The Irish Times Elaine Edwards Sat, Aug 29, 2015, 13:40
Judge puts back trial of ex-Anglo Irish chairman for seven months until May 2016
However Mr Justice Michael Moriarty on Saturday ruled the trial of the retired banker should be put back by just over seven months to May 2016, because of adverse media publicity about Mr FitzPatrick.
Mr FitzPatrick, who is facing a number of charges including making a misleading, false or deceptive statement to auditors and of furnishing false information from 2002 to 2007, had claimed he could not get a fair trial due to the large amount of adverse media coverage about him.
Mr FitzPatrick, who has pleaded not guilty to 27 charges under the 1990 Companies Act – made the application due to concerns over the large volumes of adverse media publicity he received following a recent, separate trial of three Anglo officials.
His trial has been scheduled to begin on October 5th.
He asked the High Court to make an order permanently prohibiting his trial. In the alternative he seeks an order quashing and decision of Circuit Court Judge Martin Nolan to refuse to adjourn the trial.
The DPP has opposed the action, rejected claims Mr FitzPatrick could not get a fair trial and argued that the trial should proceed in October.
In proceedings against the DPP Mr FitzPatrick (66) sought orders preventing his prosecution from continuing. He also seeks to quash Judge Nolan’s ruling in early August that the trial should proceed in October, after he rejected an application made on behalf of the former banker from Greystones, Co Wicklow for an adjournment.
He further sought a declaration from the court that allowing his trial to proceed is contrary to the concept of a fair trial under Article 38 of the Constitution.
Mr Justice Moriarty said he had considered all the matters urged on both sides in yesterday’s hearing, together with the written submissions, authorities and “as much of the daunting volume of documentation”, primarily copies of media reports as was possible in the limited time available.
He said prosecuting council Paul O’Higgins SC was disposed, and he thought properly so, to accept that the court was entitled to appraise “the entire spectrum of the material events in the context of the overriding entitlement of Mr Fitzpatrick to a fair trial pursuant to Article 38.1 of the Constitution, which it was agreed must prevail over other possible competing rights.
The primary and most dramatic relief sought by the applicant was that of an injunction to halt the trial permanently, or to impose a permanent stay on its continuance.
“It is fair to say that, in the course of his able argument yesterday, perhaps to some degree in response to questions by myself, the confidence of Mr Condon SC (for Mr FitzPatrick) waned somewhat in this regard, and he was disposed to switch his focus somewhat in favour of seeking the longest possible adjournment of the trial of his client, from its listing on “October 5th next, to enable the ‘fade factor’ become operative.”
“This, it seems to me, was a prudent change of course, as from both the facts of the case, and the substantial volume of relevant authorities cited, I am absolutely satisfied that it would only be in the most extreme circumstances that so drastic a form of relief could be acceded to, in effect aborting a highly significant prosecution brought by the respondent on behalf of the Irish people, and that all that has emerged by way of fact or law in the present instance falls far short of warranting such relief,” the judge said.
“While the instance of Adolph Eichmann may have been an extreme instance, a proposition that attaining a degree of high notoriety in the public eye constituted a bar to being duly tried by judge and jury seems self-evidently untenable.”
The judge said one might also wonder how the three defendants recently tried, convicted and sentenced, or indeed the public at large, would view such disparate treatment. This portion of the relief sought, in all its forms in which advanced, must clearly be dismissed.
A lengthy adjournment was not a remedy to be acceded to glibly, or on anything short of exceptionally compelling circumstances.
He said he had endeavoured to read at least a significant cross-section of the vast number of press cuttings and documentation of radio and television coverage running to some thousand pages at least, even without reference to websites and other forms of communication.
He had found the comparatively recent judgment in the Breifne O’Brien case of much relevance and assistance.
Like the judge in that case, he fully approved that “…in any liberal democracy, the press and other media must be free to investigate and expose wrongdoing”, but also like him, he was persuaded that ‘the huge volume of adverse and highly critical newspaper articles fall into a different category from those already considered. Many of the media articles pour gloatingly over the details of the applicant’s ruins exhibiting a high level of Schadenfreude in the applicant’s current plight and circumstances.’
The judge also referred to the recent sentencing hearing of the three former Anglo officials sentencing hearing after an overnight remand in custody.
“As a casual observer, with no premonition I would be dealing with this issue within about a month, this I acknowledge engendered in myself, particularly in regard to the lady defendant, immediate feelings as a member of the public who had read the press coverage of the trial in general terms, feelings that were not favourable to Mr. Fitzpatrick,” he said.
“I stress that, in this unusual observation, I am in no sense seeking to be in any way critical of the learned trial judge in that instance, or indeed of Judge Nolan, who presided in a difficult case with much courtesy and competence).
“Yet these factors, when coupled with the unintended sequence in close proximity of Mr Fitzpatrick’s abortive first trial on the present matter, the ensuing trial of the three who were convicted, one at least of whom was accorded something in media reportage of the status of a foot soldier, and the very prompt re-listing of the applicant’s trial at the heart of the application, represent an unhappy succession of events, and one not in accord with the effective “fade factor” sequence accorded to other defendants within what may be termed the Anglo Irish Bank ambit.”
“All these factors seem to me beyond what arose in the Nash case, and even those of the Rattigan and Lyons, and render me of the belief that, as in the O’Brien case, the requirements of justice necessitate a deferral.”
Of course it does not mean that all antipathy to the applicant will have subsided when the trial re-starts, but I believe some particular elements are likely to have subsided by then. Having carefully considered competing factors, I rule that the trial should be adjourned to May 25th, 2016 the first day of next year’s Trinity term, and a deferral of little over seven and a half months.