The High Court 

Director Of Public Prosecutions v Judge Kevin Haugh and Others (Notice Parties)

No 2000/59 JR  

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".