THE HIGH COURT
			2000 No. 339/JR
BETWEEN 
THE DIRECTOR OF PUBLIC PROSECUTIONS 
			APPLICANT
AND
HIS HONOUR JUDGE KEVIN HAUGH
			RESPONDENT
AND
CHARLES J. HAUGHEY
			NOTICE PARTY
JUDGMENT of Ms. Justice Carroll delivered the 3rd day of November 2000.
	The Notice Party Mr. Charles J. Haughey was returned for trial on the 9th of July, 1997 to the then present sittings of the Circuit Criminal Court on two counts of obstructing the Tribunal of Inquiry commonly known as the McCracken Tribunal.
	In summary the particulars on count one were that on or about the 7th of March, 1997 he obstructed by asserting in a letter to the Tribunal dated the 7th of March, 1997 that he had not received any payment in cash or in kind of the nature referred to in the terms of reference of the Tribunal, which assertion he knew to be false.  The particulars on count two were that he obstructed by asserting in a written statement dated the 7th of July, 1997 that he never received any of three specified bank drafts which assertion he knew to be false.
	The Notice Party brought a Motion before Judge Haugh who was the Judge assigned to hear the case, to adjourn his trial until some reasonable period after the publication of the report of the Tribunal commonly referred to as the Moriarty Tribunal on the grounds of adverse pre trial publicity.
	In his Judgment delivered the 17th of December, 1999 Judge Haugh refused the application saying 

“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 the 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 charges.  I would also 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.”  

	Judge Haugh decided on the 14th of February, 2000 to issue a questionnaire to potential jurors and the trial date was set for the 21st of March, 2000.  
	The D.P.P. sought to judicially review the decision about the questionnaire.  In that he was successful before a divisional Court consisting of Carney J. Laffoy J. and O’Donovan J. who delivered three separate Judgments on the 12th of May, 2000.
The Notice Party then brought another Motion returnable for the 31st of May, 2000 seeking to strike out the indictment or for a permanent stay or to postpone the trial until such time, if any, as the unfairness created by adverse pre trial publicity abated.
In his Judgment dated the 26th of June, 2000 Judge Haugh said at page 15

 “I believe that by virtue of the sustained prolonged and repetitive nature of the attacks made against the character and reputation of the accused  in relation to matters which I believe might well influence a jury in its deliberations, should these charges be permitted to proceed to trial in this climate of opinion, I believe there is a real and substantial risk that he would not receive a fair trial.  I believe the degree of vilification is such and the depth of feeling against the accused is such that I would not be at all confident that it could be obviated or cured by instructions directions or warnings by a trial Judge no matter how strong they might be.
	By reason of the matters which I have stated above I am satisfied that there at present exists a real and substantial risk that the accused would not receive a fair trial on the charges currently before the Court.  However I do not propose to grant a permanent stay against further proceedings on this indictment as I am not satisfied that the circumstances as I find them to be and which compel me to put a stay against further proceedings, will be permanent or will remain as they now are for the foreseeable future.   There may be a change in circumstances which for the present I do not seek to foresee.
	Accordingly subject to any further submissions Counsel may wish to make I propose to make an Order staying all further proceedings on this indictment without leave of the Court.”

The Order of the 26th of June, 2000 orders such a stay.   The D.P.P. sought to judicially review the Order of Judge Haugh and leave was granted on the 30th of June, 2000.
The Notice Party then brought a motion returnable for the 9th of October, 2000 to strike out the Judicial Review proceedings as an abuse of the process of the Court, that the Applicant lacked locus standi and also for a hearing before a divisional High Court.  When the matter came before the President he refused the application for a divisional Court and adjourned the rest of the motion to the same date as the hearing of the Judicial Review proceedings.
Since the issues raised in the motion were also raised in the Judicial Review proceedings I decided I would not treat the motion as a trial of a preliminary issue but would deal with the issues as they arose in the Judicial Review proceedings.
	The first submission by the D.P.P was that the Order made by Judge Haugh on the 26th of June, 2000 was not an Interlocutory Order but a final one and must be construed as such.  The Order brought the criminal proceedings to an end.  As the Circuit Court does not have jurisdiction to make an Order of Prohibition therefore the Order is bad on its face.
The D.P.P. further submitted that the Order effectively is permanent because it reverses the burden of proof so that the D.P.P. must prove a negative i.e. that a real and substantial risk of an unfair trial does not exist.  
It was submitted on behalf of the Notice Party that the Order made was not an Order of Prohibition or the equivalent but rather an adjournment and that Judge Haugh said nothing about the burden of proof and that the burden still lies on the Notice Party to prove a real and substantial risk still continues to exist.
	Having considered the arguments I do not accept that the Order made was a final one in the nature of an Order of Prohibition or permanent stay.  Judge Haugh specifically says he did not propose to grant a permanent stay as he was not satisfied the circumstances as he found them would be permanent.  There is no way his Order can be construed as final when he specifically says it is not and he made provision for further application to be made to the Court.  The Notice Party concedes the onus of proof is still on him therefore the D.P.P. can apply to the Court to set a trial date whenever he wants.  The arguments directed to the jurisdiction of the Circuit Court to make an Order of Prohibition do not arise.  Neither do the arguments about estoppel on this point.
  It was submitted by the D.P.P. that the Order was a refusal to exercise jurisdiction and was made in excess of/without jurisdiction.  Section 25(1) of the Courts Supplemental Provisions Act 1961 provides for trial of every person lawfully brought before the Circuit Court.  The Order precludes that happening.  Section 37 of the Courts of Justice Act 1924 provides for the exclusion from the jurisdiction of the Circuit Court of habeas corpus, certiorari, quo warranto, prohibition, information and mandamus.  Section 25 of the Courts Supplemental Provisions Act 1961 confers on the Circuit Court every jurisdiction as respects indictable offences (with some exceptions) for the time being vested in the Central Criminal Court.  That is the High Court exercising criminal jurisdiction (Section 11 Courts Supplemental Provisions Act 1961).
	It was argued that Judge Haugh was not entitled to entertain an application for a permanent stay.  In a similar application in a different matter (D.P.P.-v-Harte) in March 2000 Judge Dunne had refused to entertain it.
It was also argued that he was not entitled to grant a stay or an injunction restraining the D.P.P. from proceeding as this was not an exercise of criminal jurisdiction.  That is beside the point.  What the Court is concerned with is the Order actually made and I have already held that it is an Order for an adjournment albeit sine die.
 The Central Criminal Court has power to grant adjournments in criminal trials and in doing so is exercising criminal jurisdiction.  Therefore the Circuit Court has a similar power under Section 25 of the Courts Supplemental Provisions Act 1961.
It was further submitted that Judge Haugh was not the trial Judge as the trial Judge is not known until the jury is empanelled and the trial commences.  This submission has no substance.  Judge Haugh was assigned to hear the case.  As such he is the appropriate person to hear pre trial applications.
As a second issue, even if the Order did not amount to an Order of Prohibition or equivalent, it was submitted that the Order is susceptible to Judicial Review as this is an exceptional case which falls in to the same category as the Judicial Review proceedings reviewing the Order of Judge Haugh relating to the proposed questionnaire.  
The principles to be applied were identified in the Wednesbury case (Associated Provinical Picture Houses Limited-v-Wednesbury Corporation 1948 1KB 223) approved of by the Supreme Court in the State (Keegan)-v- Stardust Victims Compensation Tribunal (1986 IR 642) and O’Keeffee-v-An Bord Pleanala (1993 1IR 39) The issues to be decided are whether the deciding authority took into account matters it ought not to have taken in to account or did not take in to account matters it ought to have taken in to account.  If it has done neither a decision may nevertheless be impugned if the deciding authority has come to a conclusion so unreasonable that no reasonable authority could come to it.
Henchy J. in Keegan’s case elaborated on the unreasonableness test as being a decision that plainly and unambiguously flies in the face of fundamental reason and common sense.  If the deciding authority has passed the Wednesbury test, then if the Court disagrees with the decision it cannot substitute its opinion for that of the deciding authority.
The Court cannot interfere with the decision merely on the grounds that (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions or (b) it is satisfied that the case against the decision was much stronger than the case for it (see Finlay C. J. in O’Keeffe-v-An Bord Pleanala at page 71).
The D.P.P. submits that Judge Haugh did not take in to account the constitutional imperative for a trial by jury.  He could not come to the conclusion that there was a real and serious risk that the Notice Party would not get a fair trial because an impartial jury could not be empanelled unless he tried to empanel a jury.  There was no evidence before him to that effect and he could not reach that conclusion unless he attempted to empanel a jury.  Section 15 of the Juries Act allows for a filtering process where the jurors can be asked whether they can approach the matter with an open mind.  This was mentioned in the Judgment of Carney J. as a member of the divisional Court on the 12th of May, 2000.  Carney J. said he could see no reason why the trial Judge should not invite any potential jurors who felt they could not give the Notice Party a fair trial based exclusively on the evidence adduced and the trial Judge’s legal directions, to indicate that.  The D.P.P. submitted that the trial Judge failed to have regard to the ruling of the divisional Court, to the right of the people and the D.P.P. to an expeditious trial and failed to have regard to the jurisprudence in relation to the adverse pre trial publicity and to the fact that there was no case where a trial was stopped on that ground.  He also cited Canadian and other cases which say that a stay should only be granted on the grounds of adverse pre trial publicity if an attempt was first made to swear in an impartial jury.  However in those cases the stay referred to was a permanent stay and in the context of having an examination of jurors, which is not possible here.
As the law stands here at the moment it is set out in D-v-D.P.P., 1994 1ILRM 435 Z-v-D.P.P. 1994 2ILRM 481 and in Re:  Zoe Developments 3rd of March, 1999 per Geoghegan J. 
In the D case it was held that circumstances can exist which would entitle an accused person to demand the abandonment of his trial if there is a real and serious risk that the trial would be unfair if it were allowed to proceed.  In the Z case, Finlay C.J. elaborated further saying the onus of establishing a real risk of an unfair trial 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.  In that case Finlay C.J. was satisfied it would not be possible to empanel a jury which would not either as to the great majority of them or more likely as to all of them be aware of the identity of the case.  But he was satisfied that a jury fully and amply instructed would be able to bring to the trial of the case an impartial mind.  
In Zoe Developments Limited Geoghegan J. did not think there was a serious risk of an unfair trial but he nevertheless held an adjournment of six months was necessary to allow the fade factor to come in to play.
The possibility of asking prospective jurors at the time of empanelling an jury to say whether in view of adverse publicity they would not be able to bring an open mind to the trial and if so to inform the trial Judge if chosen, was never canvassed before Judge Haugh. It may be that there would not be an unavoidable unfairness of trial unless the procedure of allowing jurors to disqualify themselves because of the effect of adverse publicity, was followed.  However according to the Judgments of the Supreme Court in the D and Z cases it is the trial Judge who must decide the question of whether there is an unavoidable unfairness of trial and there is no requirement of law that an attempt to empanel an unbiased jury must first be made.  
The D.P.P. submits the Judgment of the trial Judges material (in the Wednesbury sense of flying in the face of fundamental reason and common sense)
(1)     By giving too much credence to the potential prejudicial effect of the  remarks made by An Tanaiste and the alleged 40,000 flyers for the “Jail the Corrupt Politicians” Rally (which had not at that time taken place and was attended apparently by approximately 300 people)
(2)     By the distinction he drew between the remark of the Question and Answers Chairman that the accused had admitted obstructing the McCracken Tribunal which he said could be obviated or avoided by direction or instruction of a trial Judge and the more general comment of the Tanaiste which did not refer to these criminal proceedings and which was held to be ground for staying the trial
(3)     By holding that damage to the Notice Party’s reputation in areas irrelevant to the obstruction charge were valid grounds for a stay while in his Judgment of the 17th of December, 1999 he held they were not valid grounds for a stay
(4)     By applying a test of admissibility to the Tanaiste’s remarks.
All of these grounds really relate to the evaluation of evidence and the inferences and conclusions to be drawn from the evidence.  It is not for this Court to draw different inferences or conclusions.  Judge Haugh was the person who had the responsibility of making the decision and he made it.  This Court is only concerned with whether the decision was made without or in excess of jurisdiction.  The D.P.P. has not discharged that onus of proof.
Since the D.P.P. is not successful on the substantive matter a question of estoppel does not arise.
Since the Order made by Judge Haugh was an adjournment until the Court made a further Order, there is nothing to stop the D.P.P. applying now to Judge Haugh to set a date for the trial. The onus of proof is still on the Notice Party to prove an unavoidable unfairness of trial.  Time has moved on.  The fade factor is already in operation.  As far as the rally is concerned there has been a fizzle factor since it was by any standard a non event.  Judge Haugh could be invited (as he was not previously invited) when empanelling the jury to consider asking them if they think they could not approach the trial with an open mind to make that known if chosen.  Speaking from the experience of the Nevin trial when two juries were empanelled, after asking the jurors to say if they felt the pre trial publicity affected their ability to come with an open mind, there were many jurors who acknowledged they did not have open minds and they were excused.
Ultimately it is Judge Haugh as the assigned Judge who has the responsibility of making decisions within jurisdiction in relation to the trial and it is for him alone to make up his mind on his evaluation of the evidence.