12
May, 2000
LAFFOY
J
The
first named Notice Party (Mr Haughey) stands charged on indictment before
Dublin Circuit Criminal Court on two counts of obstructing the Tribunal of
Inquiry known colloquially as the McCracken Tribunal contrary to the Tribunals
of Inquiry (Evidence) Act 1921, the allegation on the first count being that he
asserted in a letter dated 7th March, 1997 and sent by him to the Tribunal that
he had not received any payment in cash or in kind of the nature referred in
the terms of reference of the Tribunal knowing the assertion to be false, and
the allegation on the second count being that he asserted in a written
statement dated 7th July, 1997 and sent by him to the Tribunal that he never on
any occasion received any of the three bank drafts referred to in paragraph 9
of the said statement knowing the assertion to be false.
The
trial by jury having been fixed for 21st March, 2000, in mid December 1999 Mr
Haughey sought an adjournment of the trial until some reasonable period after
the Tribunal of Inquiry colloquially known as the Moriarty Tribunal had
reported, on the ground that, because of the impact of publicity generated by
the McCracken Tribunal and the Moriarty Tribunal, there is a real risk of a
trial at this time being unfair. The application for an adjournment was heard
by the Respondent, to whom the trial has been assigned, who gave judgment on
the application on 17th December, 1999, refusing the application.
In
his judgment, the Respondent made a number of findings which are relevant to
the issues before this Court. First, he concluded that the standing and
reputation of Mr Haughey had been seriously injured across a broad front and
that he has been exposed to, in the traditional wording of the defamation suit,
'hatred, ridicule and contempt". Secondly he accepted that the issues raised on
the obstruction charges may be fairly described as being relatively narrow and
readily identifiable. On the central issue for determination by him, namely,
whether there is a serious or real risk that Mr Haughey would not receive a
fair trial in the present climate of public opinion having regard to the
damaging pre-trial publicity to which he had already referred, the Respondent
found as follows:-
"I
am not satisfied that there exists at the present time a real or serious risk
that the accused would receive an unfair trial. I believe that persons
empanelled to serve on a jury take their oath seriously and conscientiously go
about their deliberations in a manner directed by a Trial Judge's charge".
Notwithstanding
that the basis on which he refused the adjournment was that a real or serious
risk that Mr Haughey will not receive a fair trial does not exist, the
Respondent went on to say: -
"I
also would consider it appropriate in the instant case to give further
consideration to what additional safeguards or procedures over and above the
norm might be adopted in the matter of selecting persons to serve on a jury,
perhaps even questioning individual potential jury members before either party
is expected to exercise a right of challenge, be it without cause shown or for
cause shown. I would welcome submissions from Counsel in this regard at a time
closer to the date of trial, if they wish to make such submissions".
Arising
out of that suggestion, the Respondent heard submissions of Counsel on behalf
of the Applicant and Counsel on behalf of Mr Haughey on 31st January, 2000, 7th
February, 2000 and 14th February, 2000. Ultimately on 14th February, 2000 the
Respondent ordered that a letter and questionnaire, drafts of which were
annexed to the order, be sent to each member of the jury panel for the trial.
The possibility of a questionnaire accompanying the summons was first suggested
by the Respondent on 31st January, 2000. In making the order on 14th February,
2000, the Respondent explained why he had taken "the exceptional step of
circulating a questionnaire to potential jurors" as follows:-
"I
indicated, when I refused the application for this adjournment that I thought
[Mr Haughey] was in a unique position and it was in those circumstances that
special precautions or unusual measures were called for and were appropriate.
Whilst there has been no Irish precedent for seeking information that may be of
use to the parties by means of a questionnaire, I can find there is no legal
principle that precludes me from doing so".
The
Respondent went on to explain the use he proposed to make of whatever
information would be elicited by the questionnaires as follows:-
"It
seems to me that the primary benefit of a questionnaire is to provide
information to the parties that may assist them in the exercise of their
challenges, be they challenges for cause shown or without cause shown, and I do
not propose to adopt the role adopted by the trial judge in the Maxwell case of
using this or the replies to questionnaires as a kind of sieve, where I
exercising my own judgment would rely on the answers to their questionnaires to
reduce the size of the panel".
That
proposed use was reflected in the draft letter annexed to the order, in which,
having referred to the amount of media interest and attention to which Mr
Haughey has been subject, it was proposed to inform potential jurors that -
"...the
Court has ruled that special or extraordinary measures should be taken in the
selection of the jury empanelled for that trial, 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 the ballot they may be challenged or they may be excused from
service".
The
letter also made it clear that a numbering mechanism was being adopted whereby
the identity of the person completing and returning the questionnaire would be
known only to the lawyers for the prosecution and the defence, the trial judge
and court officials with the objective of protecting the privacy of the
potential jurors as far as possible.
The
first two questions on the questionnaire requested the potential juror to state
his or her date of birth and occupation. The rest of the questions required
only a "yes" or "no" answer. One question queried whether the potential juror
or any member of his immediate family had a connection with Mr Haughey or his
family. Three other questions queried whether the potential juror or a member
of his family has or had a connection with two witnesses whom, according to the
Book of Evidence, the prosecution proposes to call, Noel Smyth and Ben Dunne.
Two further questions queried connections with three banking institutions
(Guinness Mahon, Irish Intercontinental Bank, Ansbacher), with Des Traynor
deceased, and with Cement Roadstone Holdings. Three further questions queried
connections with or interest in the McCracken Tribunal and the Moriarty
Tribunal, ranging from whether the potential juror or any member of his or her
immediate family had been involved in the investigations or inquiries of the
Tribunals to whether he or she had attended sittings of the Tribunals or had
read the report of the McCracken Tribunal. A further question queried
connections with the print and broadcast media. The final three questions
attempted to address the effect of media coverage of and publicity arising out
of the Tribunals concerning Mr Haughey and, in particular, whether the
potential juror felt his or her capacity to render a verdict in accordance with
the evidence might have been influenced or compromised thereby, whether he or
she could put all of the publicity concerning Mr Haughey out of his or her mind
so as to give him a fair trial, and whether his or her views or opinion of Mr
Haughey had been altered by media coverage.
Against
that background, the relief which the Applicant seeks from this Court and has
been given leave to apply by way of Judicial Review for by order of this Court
(Murphy J.) made on 18th February, 2000 is as follows:-
(1)
An order of Certiorari quashing the order of the Respondent made on 14th
February, 2000; and
(2)
A declaration that the
Juries Act, 1976 (the Act of 1976) and the Constitution
and the Common Law of Ireland do not permit the inquisition or interrogation of
potential jurors in the manner contemplated by that order.
The
second named Notice Party (the Attorney General) supports the Applicant's claim
for relief subject to one variation, that the reference to "the Constitution"
be omitted from the declaration sought by the Applicant. The position of Mr
Haughey, as put forward by his Counsel at the hearing of the application, is
that while not seeing himself in the position of legitimus contradictor and
while not having abandoned his primary position, namely, that his trial should
be adjourned until a reasonable period has elapsed after the Moriarty Tribunal
has reported to protect his entitlement to a fair trial, he argues in favour of
the order made by the Respondent as a "second best" alternative in protecting
his right to a fair trial.
In
broad terms, the grounds on which the Applicant was granted leave to seek the
reliefs claimed, on all of which Mr Haughey joins issue, are as follows:-
(a)
That the Respondent had no jurisdiction to make the impugned order and, in
particular, the making of such an order is neither expressly nor impliedly
authorised by the Act of 1976;
(b)
That the device resorted to is not necessary to secure an impartial jury to try
Mr Haughey and, in any event, it cannot be assumed that it would achieve that
end;
(c)
That such device could result in a jury which was neither a truly random
selection nor representative as required by law; and
(d)
That without legislation so stipulating potential jurors cannot be compelled to
answer a questionnaire and the constitutional right of a citizen to privacy is
a bar to such compulsion.
The
core issue which arises for determination on this application is whether the
Respondent had jurisdiction to make the impugned order. A subsidiary issue
raised by Mr Haughey is whether the validity of the impugned order is
justiciable by way of judicial review at this juncture. I agree with the views
expressed by the President of this Divisional Court, Carney J., on that issue.
The
starting point in the determination of the core issue is Article 38.5 of the
Constitution, which, subject to specified exceptions, provides that "no persons
shall be tried on any criminal charge without a jury" and the significance of
that guarantee in the construction and application of the law for the time
being in force in relation to the selection of jurors for a trial. In his
judgment in de Burca -v- Attorney General [1976] IR 38 (at page 74) Henchy J.
considered the purpose of the guarantee in the following passage:-
"There
is no doubt that the primary aim of s.5 of Article 38 in mandating trial by
jury for criminal offences other than minor ones (and offences triable in
special courts established tinder s.3, or in military tribunals established
under s.4 of that Article) is to ensure that every person charged with such an
offence will be assured of a trial in due course of law by a group of lay men
who, chosen at random from a reasonably diverse panel of jurors drawn from the
community, will produce a verdict of guilty or not guilty free from the risks
inherent in a trial conducted by a judge or judges only, and will therefore
carry with it the assurance of both correctness and public acceptability that
may be expected from the group verdict of such a representative cross-section
of the community. Obviously in order to carry out its constitutional function,
a jury must have certain indispensable attributes in both its composition and
its operation. However, neither the issues raised by the pleadings nor the
scope of the argument would justify an attempt in this case to identify those
attributes".
Later
in his judgment, having pointed to the fact that, because jurors are drawn by
lot, a particular jury may turn out to be quite unrepresentative of the
community and having stated that the Constitution cannot be read as postulating
a system of jury selection that will avoid that risk, so that the Courts will
not test the constitutionality of an impugned system of jury selection by
seeing whether it provides the most comprehensive choice possible, Henchy J.
continued (at page 75):-
"Of
course the jury must be drawn from a pool broadly representative of the
community so that its verdict will be stamped with the fairness and
acceptability of a genuinely diffused community decision. The particular
breadth of choice necessary to satisfy this requirement cannot be laid down in
advance. It is left to the discretion of the legislature to formulate a system
for the compilation of jury lists and panels from which will be recruited
juries which will be competent, impartial and representative."
In
the de Burca case the Supreme Court held that the provisions of the
Juries Act,
1927, whereby citizens who were not ratepayers were excluded and women were
conditionally excluded from the list of jurors, were inconsistent with the
provisions of the Constitution.
The
legislature's response to the de Burca case was
the Act of 1976, which
currently governs qualification and liability for service as a juror and the
selection and service of jurOthers It is necessary to consider the provisions
of
the Act of 1976 in depth in the context of the constitutional framework.
The
provisions in relation to qualification and liability for service as a juror
are contained in Part II of
the Act of 1976.
Section 5(4) provides that every
issue that is triable with a jury shall be triable with a jury called from a
panel of jurors drawn from the jury district (which corresponds with the
county) in which the court is sitting.
Section 6 sets out who is qualified and
liable to serve as a juror - every citizen between the ages of eighteen and
seventy years who is entered in the register of Dail electors in a jury
district, unless for the time being ineligible or disqualified from jury
service. Persons ineligible, as provided by
section 7, are those specified in
Part I of the First Schedule: Uachtaran na hEireann; specified persons
concerned with the administration of justice; specified members of the defence
forces; and persons incapable whether physically or mentally. This provision
addresses the lay constituency and the competence of the members of the jury
panel. Persons disqualified, as provided in
section 8, are persons who have
been convicted of certain offences.
Part
III of
the Act of 1976 contains the provisions in relation to the selection and
service of jurors.
Section 11 imposes the task of drawing up a panel of jurors
for each court from the current register of Dail electors on the county
registrar of the county, who must use a procedure of random or other
non-discriminatory selection", omitting persons known or believed not to be
qualified as jurors. By virtue of
section 12(1) the county registrar is obliged
to summon "every person whom he has selected as a juror" to attend at the Court
in question on the relevant day by means of a written summons. These provisions
are clearly aimed at ensuring that the panel is representative of a cross
section of the community.
There
is procedure in
section 9 for the excusal of persons who have been summoned by
the county registrar. He or she is mandated to excuse certain persons who seek
to be excused, for example, persons who have done jury service within the
preceding three years. Persons specified in Part II of the First Schedule are
excusable as of right and these include persons holding important public office
and persons involved in caring professions and such like. The county registrar
has also a discretion to excuse any person summoned who shows to his or her
satisfaction "that there is good reason why he should be so excused". There is
an appeal to the Court against a refusal by the county registrar to excuse. As
a matter of construction, in my view, the "good reason" for which a person may
be excused under
section 9 relates to a personal matter such as illness,
pregnancy, a work commitment and such like. It cannot be intended to encompass
a conflict of interest or bias situation, which would give rise to
incompetence, the consequence of which would be mandatory exclusion rather than
the exercise of a discretion to excuse.
In
effect, the panel of jurors prepared by the County Registrar is a public
document because under
section 16 any person is entitled to inspect it and a
party to the proceedings is entitled to a copy of it free of charge and these
rights are exercisable between the issue of the summonses and the close of the
trial or the time when it is no longer possible to have a trial with the jury.
Moreover, the right of inspection extends to being furnished with information
in relation to alterations to the panel and excusal (section 16(4)).
The
provisions of
the Act of 1976 Act which are if crucial importance in
determining the core issue on this application are the provisions in relation
to the selection of a particular jury to try a particular case from the panel.
Sub-section (1) of
section 15 provides that the selection of persons empanelled
as jurors to serve on a particular jury shall be made by balloting in open
court. Sub-section (3) of
section 15, which is clearly designed to ensure that
a person selected for membership of a particular jury to try a particular case
is both competent and impartial, provides as follows:-
"Before
the selection is begun the judge shall warn the jurors present that they must
not serve if they are ineligible or disqualified and as to the penalty under
section 36 for doing so; and he shall invite any person who knows that he is
not qualified to serve or who is in doubt as to whether he is qualified or who
may have an interest in or connection with the case or the parties to
communicate the fact to the judge (either orally or otherwise as the judge may
direct or authorise) if he is selected on the ballot".
That
the warning must be given before selection is begun but that communication to
the judge of an impediment or possible impediment to serving is postponed until
selection is obviously in the interests of administrative convenience.
The
mode of swearing a jury is provided for in
section 17 and sub-section (4) of
section 17 provides that every challenge of a juror shall be made immediately
after his name is called out and before the administration of the oath to him
has begun.
Sections 20 and
21 deal with challenges by the parties. In a
criminal matter each party may challenge without cause shown seven jurors and
no more (section 20(2)) and, additionally, each party may challenge for cause
shown any number of jurors (section 21(2)). Sub-section (3) of
section 21 deals
with the mechanics of a challenge for cause shown and provides as follows:-
"Whenever
a juror is challenged for cause shown, such cause shall be shown immediately
upon the challenge being made and the judge shall then allow or disallow the
challenge as he shall think proper".
In
relation to that provision, it was submitted on behalf of the Applicant that
the word "shown" is synonymous with "proven" and that, in exercising his
discretion under that provision, the judge should be guided by precedent.
Sub-section (4) of
section 21 provides that whenever a juror is challenged for
cause shown and such challenge is allowed by the judge, the juror shall not be
included in the jury.
Section
24 deals with the discontinuance of a juror's service and provides that in any
trial the judge may at any stage direct that any person summoned or sworn as a
juror shall not serve, or shall not continue to serve, as a juror if the judge
considers that for any stated reason it is desirable in the interests of
justice that he should give that direction.
Part
IV of
the Act of 1976 deals with offences.
Section 35, subsections (1) and (2),
render making a false representation to the county registrar or any person
acting on his behalf or to a judge with the intention of evading jury service
oneself or in order to enable another person evade jury service offences for
which small penalties (fines not exceeding L50) are provided. Sub-section (3)
of
section 35 renders refusing without reasonable excuse to answer, or giving
an answer known to be false in a material particular, or recklessly giving an
answer that is false in a material particular, when questioned by a judge for
the purpose of determining whether the person being questioned is qualified to
serve as a juror, an offence for which a small penalty (a fine not exceeding
L50) is provided. Serving on a jury knowing that one is ineligible or
disqualified are offences under
section 36 which attract small penalties. A
jury summons under
section 12 is required to be accompanied by a notice
informing the person served of the effect of
sections 6,
7,
8,
9 (1),
35 and
36
and that he may make representations to the county registrar with a view to
obtaining withdrawal of the summons, if for any reason he is not qualified for
jury service or wishes or is entitled to be excused.
An
analysis of the provisions of
the Act of 1976 discloses that there are two
stages in the process whereby a jury to try a particular case is formed. The
first is the creation of the panel for the court in question and the second is
the selection from the panel of twelve members to form a jury for a particular
trial at that court. Both stages are accompanied by a very high degree of, if
not total, openness and transparency, qualities which are necessary ingredients
if a jury selection process is to be perceived to be correct and publicly
acceptable.
The
specific question which arises on this application is whether the Respondent
has power to attempt to elicit information in the interstices, as it were,
between the two stages for the purpose of assisting the parties in the exercise
of their challenges or for some other purpose.
It
is clear from
section 16 (4) that the panel drawn up initially by the county
registrar may have been altered by the date on which the persons on the panel
have been summoned to attend Court. However, having regard to the provisions of
the Act of 1976 and, in particular,
section 9,
section 12 (2) and
section 35
(1) and (2), it seems clear that the only bases for deleting a name from the
panel before that date are that the person named is not qualified (that is to
say, does not comply with the criteria in relation to citizenship, entry on the
register of Dail electors, and age, or is for the time being ineligible, or is
disqualified) or is properly excused from service. While it is implicit that,
when a person on the panel makes representations to the county registrar with a
view to having his name deleted from the panel, the county registrar or his
officials may question the person as to his qualification for jury service or
his wish or entitlement to be excused, no power or authority can be implied
from the provisions in
the Act of 1976 to question a person on the panel or
request him to furnish information in relation to any other matter before he
attends in Court in response to the summons. Moreover, no power or authority to
elicit information which it is not intended will enter the public domain from
potential members of a jury for a particular trial can be implied, because such
a procedure is contrary to the whole spirit and manifest intention of the
provisions of
the Act of 1976.
In
relation to the second stage of the process, it is implicit that the trial
judge has power to question a person on the panel, not only as to whether he is
qualified (section 35 (3)) but also to ascertain whether it is in the interests
of justice that he should serve (section 24). That questioning is done in open
Court. While it is permissible under
section 15 (3), if the judge directs, for
a person after he has been selected on the ballot to communicate with or
respond to the judge in writing, presumably in order to protect the privacy and
to respect the sensitivities of and to avoid embarrassment to citizens, it
cannot be implied from the provision that once a person is selected on the
ballot the judge can hand him down a questionnaire and ask him to complete it.
Having regard to the whole thrust of
the Act of 1976, in my view, on its proper
construction,
section 15 (3) only allows of a very limited departure from the
general rule that the business of selecting a jury for a particular trial is to
be conducted viva voce in open Court.
In
summary, there is no express power in
the Act of 1976 which permits a trial
judge with a view to the formation of an impartial jury or for any other
purpose to request that persons on a jury panel respond in writing to a
questionnaire either in the interim period between the issue of the jury
summonses and their attendance in Court or during their attendance in Court. No
such power can be implied for a number of reasons. First, the implication of
such a power is not open because it would be at variance with the manifest
intention of the legislature in enacting
the Act of 1976 that the creation of a
jury panel and the selection from it of a jury to try a particular case should
be subject to public scrutiny. Secondly, it would only be appropriate to imply
such a power if one could conclude that it would be efficacious in fulfilling
the objective of producing an impartial jury. In the absence of any sanction to
ensure any compliance, let alone proper and truthful compliance, with the
request, no such conclusion is open. Thirdly, the scheme of
the Act of 1976 is
to repose trust in a citizen called on to do jury service to self-assess his
qualification and competence, which, in my view, includes his capacity to
render an impartial verdict, and to rely on his integrity. This is reflected in
sections 12,
15(3) and in the small penalties provided for in
sections 35 and
36. The implication of a power which would permit the trial judge or the
parties to interrogate citizens, who apparently qualify for jury service,
either en masse or individually if selected on the ballot is not open because
it would run counter to the clear scheme of
the Act of 1976.
What
is proposed on foot of the order of 14th February, 2000 is that information in
relation to persons on the jury panel gleaned from such responses as the
questionnaires evoke might be used by Counsel for the Applicant or Counsel for
Mr Haughey to mount a challenge. Aside from the fact that, as I have found, as
a matter of law, the Respondent has no power to initiate such an information
gathering procedure, it is clear both on the construction of
the Act of 1976
and on authorities which bind this Court, that a party is not entitled to
question a witness as a precursor to a challenge for cause shown.
Section 17
(4), to which I have already referred, requires that a challenge, whether with
or without cause shown, be made immediately after the name of the person is
called out on the ballot and, in the case of a challenge for cause shown,
section 21(3) requires that such cause shall be shown "immediately upon the
challenge being made". This latter provision, which it is interesting to note
is almost a verbatim reproduction of the corresponding provision in
the Act of
1927 (section 5 8(5)), the words "and such allowance or disallowance shall be
final and conclusive" which appear in
section 58(5) having been omitted in
section 21, does not admit of any exploratory questioning of the person by the
party challenging. The authorities support this interpretation and also the
proposition that a person selected on the ballot cannot be questioned as to
conflict of interest or possible bias.
In
The People (Attorney General) -v- Lehman (No 2) [1947] IR 137, in delivering
the judgment of the Court of Criminal Appeal, Sullivan CJ stated as follows (at
page 141):-
"It
is, in the opinion of this Court, well settled that counsel for an accused is
not entitled to question a juror with a view to ascertaining whether a right of
challenge should be exercised (Archbold's Criminal Law, 29th Ed., p.193; Reg
-v- Stewart..., Reg -v- Dowling...; R. -v- Edmunds...). It is equally well
settled that even expressions of opinion by a juror are not a ground of
challenge unless they are corrupt as proceeding from ill-will, and that jurors
if challenged cannot be questioned about such expressions which must be proved
aliunde (Huband on Juries, pp. 666-9; Archbold, p. 371; R. -v- Edmunds...; Reg
-v- Martin...). This Court is satisfied that the learned Judge was right in
refusing to allow counsel for the accused to question the jurors with the
object that he stated and accordingly the learned Judge's ruling on the matter
affords no valid ground of appeal".
In
that case, the accused had been found guilty in the Central Criminal Court on
the charge of murdering his wife but his conviction had been set aside by the
Court of Criminal Appeal in December 1944 on the ground that certain questions
had been put to the accused on cross-examination which were irrelevant and
tended to prejudice him and a re-trial was ordered. He was retried in January,
1945 and was again convicted. The decision of the trial judge, which the Court
of Appeal upheld in the foregoing passage, was his refusal to permit Counsel
for the accused to question each juror, before he was sworn, as to whether he
had read newspaper reports of the proceedings in the Court of Criminal Appeal
with reference to the questions asked of the accused in cross-examination at
the previous trial.
That
decision was followed by the Court of Criminal Appeal in The People (A.G.) -v-
Singer IR 408. That was a decision of the Court of Criminal Appeal in which the
judgment of the Court was delivered on the 23rd June, 1961. The foreman of the
jury which had found Paul Singer guilty on a number of counts, including
fraudulent conversion of a fund of which Shanahan's Stamp Auctions Limited was
indebted to investors at the date of the liquidation of that company, was an
investor in that company and a claimant against the company in the liquidation
in respect of his investment. The Court of Criminal Appeal held that the jury's
verdict must be set aside, despite opposition from the prosecution. In his
judgment (at page 414) O'Dalaigh J., as he then was, stated as follows:-
"The
applicant has informed this Court that it was not until after the trial that he
became aware that the foreman was an investor and a claimant in the liquidation
of the company. This has not been challenged by counsel for the Attorney
General. However, it has been argued by counsel that the applicant by the
exercise of his right of challenge for cause could have discovered the juror's
incapacity, as it must be considered to be. In the absence of knowledge on the
applicant's part that the juror was an investor and claimant in the
liquidation, it is clear that the applicant could not have discovered the
juror's incapacity. The trial judge could not allow jurors to be questioned
before challenge with a view to enquiring whether they were investors and
claimants in the liquidation: see The People (Attorney General) -v-Lehman (No
2) at p. 141 of the report and the cases there mentioned. Moreover for an
accused to challenge for cause without information and to call the juror as a
witness in support of such a challenge in the hope of obtaining proof would
amount to abuse of the process of the court".
In
support of his contention that the Respondent did have power to make the order
of 14th February, 2000, Counsel for Mr Haughey did not suggest that the
jurisdiction is to be found anywhere other than in
the Act of 1976. Referring
to the decision of the Supreme Court in the de Burca case, he submitted that
the Constitution has mandated the legislature to produce a system for
empanelling and selecting jurors which for any particular trial will result in
a jury which is competent, impartial and representative. Against the background
of the Respondent's conclusions that Mr Haughey is in a unique position as a
result of the media coverage of and the publicity generated by the Tribunals,
and his conclusion that it is appropriate that additional safeguards and
procedures be adopted in selecting a jury to try his case, the crucial factor
in the instant case, it was submitted, is whether in the Act of 1976 the
legislature has delivered a system which will result in an impartial jury for
the trial of Mr Haughey. While pointing out that the word "impartial" is
nowhere to be found in the Act of 1976, nonetheless he submitted that the
system provided for in the Act of 1976 does admit of a trial judge implementing
procedures such as were provided for in the order of 14th February, 2000 with a
view to producing an impartial jury.
Counsel
for Mr Haughey also approached the matter on another front. He submitted that
the Constitution guarantees Mr Haughey a fair trial, which, in this case,
translates to a "trial by a jury unprejudiced by pre-trial publicity" (per
Denham J. in D. -v- Director of Public Prosecutions [1994] 1 ILR.M 435 at p.
442). He pointed to the jurisprudence of the Superior Courts on the duty of a
trial judge in the conduct of a trial which has been preceded by media coverage
and publicity adverse to the accused and, in particular, the statement by
Denham J. at the end of her judgment in the D. case having held that the trial
in issue in that case should not be prohibited, that this did "not limit in any
way the trial judge's role to ensure fair procedures", and the following
passage from the judgment of Hamilton P. as he then was, in Z -v- Director of
Public Prosecutions [1994] 2 ILRM 481 (at page 495):-
"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 specially 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".
Particular
emphasis was laid on the last sentence in the above quotation although it was
commented that the Superior Courts have left at large the nature of the "fair
procedures" and the "unusual care" to be employed in achieving the desired
result of a jury unprejudiced by pre-trial publicity.
In
providing for the questionnaire procedure in the order of 14th February, 2000,
it was submitted by Counsel for Mr Haughey, the Respondent was doing what he
was enjoined by the Supreme Court to do: to ensure fair procedures which would
result in a jury unaffected by pre-trial publicity. As to where the power to
adopt the particular device which the Respondent adopted is to be found in the
Act of 1976, Counsel for Mr Haughey pointed to section 15 (3), but not
exclusively, although he acknowledged that the reference in section 15 (3) to
the "jurors present" raises the question whether the Respondent should have
assembled the jurors in Court prior to the date fixed for the hearing and
distributed the questionnaires to them in Court or whether for practical and
pragmatic reasons the questionnaire could be sent to them with the jury summons.
Most
of what was submitted by Counsel for Mr Haughey cannot be gainsaid: that the
Constitution guarantees Mr Haughey a trial in due course of law; that he has a
constitutional entitlement to a trial by a jury unprejudiced by pre-trial
publicity; and that it is the duty of the Respondent, as the trial judge, to
take the steps necessary to achieve that end. The problem is that the Act of
1976 does not authorise the steps adopted by the Respondent, which are at
variance with the scheme of the Act of 1976 and its manifest intention, as I
believe the analysis of its provisions which I have set out earlier
illustrates. In short, whatever residual concern the Respondent has that there
is some risk that Mr Haughey's entitlement to a fair trial will be prejudiced
by the adverse pre-trial publicity will have to be addressed in a manner
permitted by law. How this is done is entirely a matter for the Respondent.
Without trespassing on his preserve, one can comment that his finding that the
issues which will confront the jury are relatively narrowly and readily
definable suggests that doing so by appropriate warnings during the jury
selection process, in accordance with section 15(3) of the Act of 1976, and in
the course of the trial is not beyond the bounds of possibility.
Accordingly,
the order of 14th February, 2000 having been made without jurisdiction, I would
grant the Applicant an order of Certiorari quashing it and also a declaration
in the terms sought but omitting the words "and the Constitution".
