims the 1976 Act conferred no power to require jurors to provide any information to the court or concerned parties and that the appropriate mechanism for addressing juror bias was through the trial judge warning and directing the jury when empanelled.
The Attorney General denies the circumstances surrounding the trial of Mr Haughey justify the issuing of a questionnaire.
The hearing continues today.