Comments by the Tanaiste, Ms Mary Harney, and a leaflet headed "jail the corrupt politicians" have been cited by lawyers for the former Taoiseach, Mr Charles Haughey, as reasons why his trial for allegedly obstructing the McCracken tribunal should not proceed.
Mr Eoin McGonigal SC told Judge Kevin Haugh at Dublin Circuit Criminal Court that his solicitors had learned it was intended to circulate 40,000 copies of the leaflet in Dublin and country areas. Judge Haugh has placed a temporary ban on publication of details from the leaflet which advertises a proposed "protest rally".
Mr McGonigal recalled Judge Haugh's finding when he ruled against Mr Haughey on December 17th in his first application to halt the trial that the adverse publicity generated by the Moriarty tribunal placed the former Taoiseach in the position of a person "hated, ridiculed and held in contempt". He submitted that the adverse pre-trial publicity had continued unabated since and was now exacerbated to such an extent that Mr Haughey could not get a fair trial.
Mr Haughey was not in court for the hearing. It is expected to continue for several days.
Mr McGonigal (with Mr Eamonn Leahy SC) was moving a motion which seeks an order "striking out the Bill of Indictment", or, as alternatives, an order "directing a permanent stay on the proceedings" or an order "postponing the trial until such time, if ever, as the unfairness created by adverse pre-trial publicity abates".
The first day's hearing, as well as hearing submissions by Mr McGonigal, included the playing of audio and video excerpts from various recent RTE radio and television programmes dealing with the recent comments by the Tanaiste concerning revelations at the Moriarty tribunal about £8.4 million given to Mr Haughey.
The programmes covered included Five-Seven Live, The Week in Politics, Questions and Answers and a television news interview with Ms Harney in which she clarified earlier comments she made in an Irish Independent interview calling for the jailing of Mr Haughey.
There was no indication by Mr Haughey's legal team that Ms Harney might be called to give evidence, though that possibility had been hinted at during a preliminary hearing last month.
Mr Maurice Gaffney SC (with Mr Tom O'Connell), for the Director of Public Prosecutions, protested at the opening of the hearing that Mr Haughey's legal team had not indicated in advance they would be opening such a vast amount of exhibits and extracts from legal authorities.
Mr McGonigal said the comments by Ms Harney created significant publicity due to her position as Tanaiste. "To suggest that we could try and put that out of our minds in this trial is impossible and anyone who has heard or read it is bound to be influenced," he said.
Mr McGonigal suggested that Ms Harney's explanation was "not credible" when she told the Irish Independent the former Taoiseach should be jailed she was not referring to any specific trial but to the Moriarty tribunal revelation about the £8 million. "No evidence has been led to the Moriarty tribunal which would enable Mr Haughey to be charged with any offence so that she is saying he should be jailed for something with which he has not been charged," he said.
Mr McGonigal said the matter of the "jail the corrupt politicians" leaflet had only arisen in the last two days. A copy had been handed out on the street to a member of his solicitors' staff and had been investigated by the company.
He said the leaflet misrepresented the evidence led at the Moriarty tribunal and called for the jailing of the former Taoiseach without any trial.
It represented a gross interference with the administration of justice in this State and was a direction to the judge and to a potential jury that his client should be jailed without any regard to a fair trial.
Mr McGonigal said the trial was for the alleged obstruction of the McCracken tribunal by Mr Haughey but they would be putting their heads in the sand to try to run a trial on this narrow identifiable issue and put everything else out of their minds.
Mr McGonigal noted that judges and the courts had in the past praised "the robustness of our juries and the incorruptibility of the judiciary" but submitted that that had now changed.
The hearing continues today.