The High Court has refused to permanently prohibit the criminal trial of Breifne O’Brien, but ordered that the trial be stayed for 12 months because of the risk that extensive pre-trial publicity could make an immediate hearing unfair.
In a judgment delivered on 16 May 2013, President of the High Court Kearns considered O’Brien’s application for judicial review. O’Brien was charged with 45 counts of theft and deception relating to five complainants. The judgment describes the prosecution allegations as involving a pyramid or Ponzi-type scheme. Those allegations had not been determined at trial.
O’Brien argued that adverse publicity meant he could not receive a fair trial. He sought a permanent prohibition, or alternatively a lengthy stay to allow the publicity to fade. The court considered comments made during earlier civil proceedings, a 2010 book chapter, newspaper coverage from 2008 to 2012 and television broadcasts in 2012 and 2013.
Kearns said the publicity included both factual reporting and emotional coverage. He concluded that the volume and tone of newspaper articles, together with the television broadcasts, created an appreciable risk of an unavoidably unfair trial if the case proceeded immediately, even with judicial warnings and directions. He also said he had reservations about a trial in the immediate future.
The court did not find that a fair trial could never take place. It considered that after a reasonable interval, a trial managed with appropriate warnings and directions could proceed. The judgment recorded that a trial was unlikely before the second quarter of 2014, but noted that an earlier date might become available if another lengthy case was adjourned or did not begin.
The order stays the actual trial for 12 months from the date of judgment. It does not prevent arrangements for a trial in 12 months’ time, and the court refused the broader relief of permanently prohibiting the prosecution. Kearns said O’Brien could make a further application if significant adverse publicity recurred before a trial scheduled for the second quarter of 2014, apart from reports of the judgment and decision.