THE HIGH COURT
JUDICIAL REVIEW
		1997 No. 423 J.R.
BETWEEN
ZOE DEVELOPMENTS LIMITED
		APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE NATIONAL AUTHORITY FOR OCCUPATIONAL SAFETY AND HEALTH
		RESPONDENTS

Judgment of Mr. Justice Geoghegan delivered the 3rd day of March, 1999

	This is an application by way of judicial review to stop a criminal prosecution proceeding against the Applicant.  That Order is being sought against the First named Respondent, the Director of Public Prosecutions.  As against the Second named Respondent what is sought is an order restraining it from publishing or circulating by press release material calculated to prejudice the jury.  
	Although the grounds on which relief is sought are in six numbered paragraphs in the Statement of Grounds they are effectively twofold:-

1.	That on 6th November, 1997 the Second named Respondent issued a press release to the media which contained the information that the Applicant had twelve previous convictions in the period since 1991 and that there were "two further potential indictable offences pending".  It is further complained that the press release stated that three persons had been killed in accidents on the sites managed by the Applicant.  The allegation is that the press release was issued knowing that a certain criminal prosecution against the Applicant was listed for trial before judge and jury in the Dublin Circuit Court for 8th December, 1997.

2.	That in an affidavit used by the Second named Respondent to ground an ex parte application to the High Court on 10th November, 1997 there contained the information that the Applicant had twelve convictions notwithstanding the proximity of the criminal trial.  It is alleged that the Second named Respondent knew or ought to have known that the disclosure of the convictions was an activity which carried a real or substantial risk of prejudice to the trial of the Applicant.  

3.	The press release complained of read as follows:-

	"PROHIBITION NOTICES SERVED ON UNSAFE DUBLIN                BUILDING SITE
	
	Earlier this week a building worker was killed on the Zoe Developments Limited site at Charlotte Quay, Dublin 4.

	The investigation by the Health and Safety Authority's Inspectors has resulted in the issue of two prohibition notices today to stop certain works on this unsafe site.  Work, which is the subject of the prohibition notices, cannot now continue until the developers can convince the authority that they are capable of managing this site in a safe manner.

	The authority took this course of action in the light of Zoe Developments Limited previous safety record of convictions on twelve charges over the 1991 - 1997 period and two further potential indictable offences pending.  During this period three people have been killed in accidents on Zoe Developments Limited managed sites.

	For further information please contact:-

	Vincent McGauran,                      or	Jim Holmes,
	Health and Safety Authority,	Health and Safety Authority,
	10 Hogan Place,	10 Hogan Place,	
	Dublin 2.	Dublin 2.
	Tel:  614 7000	Tel:  614 7000
	Email:  vincentm @ hsa.ie	Email:  jimh @ hsa.ie."

Before I comment further on this press release I think I should refer to what Mr. Liam Carroll, Managing Director of the Applicant company and Mr. Tom Walsh, Director General of the Second named Respondent had to say about it in their respective affidavits.  Mr. Carroll in paragraph 6 of his affidavit said as follows:-

	"The press release, as appears from the face of it, related to the issue of prohibition notices by the Second named Respondent to the Applicant.  However, the press release was issued in full awareness on the part of the Second named Respondent that the trial referred to above was listed for the 8th December, 1997.  Further, the Second named Respondent must have known that the mention of the matters contained in the third paragraph of the press release would be grossly and irredeemably prejudicial to the Applicant at the trial."

Mr. Carroll went on to say that the press release stimulated enormous interest on the part of the media and led to the publication of articles in various newspapers.  These are included in a book of copy extracts from newspapers which is exhibited.  Mr. Walsh, in his affidavit, at paragraph 8 explains that the reason reference was made to the previous convictions of the Applicant in the press release "was to explain why the authority had taken the step of issuing prohibition notices in respect of certain of the works being carried out at the Applicant's Charlotte Quay site and the exclusive concern of the authority at that stage was to prevent further injury to workers at that site".
	I should make it absolutely clear at this stage that, in my view, it was totally wrong for the Second named Respondent to have issued a press release referring to the previous convictions of the Applicant when within a very short time a criminal prosecution against the Applicant was to the knowledge of the Second named Respondent going to take place.  It is a long established and sacred rule that in a criminal trial the jury is not told of previous convictions.  That being so, it is extremely important in the interests of a fair trial that in so far as it is at all possible there should not be any statement made in the public domain disclosing previous convictions when the trial is imminent.  It is of course all the more important that such a public statement should not be made by the prosecution authority itself or by what I might describe as a quasi prosecution authority by which I mean an authority engaged in the investigation of the offence.  It would seem to me that in this instance the Second named Respondent is in a somewhat analogous role to that of the Gardai in an ordinary criminal investigation.  A body such as the National Authority for Occupational Safety and Health with a direct prosecuting role in the case of summary proceedings and a quasi prosecution role in cases of prosecutions upon indictment should thoroughly acquaint itself with the rules established over centuries for achieving a fair trial.  There was, in my view, a breach of that duty of care which would have been expected from such an authority in their referring to the previous convictions in the press release.  I do not think that in the context in which the press release was issued any exception can be taken to any other part of it.  But although there was a breach of duty I am satisfied that it was not deliberate.  By that I mean that I do not think the Second named Respondent referred to the previous convictions in the press release with the deliberate intention of influencing the outcome of the pending criminal trial which of course related to different events.  For reasons which I will be developing later on in this judgment that fact is of considerable relevance.  I might also add at this stage that as a possible or arguable impediment to a fair trial the reference to the previous convictions in the press release virtually pales into insignificance compared to publicity arising from remarks made in Court in civil proceedings involving an application to close down a site.  I will also be dealing more fully with those proceedings in the course of this judgment.  
	I first have to consider whether the pending trial should be stopped by reason of the reference to the previous convictions in the press release.  In this connection, I have been referred to a number of authorities but I am satisfied that the law on whether and in what circumstances trials should be aborted because of pre-trial publicity is now well established by the Supreme Court in two important cases, D. -v- the D.P.P., 1994 2 I.R. 405 and 
Z. -v- the D.P.P., 1994 2 I.R. 476.  In the D. case Finlay C.J. in a minority judgment and in the context of an allegation that pre-trial publicity would prevent a fair trial expressed the following view:-

	"The fundamental nature of the constitutional right involved and the incapacity of the court further to intervene to defend it leads, in my view, to the conclusion that the standard of proof which the court should require from the applicant in this case concerning his allegation of the likelihood of an unfair trial is that he should be required to establish that there was a real or serious risk of that occurring.  Such an approach is consistent with the view taken by this court in the different context of extradition proceedings in the case of Finnucane -v- McMahon, 1991 I.R. 165."

Blayney J. and Denham J. in their respective majority judgments both accepted the standard proposed by Finlay C.J. as outlined.  On the facts of that particular case the majority of the Supreme Court took the view that there would not be an unfair trial if it was allowed to proceed.  Blayney J. observed as follows:-
	"The question then is, would a juror whose sympathy for the complainant had been aroused by the article, be incapable of giving an impartial verdict?

	I would accept that there would be a slight risk of this, but no more than there would be in any other case where there is room for sympathy for the complainant.  In a criminal trial the members of the jury are made very aware of the heavy responsibility they have as the judges of the guilt or innocence of the accused.  It begins with their individually taking an oath to 'well and truly try the issue whether the accused is guilty or not guilty of the offence charged in the indictment preferred against him and a true verdict give according to the evidence'.  They are then reminded by the trial judge in his charge at the end of the case that they must decide the case only on the evidence before them; that they must put out of their minds anything they may have heard or read about the case from any other source, and that they must not allow themselves to be swayed by sympathy but decide the case on the facts.  What must be borne in mind also is the impact made on the jury by hearing the witnesses in the case, by having the evidence at first hand presented to them.  Are they going to permit their assessment of that evidence to be influenced by a vague recollection of something they read in a newspaper some months before, particularly when to do so would be to disregard their oath and to disregard the clear directions given to them by the trial judge?  In my opinion, there is not a real or serious risk that they would permit themselves to be influenced in this way and accordingly I would allow this appeal and set aside the order of prohibition granted in the High Court."
	At first sight the judgment of Denham J., although in agreement with the judgment of Blayney J., might seem to contain observations helpful to the Applicant in this case.  Denham J. laid emphasis on the fact that the media coverage was not saturation coverage and that all that was involved was a single article in a Sunday newspaper.  Undoubtedly in this case there has been saturation media coverage hostile to the Applicant but it was not coverage dealing specifically with the events the subject matter of the pending criminal trial.  Furthermore, the coverage arose from the activities of the Applicant itself and any alleged prejudice in the forthcoming trial as a consequence is self induced prejudice.  I think that this is a factor which must be taken into account to some extent at least.  All the publicity in the newspapers and in radio interviews, etc. arose naturally as a consequence of unfortunate incidents on the sites of the Applicant or from the press release arising out of them or the civil court proceedings to which I have already referred.  If a building company attracts ongoing natural and lawful publicity as a result of its own activities, it cannot be heard to complain, in my view, that such publicity prevents a fair trial relating to quite different events.  I will, however, return to the problem of the disclosure of previous convictions.  
	In the Z. case, Hamilton P. (as he then was) in the High Court following the principles laid down in the D. case refused to grant a permanent stay of criminal proceedings.  He quoted the following passage from Finlay C.J. in his judgment in the D. case at p.468:-

	"Even though it is clear that in the interests of justice much greater vigilance should be shown by newspapers in the type of publicity which they give to crimes in which trials are still pending, it is not to be taken that every criminal trial in respect of an offence which has received significant publicity will by that fact become an unfair trial."

Hamilton P. then comments as follows:-

	"If a contrary view were taken the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity.  When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness particularly to the Accused is heavy and burdensome but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues save where there is a real risk of the likelihood of an unfair trial.  The responsibility is discharged by controlling the procedures of the trial, by adjournments or other interlocutory orders, by rulings on the presumption of innocence, the onus of proof, the admissibility of evidence and especially by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.  More than usual care, however, is called for in the empanelling of a jury and in the conduct of a trial in cases of this nature".

The decision of the High Court was affirmed on appeal where the Supreme Court reiterated the general principle laid down in the D. case.  Finlay C.J., however, added a rider as follows:-

	"With regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of this court in D. -v- Director of Public Prosecutions, that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge.  The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial."

	Applying these principles to the case the subject of this application I have come to the conclusion that for a combination of reasons there is not a serious risk of an unfair trial.  There is a world of a difference between a criminal prosecution against an individual person who might be subject to a prison sentence and whose conviction would be dependent upon contested factual evidence (particularly if it included identification evidence) being believed on the one hand and a prosecution against a body corporate in which the obtaining of a conviction will not be dependent in any way upon the identification of the Accused or in any substantial way upon contested factual evidence but rather on the assessment of expert evidence adduced before a jury.  It is difficult to see in those circumstances that a juror, acting in accordance with his or her oath and upon proper instructions from the trial judge, would allow himself to be either actually or subliminally prejudiced against the accused to the extent of bringing in a wrong verdict merely because of some residual memory of having read or heard of previous convictions.  Interestingly, the question of publicising previous convictions did arise in a rather narrow context in the English case of R. -v- Fletcher (1949) 113 J.P. 365.  In that case, a person who had been committed for trial by justices applied to the justices for bail.  The police officer in charge of the case objected and informed the justices that the applicant had repeatedly been convicted before and told them what the convictions were.  The applicant contended before the Court of Criminal Appeal that his trial had been prejudiced because the jury might have learnt of his previous convictions as a consequence of their being mentioned in court.  The evidence was that the newspaper reports of the hearing before the Magistrates made no reference to the convictions.  Humphreys J., delivering the judgment of the court, held that there was no ground for interfering either with the conviction or the sentence but he did observe as follows:-
	
	"What is very desirable is that, if newspapers are reporting the case, they should not include in the report any mention of the previous convictions.  The newspapers in this case, according to the police report, acted perfectly properly in not mentioning the convictions at all."

I do not think it can be read into that case that if some newspaper had in fact reported the convictions, the Court of Criminal Appeal would have held there was a mistrial but the court would have had to look at all the surrounding circumstances and consider whether there was a real risk that the trial was unfair.  I do not think that there can be any hard and fast rule.  For instance, there may be a notorious criminal who is regularly convicted in the courts and whose convictions are reported in the newspapers.  It cannot be said that if yet another trial is pending against him that trial will necessarily be unfair but the trial judge would have to be extra careful in his directions to the jury.
	The Book of Evidence in connection with the pending criminal prosecution is before me and it is clear from it that the case against the Applicant will be primarily based on the evidence of Mr. Kieran Sludds, a Health and Safety Inspector and qualified engineer with the Second named Respondent.  To a large extent his evidence will be based on the photographs and his own observations.  In so far as his expert judgment could be faulted there will be no problem about the Applicant if it wishes to do so producing its own expert.  The case does not seem to me to be likely to turn on credibility of the Applicant's own witnesses except to the limited extent as what instructions may have been given.  The position might be quite different if an offence had been committed which could have been committed by somebody other than the Applicant and that therefore a question of identity arose or where criminal liability depended essentially on who was to be believed.  But that does not appear to be the case here.
	I now turn to the civil proceedings commenced in the High Court against the Applicant on 10th November, 1997.  It is complained that the grounding affidavit contained "a gratuitous and unnecessary reference to the convictions already referred to in the press release".  In my view, the Second named Respondent with its ongoing responsibilities for safety was perfectly entitled to bring the proceedings in the High Court which it did and I am further of the view that Mr. Justice Kelly who heard that application would not have had a proper appraisal of the situation if he had not been told about the previous convictions.  Indeed, he himself referred to them in his observations.  I think it likely that the reference to the convictions in the affidavit was for the purpose of the civil application only and that neither the deponent nor any other officer of the Second named Respondent intended by disclosing the convictions in the affidavit to prejudice the criminal trial which related to a different matter altogether.  It was reasonable in the interests of public safety that the convictions should have been referred to.  That they had to be referred to was as a consequence of conduct by the Applicant and I do not think in those circumstances the Applicant can be heard to say that his criminal trial on another matter must be aborted.  But even in that situation there may well have been a case for a lengthy adjournment of the trial and I will return to that later. 
	I have already expressed the view that the publicity arising from the press release including the various newspaper articles and broadcasts, interviews, etc. arising as a consequence of it pales into insignificance when compared to the likely impact on public consciousness of the strident and colourful language used by Mr. Justice Kelly.  The remarks of Mr. Justice Kelly were fully justified on the evidence and submissions before him but I suspect that his language might have been different had he been informed of the impending trial.  The Applicant says that he should have been informed by the Second named Respondent.  On the other hand it is argued on behalf of the Second named Respondent that the Applicant would have been the first to object if such a prejudicial and irrelevant matter had been conveyed by it to the judge particularly having regard to the fact that the Second named Defendant could not be expected to have anticipated that such strong language would necessarily be used.  I agree with the submissions of the Second named Respondent in this regard.  I do not think that there was any obligation on the part of the Second named Respondent to inform the judge of the pending prosecution in connection with a different matter.
	As I read the Statement grounding the Application for judicial review the remarks in court of Mr. Justice Kelly which received massive publicity do not form part of the grounds for stopping the trial.  The only ground for relief which relates to the civil proceedings of the 10th November, 1997 is the allegation that the affidavit disclosed the twelve previous convictions without disclosing the pendency of the prosecution.  
	I have already indicated that having regard to the nature of the prosecution and the issues which will be involved in the trial I do not think that there is a serious risk of an unfair trial.  This would seem to me to be the position even if the remarks of Mr. Justice Kelly which received such publicity were to be taken into account despite this not being claimed.  But I am equally of the view that to achieve a fair trial a lengthy adjournment was absolutely essential so that the so called "fade factor" would come into play.  Judge O'Connor in the Circuit Court refused an adjournment as well as refusing to stop the trial but the particular adjournment application which was made before him was in order to prepare and bring a judicial review application.  He seems to have thought that that could be done without such an adjournment.  In the event, an application was brought for judicial review and in granting leave the court directed a stay on the criminal proceedings.  If a trial is still to take place I would take the view that it should be postponed until the Michaelmas Sittings in case of any further jogging of jurors' memories as a consequence of publicity attached to the decision in this judicial review application.  
	However, I must now consider whether in fact there should be a trial because the issue of prejudice is only one of the two issues relied on by Mr. Hardiman in argument for preventing a trial.  It is also argued and indeed very forcibly argued that independently of whether there would be prejudice to a fair trial or not, there has been prosecutorial misconduct in this case sufficient to warrant the court prohibiting the trial.  I must point out at this stage that the Statement grounding the Application does not seem to make any reference to prosecutorial misconduct but as a great deal of the argument at the hearing was taken up with it without apparent objection I intend to comment on it.  In this part of his argument Mr. Hardiman, Counsel for the Applicant, principally relied on Reg. -v- Horseferry Road Court, ex parte Bennett, 1994 1 A.C. 42 and in particular on the closely reasoned speech of Lord Lowry in the House of Lords.   Having expressed the view supported by authority cited that the court is entitled to protect its process from abuse Lord Lowry says the following at p.74 of the report:-

	"Whether the proposed trial would be an unfair trial is not the only test of abuse of process.  The proof of a previous conviction or acquittal on the same charge means that it will be unfair to try the accused but not that he is about to receive an unfair trial."

After citing other examples Lord Lowry goes on to express the view:-

	"That a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either
	(1)	because it will be impossible (usually by reason of delay) to give the accused a fair trial; or
	(2)	because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case".

	If I was satisfied that, as a matter of probability, the disclosure of previous convictions by the Second named Respondent either in the press release or in the affidavit grounding the application to the High Court was done deliberately with the intention of prejudicing the jury in the criminal trial I would, without hesitation, grant an Order of Prohibition as sought irrespective of whether a fair trial could be achieved or not.  The principle so eloquently explained by Lord Lowry derives in his view from the common law but such principles would be even more strongly entrenched in Irish law having regard to the Constitution.  The fact that the First named Respondent is the prosecutor strictly speaking is a technicality and irrelevant in this regard.  The Second named Respondent is in a quasi prosecutorial role and has effectively carried out the investigations on foot of which the Director of Public Prosecution brings his case.  Even in a case, therefore, where the office of the Director of Public Prosecutions acted impeccably I think that prohibition would be appropriate if the National Authority for Occupational Safety and Health deliberately attempted to abuse the process by disclosing convictions with a view to prejudicing the outcome of the criminal proceedings.  However, on the facts of this case and particularly having regard to the contents of the affidavit of Mr. Tom Walsh I do not believe that there was any deliberate misconduct on the part of the Second named Respondent and therefore even if Mr. Hardiman could successfully get over the problem that prosecutorial misconduct did not form part of the case in the Statement of Grounds the Applicant could not rely on it as a ground for stopping the trial.
	I propose, therefore, to refuse the several reliefs sought in this application but I will make an order restraining the First named Respondent from seeking to have the pending trial listed for hearing before the Michaelmas sittings of 1999.  I would also express the view that the trial judge should be particularly careful in this case having regard to the pre-trial history to ensure that there is a perfectly fair trial.  I realise of course that all judges do this but particular cases may require particular additional measures.  It is for the trial judge to decide whether any additional precautions or directions would be appropriate in this case.  I do not think it necessary to grant the Injunction sought against the Second named Respondent.
	There is just one other matter which I should mention.  In claiming that there was a serious risk of an unfair trial, the Applicant purported to rely in part on surveys carried out by Drury Communications Limited as described in an affidavit of Annette Bolger sworn on the 7th day of December, 1998.  I allowed the affidavit and a short supplemental affidavit to be opened and postponed any final decision as to its admissibility.  I came to the conclusion that it should not be admitted and have not relied on it or paid any regard to it in preparing this judgment.