Mick Clifford: Why were Waterford reporters refused access to court case of former Fianna Fáil MEP candidate?
The case concerns a relatively minor prosecution being taken against Kieran Hartley (pictured) who is from a prominent Fianna Fáil family and was, at one point, the substitute MEP for Munster for Brian Crowley. File photo: Denis Minihane
There was a time when a judge could clear a court on a whim. This was back in the days of extreme deference to authority.
There are highly credible anecdotes of occasions when a district court judge cleared a court at the end of the day’s proceedings and heard what he – there were few, if any, female judges in those days – deigned to be a sensitive case.
This invariably would have concerned some pillar of the local community, or perhaps a relative thereof. No press would be allowed. Justice would not be seen to be done. The great unwashed would just have to take it on trust that the law was properly adjudicated on.
Today, such a scenario would rightly not be tolerated which is why a case last month that involved the exclusion of the press and public in Dungarvan, Co Waterford, badly needs a proper resolution.
The case concerns a relatively minor prosecution being taken against Kieran Hartley. Mr Hartley is from a prominent Fianna Fáil family and was, at one point, the substitute MEP for Munster for Brian Crowley.
He created a stir of controversy in 2017 when he suggested that Mr Crowley, who had ongoing medical issues which restricted his attendance in parliament, should step aside. Mr Hartley is no longer active in Fianna Fáil.
He is charged with a Section 6 public order offence which stemmed from an incident in which he and a neighbour had a disagreement over a hedge. The neighbour is reported to be a close relative of a garda.
Mr Hartley claimed that a document central to the case, signed by him and his wife, included elements of forgery and misrepresentation.
At a hearing before judge Brian O’Shea on September 22, Mr Hartley’s allegation was raised and his solicitor requested that the documents in question should not form any part of the prosecution.
The judge ordered that a garda and his district officer, Superintendent Paul O’Driscoll, attend at Dungarvan court on 13 October where he would hear evidence and decide whether the documents were admissible. On the day in question, the hearing took place at 10am, earlier than the normal start time for the day’s hearing.
There is nothing unusual about such scheduling if an item is expected to take up some time and disrupt the flow of cases through the morning. However, two reporters were blocked from entering the court.
They were told that a voir dire was being conducted and the judge had ordered the court to be cleared. A voir dire is effectively a trial within a trial, usually to determine whether something is admissible as evidence in the trial proper. Nearly always it takes place in cases that include a jury.
The jury leaves while legal counsel argues over the admissibility of evidence. The public is not excluded but the legal argument or any testimony cannot be reported until the full trial is completed. There is no reason for a court to be cleared in such a scenario and these days it never is.
In Dungarvan that morning, what was being conducted was in fact a pre-trial application. There was no jury involved as juries do not feature in any capacity in district courts.
Normally, the only reason for excluding public and press is for the purpose of an in-camera hearing involving family law, a highly sensitive subject for all parties. There was no family law element to this case.
Two reporters in Dungarvan were excluded for three hours while the Hartley-Garda hearing was conducted. No members of the public were in attendance either. The gardaí are adamant that the judge ordered the court to be cleared.
A statement from the garda press office set out the position from their point of view.
“An Garda Siochana is satisfied that the District Court judge had made an order that a voir dire in this case was to be heard and that only persons involved in the court case should be in attendance.
“The court garda cleared the court as requested by the judge.
"No further access was allowed by members of the public after that point and it is understood that members of the media who also arrived after that point were inadvertently prevented from accessing the courtroom. Once the voir dire was finalised the courtroom was opened up to all.”
According to a spokesperson for the court service, the digital recordings of both the October 13 hearing and the 22 September hearing have been examined and at no point does Judge O’Shea order any such exclusion.
An Garda Siochana’s official position is to put words in the mouth of the judge which, according to the digital evidence, he never uttered.
One might have thought that any members of An Garda Siochana with any involvement in the hearing or the case would have been extremely careful to ensure nothing out of the ordinary occurred.
After all, this was a case which involved a close relative of a garda and at issue in the hearing in question was the veracity of a document prepared by gardaí.
Yet what has emerged is a controversy about justice not being seen to be done and a worrying dispute between the gardaí and a judge over whose version of events is factually accurate. At the conclusion of the pre-trial application on 13 October, Judge O’Shea ruled that there was no issue with the documents and they were admissible.
The full hearing of the case is scheduled for 30 November.
Right now though, the substance of the case is completely overshadowed by a far bigger issue, one that surely needs to be addressed by senior management in the force without any further delay.
