It is impossible to walk around the capital these days without being accosted by people with loud hailers or banners screaming "Jail the corrupt politicians". This is the background to the Haugh judgment in the Haughey case.
In the subtext of tribunal culture was the unwritten understanding that the process would represent its own end; that revelation, discovery, naming, shaming and blaming would be enough. Arising from the beef tribunal, only a couple of minor players suffered serious consequences; the big guys never looked back. People were disgruntled about this, but swallowed their unease because there had been an understanding to begin with that society would forgo retribution in return for intelligence about where the bodies were buried.
It was this understanding that made the tribunals, with their extraordinary powers of investigation, vaguely acceptable to our vaguely democratic society. It was crystal clear that any information gleaned in the investigations could not be employed to obtain criminal convictions.
Any attempt to prosecute alleged wrongdoers would have to travel on its own steam, gleaning evidence by its own resources. Not one word that has emerged in the McCracken, Flood or Moriarty tribunals amounts to proof of criminal wrongdoing.
Perhaps this understanding should have been pinned down more securely, and we should have been required either to plump for the bare-all tribunal format or hand the matter over to the Garda. Now it appears, we wish to have it both ways: to obtain full disclosure using the extraordinary instrument of tribunal justice, and then exercise the criminal courts in the manner of a cherry on top. We want to have our witchburning, and then take the witch home to do community service in our back gardens.
The subtext of Judge Haugh's judgment is: either you content yourself with venting fully your feelings arising out of the revelations at the tribunals - i.e., satisfy yourself with full discovery and heaping ignominy on the accused while waiving the opportunity to have misdeeds subject to criminal sanction - or you keep your mouth shut and accept the most fundamental principle of criminal jurisprudence: the accused is innocent until proven guilty.
There are, of course, other rights to be considered: the right of the public to be informed and to comment and protest freely. In a tribunal context these rights are given, but when you step outside into the conventional criminal arena, such liberties are considerably, and rightly, circumscribed. We must, in a sense, make a choice between full-blown democracy and justice.
Of course, it's a little more complicated. In the event that we opted to forswear the opportunity for judicial retribution, it would be essential to the effectiveness of tribunals that all parties be obliged to co-operate with the process of exposition, under threat of criminal sanction. Hence, charges of non-co-operation with tribunals are in a different category from putative charges arising from revelation. One is central to the usefulness of the tribunal, whereas the threat of the other might be said to inhibit the tribunal by justifying the reluctance of the accused to offer evidence which might contribute to his incrimination.
It seems a departure from the principles of natural justice that anyone could be compelled to provide evidence which might help the prosecution case against himself. The threat of criminal charges in these two instances are therefore at cross-purposes, not only from the viewpoint of the accused but also from that of society's desire for truth.
Moreover, there is a difficulty in keeping the two concepts separate, particularly in the context of trial by jury when the public appetite for vengeance is in a heightened state. It is reasonable to anticipate, for example, that some citizens who feel that accused persons are protected by the tribunal process might - unconsciously or otherwise - abuse their membership of a jury charged with considering issues of non-co-operation to take vengeance on the basis of allegations not before them.
Judge Haugh, as much as he was dealing with comments by the Tanaiste, was dealing with a climate of public opinion, Ms Harney's comments being as inflammatory as they were symptomatic of this.
Contrary to the suggestion of some commentators, there is no contradiction in Judge Haugh's finding the Tanaiste's general comments about Mr Haughey potentially prejudicial while ruling out any such danger in specific comments by others relating to the charge of misleading the tribunal. He implicitly found that the disconnection between the Tanaiste's comments and the precise charge made them more likely to prevent Mr Haughey getting a fair trial, because the implied demand for retribution by such a senior politician might well pressurise a jury to punish Mr Haughey for all his alleged sins in the guise of sanctioning him for allegedly misleading the tribunal.
This case is entirely different from one in which comments relating to a specific charge might or might not be prejudicial - a question of balance and fine judgment in every case - in that the public and political mood has now created such a negative effigy of Mr Haughey that it is likely he would be burned regardless of the facts. Judge Haugh also, remember, drew a comparison between Ms Harney's comments and a leaflet promoting a rally, captioned "Jail the Corrupt Politicians", stating that, because of the status of the speakers at the rally, this too had potential for "real and substantial prejudice".
There is another way of saying all this: due process cannot rest in the same bed as lynch law. We can have our tribunals, we can name, shame and blame, we can mutter into our pints our fantasies about burning Mr Haughey at the stake, or we can leave the whole thing to the Garda and the courts.
We can have justice or night rallies, but we cannot have both.