The Director of Public Prosecutions is challenging a decision of the Circuit Criminal Court to send a questionnaire to potential jurors in the Haughey case.
Mr Maurice Gaffney SC, counsel for the DPP, told the court yesterday that the director would seek to have the decision reviewed in a higher court.
Mr Charles Haughey is charged with obstructing the McCracken tribunal. His trial is due to begin on March 21st.
In the first ever attempt in this State to discover the views of jurors in advance of a trial, Judge Kevin Haugh ruled yesterday that a letter and questionnaire be sent out to 800 potential jurors in the trial.
He said he was taking this "exceptional step" because this case was unique.
The letter points out that the accused was a well-known public figure and stresses the importance of a fair and unprejudiced trial, based solely on the evidence.
The letter, which potential jurors are asked not to discuss with anyone, particularly the media, will be accompanied by a questionnaire containing 15 questions.
These ask the potential jurors his or her date of birth and occupation, and also their association with the Haughey family, the solicitor for Dunnes Stores, Mr Noel Smyth, the late Mr Des Traynor or any of the banks with which Mr Haughey was said to have accounts, and the McCracken tribunal.
The questionnaire also asks recipients if they attended sittings of the McCracken or Moriarty tribunals or read the report of the McCracken tribunal.
It asks whether they, or any relative, is employed in the newspaper industry or in television or radio, and whether they have been influenced by the media coverage of the tribunals and Mr Haughey.
When the wording of the letter and questionnaire was being discussed in the Circuit Criminal Court yesterday, Mr Gaffney said that it was a fundamental principle of law that a citizen who got into the witness box and took an oath was sincere and capable of forming an opinion and was fit, able and ready to carry out the function of a juryman.
"A juryman can't be questioned about being fit," he said.
He said a warning to the jury about bias would meet the needs of the situation.
A likely consequence of sending out such a circular would be to resurrect "all those offensive matters which have been canvassed . . . to the disadvantage of the accused".
Judge Haugh said a potential juror would not be inhibited or flustered if answering these questions at home.
They might be in court, as had happened with one juror in the Nevin case, who later recalled a problem she had not mentioned when being sworn because she felt overcome.
He said that in the Maxwell case in England questions had been put to the jury. The questionnaire was intended to assist counsel on both sides with any challenges they might wish to make to individual jurors, not to assist the court.
It was not intended as a sieve to reduce the panel.
"My experience is that challenges without cause shown are on an unscientific basis," he said.
Mr Eoin McGonigle SC, for Mr Haughey, said that the question was how to empanel a jury which could give a fair trial.
In this case the information normally given with a potential juror's name would be insufficient to know if he or she could swear they would give a fair trial.
While it had not been done before, there was nothing in the legal authorities to prohibit it. He did not think Mr Gaffney's concerns were justified.
"What we're doing might be unique to this country, but it is not unique in other countries, where it has been seen to work," he said.
Judge Haugh said he could see no legal principle against it. "I don't share the view that ignorance is bliss. I believe knowledge is power," he said.