A former director of public prosecutions, James Hamilton, presents a depressing choice in his warning that it would be "foolish" for the Government to proceed with a banking inquiry before criminal trials take place. We can have an inquiry. Or we can have the law take its course and then see about an inquiry. But we cannot have the two together, it seems.
Material used in an inquiry could be used by defendants to claim they cannot have a fair trial, he argues. The content of the Anglo Irish Bank tapes published in the Irish Independent could also prejudice proceedings. Defendants might seek to follow the lead of Charles Haughey in 2000, when he successfully pleaded that because public opinion had been poisoned against him, he could not get a fair trial on charges of obstructing the McCracken tribunal.
Clearly thinking along similar lines, James Hamilton’s successor, Claire Loftus, has requested Independent News & Media to forbear from further revelations. She has the task of steering prosecutions through to trial. Some charges have already been laid and the Garda Bureau of Fraud Investigation is labouring to finalise its evidence for her.
“We have to work within the system we have at the moment,” the former DPP told RTÉ, with a palpable air of resignation.
James Hamilton was a thorough and conscientious prosecutor. In 2000 he sought a review of the Circuit Court decision to stop the case against Haughey (DPP v His Honour Judge Kevin Haugh and Charles J Haughey). However the High Court in effect refused, holding that it was for the trial judge to decide the issue. The office of the DPP, understandably, does not like to be backhanded by the superior courts.
But the “system” to which Hamilton refers does not any longer reflect reality. The nexus between public opinion, the media and the administration of justice is no longer where it was 13 years ago when it was held that the former taoiseach could not be tried, putting him in effect beyond the law.
Experienced prosecutors are of course right to raise these issues. When and if charges are finally brought to full hearing, claims of prejudice and bias will be among the earliest hares to be coursed by defence lawyers. It will be pleaded that such has been the intensity of public anger, so vile have been the media in their coverage, and such has been the popular rush to judgment that it will be impossible to empanel jurors with open minds.
Hyper-connected world
But in the hyper-connected world of today it is unrealistic to expect that a panel of intelligent adults, possessed of reasonable deductive capacities, can be found who will not to some degree have "internalised" (Brian Cowen's term) the shocking performance of the Irish financial system and of Anglo in particular. Nobody living in this State has been unaffected. So can prosecutions proceed only where jury members can be shown to have been living in some sort of cocoon? Taken to its logical conclusion it would suggest the criminal courts as a whole should be shut down.
When Judge Kevin Haugh decided that Haughey could not be tried and when the High Court supported that finding, social media, as we know them, had not been invented. There were no smartphones capable of sending or receiving emails. The judges themselves had no email. Personal blogging was confined to a minority of tech-savvy geeks in Silicon Valley.
It was still just about possible for judges and lawyers to imagine that the courts could operate within some sort of cordon sanitaire, in which jurors and witnesses would emerge from isolation to discharge their civic duty in the courtroom.
It certainly is not like that now. The proximate reason why Haugh decided that the former taoiseach could not get a fair trial was that tánaiste Mary Harney had said, not wholly unreasonably, in a radio interview that he should be in prison. It was likely even then that the great majority of people – potential jurors – would have put that down to political rhetoric, albeit emanating from beliefs sincerely held. But to lawyers and judges of Haugh’s vintage it would have seemed an appalling breach of the courts’ prerogatives and the rights of an accused person.
Notwithstanding, it is worth revisiting what Haugh and the High Court had to say at the time. Haugh acknowledged that it should be possible, to some considerable degree, successfully to instruct jurors to set aside any bias or preconception. And he wondered – rather imaginatively – if some screening of jurors by way of questionnaire might address the problem. The High Court decision, in turn, left open the possibility that a safe trial might be run with the passage of time.
It would be good to think that the judges might have moved on from 2000; that they have embraced the reality that the world does not come to a silent standstill while they do their work in the courtroom. Twenty-first-century society – the individual, the elected representative or the media – cannot be enjoined to monastic silence in the face of social and economic catastrophe in order to have the justice system do its job.
That system has to adapt, to learn to discharge its responsibilities in a world of instant and total connectivity. The legal practitioners have to find ways of making their institutions work, even while the mob is howling outside and the newspapers and bloggers are engaged in what was once viewed as foul contempt.
Courts in other common law countries have succeeded in dealing with defendants like Ernest Saunders, Ivan Boesky, Leona Helmsley, Conrad Black and many more, in veritable maelstroms of public and media comment. It cannot be right that judges or lawyers claim they are prevented from doing their job because people want answers to questions about the impoverishing of their country and the jeopardising of their children's future.
Conor Brady is a former editor of The Irish Times