An indefinite stay has been placed on the trial of the former taoiseach, Mr Charles Haughey, for allegedly obstructing the McCracken tribunal because of comments made by the Tanaiste, Ms Harney.
Judge Kevin Haugh at Dublin Circuit Criminal Court said there was a "real and substantial" risk that Mr Haughey would not receive a fair trial because of Ms Harney's claims that he should be jailed for taking large sums of money from business interests.
Judge Haugh said he was satisfied that a jury could be influenced by the comments, either consciously or subconsciously. He also said that a march against "corrupt politicians" organised by various political groups for July 1st would further prejudice Mr Haughey's right to a fair trial.
However, he rejected Mr Haughey's claim that media comment since last December had also prejudiced his trial. Last December Judge Haugh also rejected Mr Haughey's claim that he would not get a fair trial because of adverse media comment.
This is the second application by Mr Haughey to halt his trial. Judge Haugh said that Mr Haughey's reputation had declined significantly since his December application, and the allegations against him had also increased.
He said there was a real risk that considerable further damage to Mr Haughey's character had occurred from an interview with Ms Harney carried in the Irish Independent on May 27th, as well as the publicity given to the interview in the Dail.
anaiste's opinions constituted an attack on Mr Haughey's character that would presumably not be permissible in the course of the trial. At the lowest, Ms Harney's views constituted attacks whose prejudicial value would "wholly outweigh" any possible probative value and would be inadmissible in court.
Ms Harney's comments were liable to influence jurors to such an extent that they would "dilute or diminish" the presumption of innocence an accused person should enjoy. The risk of a juror being influenced by Ms Harney's comments was enhanced by her "high standing and reputation for integrity", and her special or pre-eminent position to make assessments or to express informed views on the matters in question.
He said he had considered the newspaper article and the letter from the Tanaiste's private secretary to Mr Haughey's solicitors of June 16th. He now readily accepted that the comments attributed to Ms Harney were clearly related to what was termed in the letter "new information which suggested that Mr Haughey had received some £8 million from business persons in Ireland".
Judge Haugh said he was satisfied that she was not speaking of the obstruction charges, but this did not detract from the gravity of Mr Haughey's complaint that she had prejudiced his right to a fair trial.
He accepted submissions by Mr Haughey's counsel, Mr Eoin McGonigal SC, that the Tanaiste's comments impinged upon a matter relevant to his trial, as the £8 million she had mentioned included £1.3 million allegedly given to Mr Haughey by Mr Ben Dunne - the basis of the obstruction charge.
Judge Haugh said that only the effect of her comments on Mr Haughey's right to a fair trial were relevant, and possible contempt proceedings against her were not relevant.
Similarly, a leaflet distributed in Dublin to encourage people to go to a "Jail The Corrupt Politicians" rally had potential for real and substantial prejudice against Mr Haughey, not only because of its content but also because of the position and status of those due to speak at a rally.
He also believed the plan to hold this rally was probably symptomatic of the depth of feeling which existed in a percentage of the population of Dublin against the former taoiseach, and this caused the court further concern.
He rejected claims by Mr Haughey's legal team that comments by John Bowman on RTE's Questions And Answers created "real, potential or irremediable prejudice". The effect of Mr Bowman's comments could readily be remedied by an instruction to the jury telling them to ignore what he had said. Judge Haugh also rejected a claim that Mr Haughey's right to a fair trial was compromised by a sketch entitled Who Wants To Be A Millionaire? on RTE's 5-7 Live programme.
He said he didn't accept that the Irish people or any significant number of them were so influenced by "political correctness" or so devoid of a sense of humour or were so "po-faced" that the sketch had any real potential to corrupt the pool from which jurors would be chosen. He said he considered the sketch to be "a clever and funny composition".
In conclusion, he believed the "sustained, prolonged and repetitive" attacks on Mr Haughey's character and reputation might well influence a jury in its deliberations, and there was a real and substantial risk that he would not receive a fair trial in the current climate of opinion.
Judge Haugh said it was his opinion that the degree of vilification of Mr Haughey and the depth of feeling against him was such that the court would not be at all confident that they could be obviated or cured by warnings by the trial judge, no matter how strong those warnings might be.
He said he would not grant a permanent stay against the trial as he was not satisfied that the current circumstances would be permanent. "There may be a change in circumstances which for the present I do not seek to foresee", he added.
He made an order staying all further proceedings on the indictment facing Mr Haughey "without leave of this court" and said he would make a decision on costs of the application on a later date.