A trial of Mr Charles Haughey on charges of obstructing the work of the McCracken tribunal will not now take place for at least a year, if at all. While it emerged on Thursday that the Director of Public Prosecutions wants the case to be heard in the Circuit Criminal Court, it is still not clear that this will happen. Senior legal sources have pointed to a number of issues which will delay a trial and could even ensure that one does not take place.
Circuit Court trials take place before a jury, unless of course the accused pleads guilty. In relation to the charge of obstructing the work of a tribunal the penalties on conviction could amount to a £10,000 fine, two years' imprisonment, or both.
However, legal sources say that while the proposal to have a Circuit Court trial increases the penalties, it would also mean the trial would take place later than if the case remained in the District Court.
There are many legal steps to be taken first. On October 6th next, the State is due to provide a book of evidence against Mr Haughey. The defence is then likely to seek an adjournment to give it time to study this evidence.
The State may then also apply to have a witness or witnesses ordered to come to give evidence on deposition in the District Court. This procedure is used in the case of witnesses who have declined to give statements to gardai investigating a particular case. Bankers, for example, often initially decline to give statements in fraud cases on the grounds of client confidentiality, and they are then forced to do so through this procedure.
It is understood that Mr Ben Dunne has refused to give a statement, and may be summoned to give sworn evidence on deposition. Such witnesses can be examined and re-examined in the court. An account of their evidence is taken down, then shown to them at the end and signed by them.
Once this procedure is complete, the District Court sets a date for a decision on whether the book of evidence and any accompanying depositions together amount to enough material which, if proven, would constitute a sufficient case to be put to a jury to decide. At this hearing, the proceedings of which cannot be published, the State is likely to argue that there is such a case and the defence may well argue that there is not.
If the District Court then decides there is a case to answer, it is open to Mr Haughey's defence to challenge this decision by way of judicial review. A defence would not always take up this option, even if it believed it could argue that the prosecution case was weak. Instead it could choose to exploit any weaknesses at the trial itself in front of a jury, rather than rehearse these arguments in advance, giving the prosecution an opportunity in a judicial review hearing time to rehearse its response.
When and if the case finally gets to the Circuit Court it will join a queue. There is currently a delay of six months before cases coming to the Circuit Court go to trial.
So if the book of evidence is served in October as intended, the very earliest the District Court would finish with the case is Christmas, according to senior lawyers. In January, the case might just have arrived in the Circuit Court, in which case the trial could conceivably take case next July. It is much more likely, senior lawyers agree, not to get under way until autumn 1999 or later. Judicial review proceedings at any stage would put it well into the year 2000.
And then, of course, any guilty verdict would probably be appealed . . . .
Of Course a criminal trial is not the only difficulty that Mr Haughey may have to face. However, his partial victory in the Supreme Court last Tuesday has also put back the Moriarty tribunal's investigations into his affairs.
On Tuesday Mr Haughey and members of his family lost their argument that the legislation under which tribunals of inquiry including the Moriarty tribunal were established was unconstitutional. However, he and some members of his family won their argument that the Moriarty tribunal had used unfair procedures in obtaining information about their bank accounts.
A total of 23 orders of discovery made by the tribunal to obtain information about Mr Haughey and his family's bank accounts are to be quashed on the grounds that Mr Haughey and his family should have been told in advance that such orders were being sought, and given an opportunity to make representations. In the meantime the tribunal is not to have the advantage of any knowledge gleaned from these 23 orders.
Now Mr Justice Moriarty must seek to make these orders again, allowing Mr Haughey and his family to object. If he obtains the orders again, a challenge by way of judicial review is possible. If he fails, then someone being investigated by the tribunal could claim that Mr Justice Moriarty and his team have seen the results of the discovery orders which were improperly made, and therefore were not suitable individuals to continue the investigation.
The result of this uncertainty is expected to be a delay of at least two months in the proceedings of the Moriarty tribunal, and possibly a wait of six months or more. So the tribunal which hoped to begin oral hearings in the autumn is not likely to do so until the new year. The Flood tribunal inquiring into certain planning matters will also be delayed as discovery orders made by it in relation to the bank accounts of Mr Michael Bailey, and his wife, Teresa, and Bovale Developments are also to be quashed.
The Supreme Court decision could have implications for the possible criminal trial of Mr Haughey. It is now open to Mr Haughey's defence to argue that not just the Moriarty and Flood tribunals but also the McCracken tribunal did not use proper procedures in making orders for discovery of documents.
It is the McCracken tribunal which Mr Haughey is accused of obstructing, and so if the defence could show that that tribunal did not behave correctly in respect of its investigations concerning Mr Haughey, this could strengthen its case.
However, legal sources suggest that the defence is highly unlikely to ask Mr Justice McCracken to give evidence in the case. Instead, they could call the registrar of the tribunal to give details of how discovery orders were made by it. Mr Justice McCracken could, however, turn out to be a prosecution witness.
Meanwhile, Mr Haughey's difficulties had a third court outing this week, but this one was in private. On Wednesday his appeal of the Revenue Commissioners' assessment of his tax liabilities arising from the £1.3 million which he received from Mr Ben Dunne is understood to have been heard. Such hearings take place in private, so the details of the tax and any penalties being sought by the Commissioners have not been revealed.