THE judge in the Sinn Fein libel trial at one point threatened to stop the trial and award costs against Sinn Fein, it can now be revealed.
On another occasion, Mr Justice Gillen turned down a request by Declan Gormley’s QC to collapse the trial but said that he was “perilously close” to discharging the jury.
Amid a series of disputes about the conduct of the protracted trial — which was listed to last five days but yesterday ended after entering a fourth week — there were frequent sharp exchanges in court between Sinn Fein’s barrister, Martin McCann, and the judge.
Many of those arguments stemmed from Sinn Fein’s decision not to plead justification — that is, not to argue that the words in the press releases were true — which ruled out putting in front of the jury anything which may suggest that Mr Gormley deserved to be sacked as a NI Water director by former Sinn Fein minister Conor Murphy.
During the trial those exchanges could not be reported because they were heard in the absence of the jury.
Before the trial began, at two preliminary hearings, Mr McCann had been sternly rebuked by the judge, who twice threatened to refer him to a professional body after what he saw as disrespect to the court. On each occasion Mr McCann apologised.
During the trial, there were several times where the judge pulled up Mr Hanna for his line of questioning. However, the most frequent - and the most heated - exchanges were between Mr McCann and the judge.
Just days into the trial, Mr Gormley’s QC, Nicolas Hanna, stepped in to object to questions about Mr Gormley’s contact with UTV journalist Jamie Delargy.
After excluding the jury, Mr Justice Gillen listened to submissions from both lawyers and then said that he was concerned that Sinn Fein’s defence did not cover what Mr McCann was attempting to establish through his questions to Mr Gormley.
The judge said that the defence could be re-written, and that in a couple of weeks it might be possible to start the case again before him, without the jury, and he could “bank what I’ve heard”.
Sending a jury away for two weeks and bringing them back was untenable because they could forget the case, he said, and added: “I don’t want this trial stopped. I want this trial to confront all the issues.”
Mr Justice Gillen said that another option was to discharge the jury and start again with another jury. But it would mean that the costs to that point would be awarded against Sinn Fein.
However, the judge stressed that he had “a completely open mind on this”.
At that point the trial broke for lunch. After the break, Mr McCann said that there would not be an application to amend the defence and he would drop the questions.
However, just about an hour later, the judge intervened to stop another line of questioning by Mr McCann,
Mr Justice Gillen excluded the jury and was visibly cross. He told Mr McCann: “If there’s one more question from you that suggests this man should have lost his job, I’m going to discharge this jury and award full costs against you.”
He added that it was wrong to have “these hints all the time that somehow Gormley lost his job because of misconduct by the board”.
Within a short space of time and with the jury present, Mr Justice Gillen again stepped in and told Mr McCann: “You will not run this case on the basis that this man should have been dismissed.”
The following day, during yet another break in the cross-examination, Mr McCann said that he accepted Mr Justice Gillen’s criticisms of “the rather rambling nature of the defence” but insisted that despite the document’s style “it’s all there”.
Later that day, Mr McCann put it to Mr Gormley that there was another court case to decide “whether there was a shred of evidence” for his claim that he was wrongly dismissed by Mr Murphy.
The judge intervened and said: “Mr McCann, that is not what this case is about.” Mr Justice Gillen told the barrister that he had been reminded “repeatedly” that he had not pleaded justification and therefore could not attempt to justify Mr Gormley’s sacking to the jury.
Mr McCann immediately said: “I’ve stepped over the boundary, my lord, I apologise.”
At that point the jury was excluded and Mr Hanna told the judge that it was “an exceptionally egregious question for my learned friend to ask”. Mr McCann replied that it was “a lapse of concentration”.
The following day, Mr McCann was examining Sinn Fein’s first witness, Conor Murphy about the volume of questions asked by SDLP MLAs Patsy McGlone and John Dallat about Mr Gormley’s sacking.
Mr Hanna interrupted and the jury were excluded. Unknown to jurors, Mr Hanna then made an application for the jury to be discharged, arguing that it was the third time that Mr McCann had asked a question which took the case outside the defence.
Mr McCann said that there was “absolutely no need for the jury to be discharged” and that there had to be a very substantial risk of prejudice to the case for such a decision to be taken.
He said that it was “a highly unusual step for a judge to discharge a jury”.
Mr Justice Gillen said to him: “The difficulty is that the witness is only answering the questions you’re asking him. He’s not a lawyer; you are.”
The judge said that he was going to be “very slow” to discharge a jury and added: “I’m not going to accede to Mr Hanna’s application and discharge the jury but I’m getting perilously close to it.”
He added: “The consequences are that all costs will be against your client and a new jury will have to be in place and the trial start again.”
Earlier, at a hearing the day after the jury was sworn in but before the case began, during terse exchanges with the judge Mr McCann had claimed that Mr Justice Gillen had made him change his defence submission.
But the judge cut him short and said: “I didn’t make you change anything; I can’t tell you what to plead.”
Mr Justice Gillen reminded the lawyer that he had allowed — not forced — him to make late changes to his defence because of problems with the document which had emerged at a pre-trial hearing.
Mr McCann apologised to the judge and said that he had “exaggerated”.
The following day, Mr McCann was not present in the court room when the judge arrived punctually at 10.30am. An unimpressed Mr Justice Gillen heard a submission from Mr Hanna and then asked Mr McCann’s solicitor, from Madden and Finucane Solicitors, to respond on behalf of Sinn Fein.
Mr McCann arrived just a few minutes later and told the judge that he had left his glasses in the car but Mr Justice Gillen said that the court would start at 10.30am regardless.
However, later that day, when Mr McCann asked for the jury to be excluded as Mr Hanna questioned Mr Gormley in the witness box, Mr Justice Gillen said that the Sinn Fein lawyer had “stepped in at absolutely the right minute” because Mr Gormley was responding to his QC’s questions by saying how it had impacted on business relationships, something not pleaded in his legal submission.