S20 DPP -v- Independent Newspapers [2009] IESC 20 (05 March 2009)

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Supreme Court of Ireland Decisions

You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> DPP -v- Independent Newspapers [2009] IESC 20 (05 March 2009)
URL: http://www.bailii.org/ie/cases/IESC/2009/S20.html
Cite as: [2009] 2 ILRM 199, [2009] IESC 20, [2009] 3 IR 598

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Judgment Title: DPP -v- Independent Newspapers

Neutral Citation: [2009] IESC 20

Supreme Court Record Number: 221/05

High Court Record Number: 2005 6 MCA

Date of Delivery: 05/03/2009

Court: Supreme Court

Composition of Court: Murray C.J., Hardiman J., Geoghegan J., Fennelly J., Finnegan J.

Judgment by: Geoghegan J.

Status of Judgment: Approved

Judgments by
Link to Judgment
Geoghegan J.
Appeal allowed - set aside High Court Order
Murray C.J., Fennelly J., Finnegan J.
Hardiman J.
Fennelly J.

Outcome: Allow And Set Aside



Murray C.J.
Hardiman J.
Geoghegan J.
Fennelly J.
Finnegan J.






JUDGMENT of Mr. Justice Geoghegan delivered the 5th day of March 2009

Pursuant to majority judgments delivered by Fennelly J. and myself on the 5th day of March, 2008, this court, by a majority of four judges to one, held that a judge of the High Court hearing a motion for attachment and committal in respect of an alleged criminal contempt of court did not constitute “The Central Criminal Court”. The relevance of this preliminary decision was as follows. The learned High Court judge (Dunne J.) gave a “direction” in the motion and refused it accordingly. The motion had been brought by the above-named appellant against the above-named respondents. The appellant appealed the decision to this court. The respondents raised a preliminary jurisdiction objection to the appeal invoking an alleged legal principle that there could never be an appeal from an acquittal and that in this respect the trial judge’s refusal of attachment and committal was no different from an acquittal in an ordinary criminal trial. A number of arguments were put forward in support of this ground of objection but one of them was that by virtue of section
11(1) of the Courts (Supplemental Provisions) Act, 1961, Dunne J., sitting in the High Court, must be regarded as being in fact the Central Criminal Court and if that was so, section 11(1) of the Criminal Procedure Act, 1993 precluded an appeal. That submission has been rejected in the preliminary judgment of this court already referred to.

In support of the view that no appeal lies from the order of the High Court in this case, a number of other arguments were also made. In the course of this judgment, I will comment on them. As I will be concluding that an appeal does lie to this court, I will also be commenting on the merits of the appeal and some procedural matters in relation thereto.

Of these remaining grounds of objection, I think it would be fair to say that the principal one relied on is, that from time immemorial, subject to some small exceptions in summary jurisdiction, no appeal ever lay from an acquittal. To succeed in this argument, the respondents must convince this court that an appeal against an acquittal is not constitutionally permitted by virtue of Article 34.4.3 of the Constitution which provides: It is not in dispute that any one provision of the Constitution must be interpreted in light of the Constitution as a whole. Based on that principle, Finlay P. and Henchy J. in The People (DPP) v. O’Shea [1982] I.R. 384 trenchantly argued against the proposition that there could be an appeal from an acquittal and those arguments have been more or less repeated by the respondents in this appeal. The respondents, however, are in the difficulty (which for quite some time they did not appear properly to confront) that the judgments of the two above-named judges of this court were minority judgments and that quite clearly the majority of the court consisting of O’Higgins C.J., Walsh and Hederman JJ. held that the constitutional provisions cited above must, in the absence of some countervailing provision in the Constitution itself, be given a literal interpretation which inevitably led to the conclusion that an appeal from an acquittal did lie.

Significantly, Henchy J., in his minority judgment at p. 245 of the report makes the following concession. However, as pointed out in their submissions there was a crumb of comfort for the respondents. Although O’Higgins C.J. and Walsh J. clearly considered that not only did an appeal lie but that any appropriate consequential orders such as, for instance, a new trial could be ordered under what they considered to be an inherent jurisdiction of the court, the third member of the majority, Hederman J., said the following at p. 445 of the report: That reservation proved to be significant afterwards as I will be explaining.

In arriving at the majority decision, the judgments to various degrees relied on The State (Browne) v. Feran [1967] I.R. 147 and The People (Attorney General) v. Conmey [1975] I.R. 341. I do not find it necessary to consider those cases having regard to the view which I am adopting.

Rather surprisingly, when this appeal first came on for hearing, neither in the written submissions, which preceded it nor in the oral submissions at the hearing was there any formal request to the court to reconsider O’Shea and if it thought fit, to overrule it. In using the word “surprisingly” I mean only that it would be difficult otherwise to see how an argument that an acquittal was unappealable could succeed. However, at the resumed hearing following on the delivery of the preliminary judgment, counsel for the respondent made it clear that this court was being requested to overrule O’Shea. I should perhaps mention at this stage that the original verdict in O’Shea had been a verdict by direction to the jury. Although a distinction between that situation and the situation where an ordinary verdict was arrived at by a jury has been aired in subsequent case law as relevant, that does not seem to conform with the thrust of the opinions expressed by O’Higgins C.J. and Walsh J., though it does appear that O’Higgins C.J. regarded actual jury findings as somewhat more sacred than did Walsh J. It is also true, of course, that Hederman J. did not really express any particular opinion as to whether a relevant distinction could be made in this regard.

My own view would be that such a distinction would be irrelevant. There is no statute which makes any such distinction (except in the special context provided for in section 34 of the Criminal Procedure Act, 1967) and on the present state of the law, a verdict of a jury by direction is just as much a verdict of a jury as a verdict of a jury otherwise than by direction. It has also been suggested in the case law that distinctions could be drawn between a direction given consequent on a procedural defect on the one hand and a direction given in respect of the substance of the case on the other. Again, I think any such distinction would be dubious. Although there is no statute governing it, I also believe that a judge alone, such as Dunne J., hearing a committal and attachment motion in respect of an alleged serious criminal contempt of court is in an analogous position to the Special Criminal Court and must conduct the hearing as though there was a jury. Similar consequences would flow on an appeal. It is clear that in fact this was the approach which Dunne J. adopted given that she entertained an application for a direction.

However, I have come to a conclusion, based to a large extent on the judgment of Henchy J. in The State (DPP) v. Walsh [1981] 1.R. 412 that even if O’Shea was wrongly decided, there would still always have been a right of appeal at least on essential issues of law from a refusal to make orders of attachment and committal. In my view, the reasoning adopted by Finlay P. and Henchy J. in O’Shea in maintaining that an appeal from an acquittal must by implication be excluded from the provisions of Article 34 would not apply to a refusal of an order for attachment and committal albeit in respect of a criminal contempt because of the special characteristics of that process which are highlighted very clearly in the judgment of Henchy J. in Walsh to which I will now refer. In Walsh, this court upheld the jurisdiction of the High Court to try respondents summarily and without a jury for charges of contempt of court in the form of scandalising the Special Criminal Court there being no controversial factual issues for the hearing of which a jury would be required. This was a unanimous decision of five judges of this court, namely, O’Higgins C.J., Henchy, Kenny, Griffin and Parke JJ. However, there were only two written judgments, those of O’Higgins C.J. and Henchy J. Two of the other judges, Griffin and Kenny JJ., agreed with the judgment of Henchy J. whereas Parke J. agreed with the judgment of O’Higgins C.J. What is contained in the judgment of Henchy J. therefore can reasonably be considered as the view of the majority. Based on a careful review of the earlier case law which I do not find it necessary to repeat, Henchy J. concluded at p. 432 of the report that the question of the constitutionality of a summary trial of a charge of serious criminal contempt otherwise than in the face of the court was what he called “res integra”. I fully appreciate, of course, that this issue does not directly arise in this case. There was no objection to Dunne J. trying the case without a jury but subsequent dicta of Henchy J. to which I will be referring are highly relevant to the understanding of the sui generis nature of contempt proceedings and the consequences which flow from it. In my earlier judgment, I expressed the view that contempt of court cases were “sui generis” in some respects. I have since discovered that that view is actually expressed by Henchy J. at p. 433 of the report. To avoid an unnecessarily long judgment, I am skipping his treatment of the United States law. The older Irish authorities, Attorney General v. O’Kelly [1928] I.R. 308 and Attorney General v. Connolly [1947] I.R. 213 had held that a summary trial was permissible. As Henchy J. points out, this view was indirectly derived from the House of Lords decision in Cox v. Hakes (1890) 15 A.C. 306. That case, however, had dealt with statutory interpretation and not constitutional interpretation which was now governed, as pointed out by Henchy J. by the judgments in The State (Brown) v. Feran cited above. Henchy J. went on to conclude that in a serious criminal contempt case, the guarantee of a jury under Article 38, s. 5 did apply. But he drew attention to something which is not often adverted to. He pointed out that the guarantee by Article 38, s. 5 related to trial with a jury (his emphasis). He went on to assert the following at p. 438 of the report: What emerges from that lengthy extract from the judgment of Henchy J. is that a trial with a jury of a motion for attachment and committal in respect of a non-minor criminal contempt has to be conducted differently from an ordinary trial for indictable crime. Certain issues which would in the ordinary way be regarded as issues of fact and, therefore to be determined by a jury must, in the overall interests of the due administration of justice, be deemed to be issues of law and left to the determination of the judge. The learned judge conceded that some of what he was saying had to be regarded as obiter dicta. Nevertheless, the judgment received the unreserved approval of Griffin and Kenny JJ.

The judgment of O’Higgins C.J. with whom Parke J. agreed is along somewhat different lines but it clearly establishes that a criminal offence even if non-minor of a contempt of court is dealt with in a special way. For instance at page 429 of the report O’Higgins C.J. makes the following observation: I draw the conclusion from these judgments and from the special procedures used in relation to criminal contempt cases that there would be no legitimate basis for arguing that an appeal did not lie from a refusal to accede to a motion for contempt whether that refusal arose from a direction or otherwise and whether or not the High Court judge was sitting with a jury. As in every case, the findings of a jury on issues of fact put to them could not, as such, be interfered with on appeal. If it is so important as suggested by Henchy J. (and in my opinion correctly) that the ultimate question of whether a contempt existed or not should be left to the judge in the overall interests of having a settled jurisprudence as to how justice is to be administered, then there is all the more reason for allowing the matter go to a final appellate court. In my view, therefore, irrespective of whether O’Shea’s case was correctly or incorrectly decided there would still be an appeal from the order of Dunne J.

As far as I can recall, counsel and possibly even the court at the two hearings so far in this appeal assumed that the alternative to Dunne J. hearing this contempt motion, as she did without a jury, was an ordinary trial in the Central Criminal Court before a jury and upon indictment. Without necessarily suggesting that there would be anything illegal or inappropriate about such a trial, it would seem to me that under the procedure contemplated by Henchy J., the judge of the High Court, hearing a motion for attachment and committal, could sit with a jury in the case of a non-minor criminal contempt and where there was controversy about actual facts which it would be appropriate to have determined by a jury.

According to Halsbury there has not been a trial upon indictment for contempt of court in England since 1902. I have been unable to find in the digests any example of such a case in Ireland but there may have been one. The only actual example given in Halsbury of a trial of contempt on indictment before 1902 was an 1878 case R. v. Dodwell involving an “assault on judge in precincts of court”. Interestingly, Halsbury in the same paragraph, paragraph 87 of Vol. 9 of the 4th edition quotes an Irish judge, Fletcher J. in a case called Taaffe v. Downes decided in the Irish Court of Common Pleas in 1813 as stating that “the mode of proceeding by attachment stands upon the same foundation and basis as trials by jury do – immemorial usage and practice”.

Having expressed the view that an appeal does lie, I think it appropriate to make another slight diversion before considering the merits. If I am wrong in the approach which I have adopted and if, nevertheless it were the view of the court that O’Shea ought not to be overruled, it would then become necessary to consider what order, if any, should be made by this court in the event of the appeal being successful. If the hearing conducted by Dunne J. is to be regarded, as I think it should be, in exactly the same way as a hearing by her with a jury would have been treated, then, as is pointed out on behalf of the respondents in their submissions, there is potentially at least a serious qualification on the effect of O’Shea by reason of the later decision of this court in The People (DPP) v. Quilligan (No. 2) [1989] I.R. 46. That was a differently constituted Supreme Court comprising of Walsh, Henchy, Griffin, Hederman and McCarthy JJ. Notwithstanding that in accordance with O’Shea’s case an appeal to this court had been entertained in respect of an acquittal and that the appeal had been allowed, it was decided by a majority of three judges to two (Henchy, Griffin and Hederman JJ.) that a new trial should not be ordered. Walsh and McCarthy JJ. took a different view. However, the issue as an issue of law technically remains undetermined because although Hederman J. joined in the majority order in that particular case he reserved his position on the general principle, as indeed he had done in O’Shea’s case. I do not find it necessary to express any view on this issue given that I am of opinion at any rate, that in the circumstances of this case, a new trial or hearing ought not to be ordered for the practical reasons indicated later in this judgment.

It is curious and indeed somewhat artificial that the refusal of the motion for attachment and committal was decided in the context of an application for a direction where the motion was up to that point solely grounded on affidavit evidence. In dealing with the application for a direction and despite the careful judgment of the learned High Court judge, I am of the view that she fell into error in two respects.

The first relates to the structure of the judgment. Half way through it, the learned trial judge expressly and indeed correctly acknowledges that what she was then dealing with was an application by Mr. Shane Murphy, S.C., on behalf of the respondents “for a direction at the close of the prosecution’s case on the basis that as the onus of proof rests with the applicant to prove all matters in issue by reference to the criminal burden of proof beyond reasonable doubt that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it.” She goes on to note that Mr. Murphy had referred to the well-known case of R. v. Galbraith [1981] 1 WLR 1039. Counsel had apparently submitted that it was essential that there must be proof before the court of a real risk of interference with a criminal trial. The judge then referred to part of his argument which was that allegedly there was no evidence as to when there was to be a trial and that no evidence was adduced by the prosecution to demonstrate that the publication of the article on the 2nd December, 2004, created any real risk of interference with the due administration of justice in the prospective criminal trial of Patrick O’Dwyer.

From then on, there is nothing to indicate that the learned judge was in fact deciding an application for a direction. The whole tone of the remainder of the judgment was appropriate only to a final decision. I have little doubt that this may have been entirely an unintended consequence and that the learned judge was aware that she was dealing with an application for a direction but unfortunately nowhere does she tease out the question of whether at least there was a prima facie case. If she did consider this issue separately and was of the view that there was not, she should have said so but even if she had said so, I would respectfully take a different view. Taken in conjunction with my observations on the second error to which I will be referring, I would be of opinion there was clearly an arguable case for a conviction having regard to the nature of the publication. If there was a prima facie or in other words arguable case, as I have suggested, the learned judge should have refused the direction. If there was no evidence called after that, she would, of course, have to then decide the case. On the face of it at least those procedures were not carried out and the result (probably unintended) was that there was delivered what to all intents and purposes appeared like a final judgment.

I now return to what I regard as a second error. In my view, the learned High Court judge ought not to have attached significance as she appears to have done to the so-called fade factor.

As pointed out in the second supplemental written submissions filed on behalf of the appellant, I expressed the view in my judgment in Rattigan v. The DPP delivered the 7th May, 2008 that while a fade factor might be relevant in an application to injunct or prohibit a trial because of adverse publicity it was not normally a relevant factor in a contempt motion. I expressly approved the comments made in the joint judgment of Mason C.J. and Toohey J. in the Australian case of R. v. Glennon (1992) 173 C.L.R. 592. Those learned judges said the following: I am of opinion, therefore, that the appeal should be allowed. Given the sui generis and autonomous nature of contempt proceedings as already illustrated, I do not believe that there is any inherent problem in this court ordering a new trial. A long time has elapsed however in the appeal process in this case having regard to the unusual and complex problems which arose. By any standard the case is now somewhat stale. It was important from the point of the view of the Director of Public Prosecutions to establish the correct legal position both in relation to procedures and the substance. That has been achieved and in all the circumstances, I would be of the view that the court should exercise its discretion against ordering a new trial.

Given that the trial stopped at the stage of an application for a direction, there could obviously be no question of this court making any final determination as to whether there was contempt or not and still less could this court embark on the imposition of penalties. I would add that even if the decision of Dunne J. had been given at the end of a full hearing and not by way of an application for a direction, it would still be wholly inappropriate for this court to deal with matters of sentence. In that event, the case would have to be returned to the High Court for sentencing. Otherwise, this court would be acting as a court of first instance and furthermore there would be no appeal.

I would allow the appeal but would confine the order to
a) a declaration that the appeal should be allowed on the basis that the direction ought to have been refused;
b) an order setting aside the order of the High Court;
c) an order refusing all further relief sought in the notice of appeal.

DPP v. Independent Newspapers & Ors.

JUDGMENT of Mr. Justice Hardiman delivered the 5th day of March, 2009.
In my previous judgment in this matter, delivered on the 5th March, 2008, I expressed the view that the court should decline to entertain the Director’s purported appeal, on the basis that no such appeal lay by virtue of s.
11 of the Criminal Procedure Act, 1993. This conclusion, in turn, rested on the proposition that because the Director’s application against the respondents was a proceeding of a criminal nature. The High Court in hearing it was acting as the Central Criminal Court, by virtue of s.11 of the Courts (Supplemental Provisions) Act, 1961, and in particular subsection (1) thereof.

That conclusion, of course, would be sufficient to dispose of the entire appeal. However, my judgment was a minority one, all my colleagues being of the view that the High Court was not acting as the Central Criminal Court in hearing this application.

Subsequent to the decision on that issue, the matter was adjourned for further argument on the merits. I consider that, in the circumstances of the case, the judgment of the Court, by majority, of the 5th March, 2008, is binding on me i.e. that I must assume that an appeal does lie.

On that assumption, I agree with the order proposed by Mr. Justice Geoghegan and the judgment in which that proposal is made, subject to a few remarks made below.

I specifically agree with Mr. Justice Geoghegan’s conclusions on the question of an entitlement to jury trial on a contempt application, as arising from the constitutional provisions in relation to the trial of offences. It occurs to me that the verdict of the jury on such a trial would have to be in the nature of a “special verdict” i.e. the jury would answer specific questions put to them by the judge having heard the parties, much like the procedure followed in a civil action tried with a jury. The question of whether, having regard to the facts found by the jury, a contempt of court should be found, would then in every instance be a matter for the judge, for the reasons given by Mr. Justice Geoghegan.

Fortunately, contempt of court is not a matter which arises very frequently in the courts’ work. No doubt it is for that reason that some very basic questions are now the subject of full argument for the first time. Although not frequently exercised, it is absolutely essential that the Court should possess a jurisdiction to protect the integrity of their proceedings against loud and plangent assertions of the guilt (or innocence) of a person against whom proceedings are pending, long before the trial begins. There is clearly a case for the Oireachtas to consider whether, as has been done in the neighbouring jurisdiction, the complex and in some respects archaic common law of contempt should not now be placed on a statutory basis.

I wish to make two specific comments on the judgment of Mr. Justice Geoghegan. Firstly, I wish entirely to agree with what he said about the role of the so called “fade factor” in applications of this sort. It may be a matter of great significance on an application to prohibit a trial on the ground of prejudicial publicity, but that is an application of quite a different sort from the present. The question of whether a publication is or is not a contempt of court falls to be decided as to of the time it was published and to that issue the fade factor is not relevant at all. On the other hand, on an application to prohibit a trial, it may be of the greatest significance and may in particular suggest that an adjournment of the criminal proceedings is the appropriate remedy. But I would also observe, as I believe I have elsewhere, that the question of the “fade factor” is often dealt with on both sides in an impressionistic and unscientific fashion but of course the question of what evidence is deployed on these issues is a matter for the parties.

Although the law of contempt has become encrusted with technicalities over the years, especially in the absence of statutory reform, it is not in any sense a purely technical area. On the contrary, the law which prohibits prejudicial comment one way or the other in a pending criminal trial protects a very basic human and civil right: the right to have the guilt or innocence of persons accused of crime assessed by the proper tribunal, untroubled by outside pressures or by public assertions, express or implied, to the effect that the defendant is or is not guilty or should or should not be convicted.

Many Irish people will remember how strange and how utterly unfair it seemed, thirty years ago, when the media in another jurisdiction appeared, with impunity, to assume the guilt of certain Irish people facing criminal charges. It is no less inappropriate in this jurisdiction. In relation to almost every sort of criminal charge there are some persons who will be gratified or advantaged if the alleged criminals are “led out in handcuffs”. But such persons, especially if they are newspaper editors or others who are powerful or influential in the shaping of public opinion, must take care not to pollute the fountain of justice by expressing, or seeming to express, a view as to the guilt or innocence of accused persons, especially in lurid or vivid terms. Apart from anything else, such views are rarely based on an examination of the evidence which will eventually come before the trial court.

I also wish to observe that I adhere to the view expressed in my previous judgment that the matter before the High Court was a criminal matter and was not either a civil matter or a matter which was sui generis. Indeed I reiterate my approval of the statement of Chief Baron Palles, whose full context is set out in my previous judgment, that the jurisdiction which the High Court was exercising on this application was “a jurisdiction essentially criminal”. The application is not, of course, such as attracts the same procedures as a trial on indictment, for the reasons given by Mr. Justice Geoghegan. But that does not detract in my view from its essentially criminal nature.

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