Ruling putting off Haughey trial must be tested by higher court
On March 7th 1997, Charles Haughey sent a statement to the McCracken tribunal into payments to politicians by Dunnes Stores. In it he said that he had never received "any payment in cash or in kind" from Dunnes Stores or from Ben Dunne.
Four months later, he sent another statement to the tribunal. It said, among other things, that although he accepted that payments of £1.3 million had been "received for my benefit" by his accountant Des Traynor, he had "no knowledge of the circumstances surrounding the payment of such monies". He specifically denied that Ben Dunne had called to his house and handed him three bank drafts totalling £210,000.
Just two days later, Charles Haughey sent a terse third statement to the tribunal. He acknowledged that he did in fact know that Ben Dunne was the donor of the £1.3 million he had received and that Ben Dunne did hand him those three bank drafts in November 1991. A week later, in his oral evidence, he admitted that he had "not co-operated with this tribunal in a manner which would have been expected of me", and that he had not even told the full truth to his own lawyers.
As he accepted under questioning, Charles Haughey had decided to change his tune only because the tribunal had amassed such a weight of evidence that "I was looking at the fact of inevitable disclosure".
Yet, even then, he did not present the tribunal with an account that it was prepared to accept. Key aspects of what the former Taoiseach told Mr Justice McCracken under oath are described in his report as "unacceptable", "untrue", "quite unbelievable" and "factually incorrect".
On any weekday, anyone can walk into the Government Publications Office in Dublin and examine or purchase that report. One full chapter is headed "Offence by Mr Charles Haughey". It begins with a reminder that under the Tribunals of Inquiry (Evidence) Acts of 1921 and 1979, a person who "by act or omission obstructs or hinders the Tribunal in the performance of its functions" is "guilty of an offence".
This report was produced by a highly respected High Court judge at the behest of the Oireachtas. It was published, presumably, in order to inform public opinion. Anyone who reads it will undoubtedly be led towards a belief that Charles Haughey may well have obstructed and hindered the McCracken tribunal. Bizarrely, on the basis of Judge Kevin Haugh's decision this week to postpone indefinitely Mr Haughey's trial on charges that he did precisely that, the continued availability of the McCracken report itself would seem to be of questionable legality.
There is no doubt that the primary blame for this absurd situation lies with the Tanaiste, Mary Harney. Last month, in a week when it became clear that her decision to back the appointment of Hugh O'Flaherty to the European Investment Bank did not even have the support of her own party, she gave an interview to Justine McCarthy of the Irish Independent. Some of what she said about Charles Haughey was interpreted by Judge Haugh this week as indicating that he "should be convicted" and that "he should spend time in prison". She should have known that at the very least she was giving Charles Haughey grounds for a further attempt to delay or prevent his trial.
But Mary Harney's wild misjudgement has now been compounded by Mr Justice Haugh's ruling. In his proper and admirable concern to uphold the right to a fair trial, he has lost sight of a whole other set of rights. The rights of the public to be informed, of politicians to debate serious issues and of the media and pressure groups to comment and protest have all been placed in question.
If Judge Haugh had confined his ruling to the effect of Mary Harney's comments, it might be possible to regard the indefinite postponement of Charles Haughey's trial as a very unfortunate necessity. The point of principle - that members of the Government should not seem to interfere with the business of the courts - is important enough to be upheld even if it means that behaviour which a tribunal clearly felt might be in breach of the law goes unpunished.
But the ruling goes much further. It is at once very wide and very vague. Judge Haugh gave no clear indication of where legitimate comment on the issues which have emerged from the McCracken and Moriarty tribunals ends and interference with the right to a fair trial begins.
One of the problems is that the ruling is not based on comments about the actual trial that has now been postponed. Judge Haugh acknowledged that the issues before that trial - did Charles Haughey unlawfully obstruct or did he not? - are "narrow and clearly identifiable". And he actually rejected a submission from Mr Haughey's lawyers that a public comment that referred precisely to that issue was prejudicial.
That comment, made by the broadcaster John Bowman in the course of a Questions and Answers debate, was to the effect that Charles Haughey "had obstructed the McCracken tribunal and had admitted this". This remark, the judge found, had not "created any real potential of irremediable prejudice". So in the one concrete case where someone in a position of public prominence might be said to have prejudged the outcome of the trial, the judge found that there was no great problem.
In discussing Mary Harney's comments, indeed, he specifically accepted that they did not refer to the trial of the obstruction charges: "she was not speaking of the proceedings which are before this court." Nor did he suggest that the other public comment which he found prejudicial - a leaflet and poster headed "Jail the Corrupt Politicians" - referred to the issues in that trial.
So what we have is the rather peculiar situation in which comments that did not refer to the trial are said to have prejudiced it, while comments which did are found not to have done so.
What the judge objected to were broad comments which tended to attack Charles Haughey's character, rather than to specific remarks about the questions at issue in the trial.
This very broadness is what is so alarming. It makes it impossible for politicians, journalists, protest groups or anyone else to know with any certainty what they can and cannot say about one of the key issues in contemporary Irish public life.
It is even possible to read the judgment as implying that the less specific the remarks are, the more potentially prejudicial - and thus illegal - they might be. And, for that matter, as implying that the worse one's public reputation is, the less likely one is to have to stand trial for any offence.
At the very least, the courts should be asked to say whether that is really what the judicial system wants.