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Judgment Title: O'Brien v Director of Public Prosecutions
Neutral Citation:  IESC 39
High Court Record Number: 2013 53 JR
Date of Delivery: 14/05/2014
Court: Supreme Court
Composition of Court: Denham C.J., Murray J., MacMenamin J.
Judgment by: Denham C.J.
Status of Judgment: Approved
THE SUPREME COURT
Appeal No: 277 & 288/2013
The Director of Public Prosecutions
Judgment of the Court delivered on the 14th day of May 2014, by Denham C.J.
1. This is an appeal by Breifne O’Brien, the applicant/appellant, referred to as “the appellant”, from the judgment of the High Court (Kearns P.) delivered on the 16th May, 2013, which refused the primary relief sought by the appellant, i.e. the prohibition of his trial, but ordered that the trial, the subject matter of the proceedings entitled The DPP v. Breifne O’Brien, Bill No. DUDP 1081/2012, pending before the Dublin Circuit Criminal Court, be stayed for a period of twelve months from the 16th May, 2013.
2. The Director of Public Prosecutions, the respondent, referred to as “the DPP”, filed a cross appeal in respect of that part of the judgment and order where the High Court granted a temporary stay until the end of the second quarter of 2014.
The High Court
6. The High Court reviewed the material complained of, which was categorised into four headings as follows:-
(ii) a chapter in a book entitled “Bust: How the Courts Have Exposed the Rotten Heart of the Irish Economy” by Dearbhail McDonald;
(iii) numerous articles, many of a lurid and sensational nature, contained in newspapers between 2008 and 2012;
(iv) a television documentary entitled “Beware Ireland, Con Artists Caught in the Act”, first televised on the 29th February, 2012, repeated on the 3rd October, 2012, and again repeated on channel 3e on the 1st January, 2013.
8. The High Court accepted that there had been extensive factual and emotive publicity, and evaluated the potential impact of the material in the context of empanelling a jury, in the second quarter of 2014, to hear and determine the case.
9. The President of the High Court concluded:-
I would thus have reservations about a trial proceeding in the immediate future. That said, I see no reason why, after a reasonable interval of time, a trial, suitably managed by a judge who would give all necessary warnings and directions, could not take place.
In the case of this particular application, counsel for the [appellant] indicated that, if his application for a permanent prohibition was unsuccessful, he would in the alternative seek as long a stay as possible to allow the ‘fade factor’ to operate.
On the unchallenged evidence before the Court, a trial is unlikely to occur before the second quarter of 2014. Counsel for the [appellant] stressed that if an earlier trial date became available due to the adjournment or non-commencement of some other lengthy case, the present case might be leapfrogged to an earlier hearing date.
In those circumstances I will direct a stay on the actual trial of the [appellant] for twelve months from today’s date. This need not hold up or otherwise affect the making now of arrangements for the holding of the trial in 12 months time. I do not believe any of the material relied upon [by] the [appellant] in making this application justifies granting any more extensive relief, and certainly not the total prohibition of the trial sought on his behalf. However, that is not to say that the [appellant] would be precluded from bringing a further application if, apart from reports of this judgment and decision, there were to be a significant recrudescence of adverse publicity between now and a trial scheduled for the second quarter of 2014.”
(ii) The learned trial judge erred in law and in fact in holding that the comments of Mr. Justice Peter Kelly made in the course of prior civil proceedings and widely repeated in the print broadcast and electronic media, do not give rise to a real and unavoidable risk of unfairness.
(iii) The learned trial judge erred in law and in fact in concluding that the above comments were proportionate and balanced in all of the circumstances and that their making had been permissible and appropriate.
(iv) The learned trial judge erred in law and in fact in holding that the contents of the book entitled Bust: How the courts have exposed the rotten heart of the Irish Economy, authored by Dearbhail McDonald, a full chapter of which is devoted to the [appellant] and the allegations made in respect of him, does not give rise or contribute in any significant way to a real and unavoidable risk of unfairness.
(v) The learned trial judge erred in law and in fact in failing to have regard, when reaching his decision in the case, to the extent to which prejudicial material which is unlikely to be deemed admissible in any subsequent criminal trial of the [appellant] has been widely and repeatedly referenced and disseminated in the print, broadcast and electronic media.
(vi) The learned trial judge erred in law and in fact in failing to have any or any sufficient regard, when considering his decision in this case, to the cumulative effect of the prejudicial material, identified by the appellant in these proceedings, in relation to the appellant personally and his alleged involvement in the criminal conduct the subject matter of the said criminal trial.
(vii) The learned trial judge erred in law and in fact in holding that in all the circumstances any risk of unfairness which might arise by reason of the adverse publicity complained of, could adequately be dealt with by way of appropriate judicial warnings and directions.
(viii) The learned trial judge erred in law and in fact in holding that in all the circumstances any risk of unfairness which might arise by reason of the adverse publicity complained of, would dissipate sufficiently with the passage of time or by operation of the so-called “fade factor”.
(ix) The learned trial judge erred in law and in fact by attaching in his decision, undue weight to both the efficacy of appropriate judicial warnings and directions and the operation of the so-called “fade factor”, in remedying the impact of adverse pre-trial publicity on the minds of jurors and the attendant risk of unfairness arising therefrom, in the absence of any genuine empirical evidence for same.
11. The Court received written submissions from the appellant and the DPP.
Oral Submissions from the Appellant
14. The appellant stated that he was a lay litigant, that he could not now afford a legal team, and that he had been unable to obtain legal aid. In those circumstances he sought an adjournment.
15. A person is entitled to legal aid if they fit the established criteria. Applications for legal aid are not a matter within the jurisdiction of this Court. Consequently, this is not a ground upon which to grant an adjournment, and so this application was refused.
16. The second ground upon which the appellant sought an adjournment was his application that the recent decision of this Court in DPP v. Gormley & White  IESC 17, was relevant to his case. However, that case is not relevant to the facts and basis of this appeal, and thus is not a ground upon which to grant an adjournment in these proceedings.
Appellant’s Submissions on the Substantive Issues
18. The submissions made by the appellant were essentially threefold, although there was a degree of interconnection. These were:-
(iii) The passage of 365 days will not erase the issues Kearns P. considered extant and preventative of a fair and impartial trial at that time.
19. On behalf of the DPP, it was submitted, in essence, that a jury properly directed can fairly try this case; that there is no real or demonstrated risk that a jury, properly directed, will decide this case on anything other than the evidence properly adduced in the trial. The DPP submitted that there was no requirement in the first instance to allow a period of “fade” in order to safeguard the appellant’s fair trial rights, particularly with regard to the limited impact of the most recent television broadcast on 3e with an apparently low viewership, the historic nature of the balance of the other publicity relied upon, and the commonsense intelligence that a jury brings to bear in dealing with a case on the basis of the evidence adduced. It was submitted that juries can be relied upon to discharge their duties carefully and cognisant of the court’s directions. It was also submitted that the order made was unnecessary in that the evidence before the Court was that the case would not come on for hearing before the second quarter of 2014 in any event.
20. In this appeal, the appellant, while advancing the threefold aspects of his appeal, relied significantly on the European Convention on Human Rights, referred to as “the ECHR”, and cases from the European Court of Human Rights, referred to as “the ECtHR”. This appears to have been a nuanced difference to the case advanced in the High Court.
21. The Court has considered carefully the documents in the case, the exhibits which set out the printed media coverage complained of, and the DVD of the TV programme which has been viewed by the members of the Court.
23. Much of the publicity complained of by the appellant occurred before he was charged.
24. Under s. 4A of the Criminal Justice Act, 1967, as inserted by s. 9 of the Criminal Justice Act, 1999, provisions relating to indictable offences are set out. There are provisions providing that the proceedings are not to be published or broadcast in accordance with s. 4J of the Act of 1967, which provides as follows:-
(a) a statement of—
(ii) any decision resulting from the proceeding,
(b) in the case of an application under section 4E for the dismissal of a charge against the accused, any information that the judge hearing the application permits to be published or broadcast at the request of the accused.”
26. Once the criminal process has been commenced by a charge, there is a clear responsibility on all publishing and broadcasting bodies not to disrupt these court proceedings. This responsibility includes not publishing material which creates a real risk of an unfair trial. Publication of such information may be a contempt of court.
27. Also, there is a duty on the DPP, as the prosecutor on behalf of the people, to take all reasonable steps to protect a fair trial. This duty includes, where necessary, instituting proceedings for contempt of court.
28. Although a letter was written, prior to the hearing of the High Court on the appellant’s application, to certain media organisations, the DPP took no legal proceedings, or any proceedings, in this case.
29. The first and second of the appellant’s threefold submissions will be taken together and considered by the Court. These are:- (i) the alleged breach of the presumption of innocence of the appellant owing to the comments of Kelly J.; and (ii) that these comments are in breach of the appellant’s entitlement under the ECHR, particularly Articles 6.1 and 6.2.
30. The presumption of innocence is a fundamental principle under the Constitution, embedded in the right to a fair trial, and in the right to due process. Consequently, it is an inherent aspect of Article 38.1° of the Constitution. However, the appellant commenced his legal argument by reference to the ECHR and decisions of the ECtHR.
Case-law of the ECtHR
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction,
(c) any decision of the Committee of Ministers established under the statute of the Council of Europe on any question in respect of which it has jurisdiction,
and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.”
35. The appellant referred the Court to a number of cases of the ECtHR, including the following, which were of assistance to the Court.
36. In Eckle v. Germany (Application no. 8130/78, 15 July 1982) the ECtHR held that the difficulties of an investigation and the behaviour of the applicants did not, on their own, account for the length of the proceedings exceeding a reasonable time in breach of Article 6.1 of the ECHR. Unreasonable delay is not in issue before this Court, and the decision is therefore not relevant and, accordingly, references in the judgment to procedures are not relevant either.
37. The appellant relied on Deweer v. Belgium (Application no. 6903/75, 27 February 1980). The applicant in this case claimed to be a victim of “the imposition of a fine paid by way of settlement under constraint of provisional closure of his establishment” contrary to Article 6.1 of the ECHR. The issue was whether the manner in which the law was applied in the specific circumstances was compatible.
38. The ECtHR considered the issue of “charge” at para. 42 and stated:-
Article 6 (art. 6) was therefore fully applicable by virtue of the last-mentioned phrase.”
42. The Deweer v. Belgium decision does not assist this Court on the issues raised before it on this appeal as there is no question of settlement in the proceedings or constraint on the appellant.
43. The appellant relies on the above mentioned authorities to support the contention that, as Kelly J. referred the case to the Garda Síochána on the 19th January, 2009, that constitutes the effective date of charge.
44. However, the Court dismisses this submission. It is not a ground of appeal. Addressing the matter, notwithstanding, it is clear from the quotation above that ‘charge’ for the purpose of Article 6.1 of the ECHR is official notification given to an individual by the competent authority of an allegation that he or she has committed a criminal offence.
45. In this case, in civil proceedings, a judge merely indicated that he was referring the papers to the Garda Bureau of Fraud. That is not official notification to the appellant by the competent authority of an allegation that he has committed a criminal offence.
46. The appellant was arrested first on the 7th July, 2011, and released. He was charged on the 20th September, 2012, and in November, 2012, in accordance with the procedure set out previously in this judgment. The referral to the Garda Bureau of Fraud of the papers by Kelly J. in the civil proceedings before the Commercial Court was not the date of charging the appellant in criminal proceedings.
47. The appellant submitted that he supported his appeal with a range of decisions of the ECtHR which set out the fundamental requirement in a democratic society that the courts inspire confidence in the public and, importantly, as far as criminal proceedings are concerned, above all in the accused. The appellant submitted that, following the remarks of Kelly J., he has little prospective confidence in the impartiality of a tribunal convened to “criminally try him on the charges currently before the Court”.
48. The DPP has argued that decisions of the ECtHR raised by the appellant are not relevant to his appeal. The Court has considered this submission together with the submissions of the appellant.
49. The applicant in Kyprianou v. Cyprus (Application no. 73797/01, 15 December 2005) alleged a breach of a number of articles of the ECHR, including Articles 6.1 and 6.2. The applicant was a lawyer defending a person accused of murder before the Limassol Assize Court. He was subsequently convicted and imprisoned for contempt of court. The applicant claimed that although the domestic court had provided the opportunity for him to make submissions on the issue of contempt, they had been limited to the issue of mitigation of penalty. It was contended that the judges of the Limassol Assize Court had failed to satisfy the requirement of impartiality under both an objective and subjective test.
50. The appellant drew the attention of this Court to p. 29 of the decision, which was a consideration by the ECtHR of the issue of subjective bias. This aspect of the case was directed to the judges’ personal conduct. The ECtHR examined a number of aspects of the judges’ conduct. The Court was referred to the specific language adopted by the judges and held:-
51. The above case is not applicable to the circumstances of this appeal. The statements of Kelly J. were made in a civil court, after the appellant had not contested the matters brought by plaintiffs before that Commercial Court. These were not the criminal proceedings and indeed Kelly J. has no role as a judge in the criminal proceedings. Consequently, the issue of alleged bias by Kelly J. has no relevance to the criminal trial of the appellant, except as to the issue of pre-trial publicity, which will be addressed further in this judgment. There arises no issue of pre-judgment or bias in this appeal.
52. The appellant referred the Court to Minelli v. Switzerland (Application no. 8660/79, 25 March 1983) and in particular para. 37 of that decision. The applicant in Minelli was a journalist who had published an article in the ‘National Zeitung’ containing accusations of fraud against a company, Télé - Répertoire S.A. and its director, Mr. Vass. The facts recounted by the applicant had previously been the subject of an article by another journalist, Mr. Fust, in the daily newspaper, ‘Blick’. The company and Mr. Vass brought a criminal complaint of defamation against both journalists. The Zurich Assize Court decided it could not hear the complaint against the applicant because the absolute limitation period of four years had expired. The domestic court also held that the applicant should bear two thirds of the costs. This finding was based on an article of the Swiss Code of Criminal Procedure which provided that the losing party bear the costs of the proceedings and pay compensation to the other party in respect of his expenses, save in such special circumstances which warrant departure from the rule. The Zurich Assize Court held that it must make a costs order reflecting the judgment that would have been given had the limitation period not expired. It held that it was to be assumed that if the proceedings had not been prevented by reason of the expiration of the limitation period that the criminal complaint would “very probably lead to the conviction of the accused”.
53. In the circumstances of that case, the ECtHR stated, commencing at para. 37:-
38. The Chamber of the Assize Court based its decision on Article 293 of the Zürich Code of Criminal Procedure, which, in the case of a private prosecution for defamation, permits a departure, in special circumstances, from the rule that the losing party is to bear the court costs and pay compensation to the other party in respect of his expenses (see paragraph 19 above). In the light of Zürich case-law, it found that in the present case "the incidence of the costs and expenses should depend on the judgment that would have been delivered" had the statutory period of limitation not expired. To decide this point, it had regard to four matters (see paragraph 13 above): the fact that the case was virtually identical to that of the journalist Fust, which had resulted on 2 September 1975 in a conviction (see paragraph 10 above); the seriousness of the applicant’s accusations against Mr. Vass; the applicant’s failure to verify his allegations; and the negative outcome of the 1972 prosecution of Mr. Vass (see paragraph 9 above).
For these reasons, which were set out at length and cannot be dissociated from the operative provisions (see the above-mentioned Adolf judgment, Series A no. 49, p. 18, § 39), the Chamber of the Assize Court concluded that, in the absence of limitation, the ‘National Zeitung’ article complained of would ‘very probably have led to the conviction’ of the applicant. In setting out those reasons, the Chamber treated the conduct denounced by the private prosecutors as having been proved; furthermore, the reasons were based on decisions taken in two other cases to which, although they concerned the same facts, Mr. Minelli had not been a party and which, in law, were distinct from his case.
In this way the Chamber of the Assize Court showed that it was satisfied of the guilt of Mr. Minelli, an accused who, as the Government acknowledged, had not had the benefit of the guarantees contained in paragraphs 1 and 3 of Article 6 (art. 6-1, art. 6-3). Notwithstanding the absence of a formal finding and despite the use of certain cautious phraseology (‘in all probability’, ‘very probably’), the Chamber proceeded to make appraisals that were incompatible with respect for the presumption of innocence.”
Accordingly, the ECtHR found that there had been a violation of Article 6.2.
55. The Court’s attention was also brought to the decision in Allenet de Ribemont v. France, (Application no. 15175/89, Strasbourg 10 February 1995). In that case, some of the highest ranking officers in the French Police Force referred to the applicant, without any qualification or reservation, as being one of the instigators of the murder of a member of Parliament, and thus an accomplice in the murder. The ECtHR considered this to be a declaration of his guilt, which encouraged the public to believe him guilty, prejudged the assessment of the facts, and thus found that there was a breach of Article 6.2.
56. However, the facts of that case are different and distinguishable from this case. Notably, in Allenet de Ribemont the statement announcing the guilt of the applicant was made at a press conference reported by two news programmes on two French television channels, and those making the statements were two high ranking police officers and the Minister of the Interior. Further, the two police officers making the statements were conducting the investigation of the crime with which the applicant was subsequently charged.
57. Thus, this case may be distinguished by factors including that, in the Allenet de Ribemont case, the assertions of guilt were made in public press conferences, by two high ranking police officers who were directly involved in the criminal investigation. In contrast, in this case, the remarks made by Kelly J. were in the context of civil proceedings, which the appellant did not oppose, and where there was a subsequent referral to the police for investigation. Further, the remarks of Kelly J. do not constitute “clearly a declaration” as to the appellant’s guilt, as was found in the Allenet de Ribemont case.
58. The decision of the ECtHR in Burkevicus v. Lithuania (Application no. 48297/99, 26 March 2002), was also brought to the attention of the Court. Commencing at para. 49, the ECtHR held:-
50. The Court notes that in the present case the impugned statements were made by the Prosecutor General and the Chairman of the Seimas in a context independent of the criminal proceedings themselves, i.e. by way of an interview to the national press.
The Court acknowledges that the fact that the applicant was an important political figure at the time of the alleged offence required the highest 'State officials, including the Prosecutor General and the Chairman of the Seimas, to keep the public informed of the alleged offence and the ensuing criminal proceedings. However, it 'cannot agree with the Government's argument that this circumstance could justify any use of words chosen by the officials in their interviews with the press.
51. Furthermore, the statements at issue were made just a few days following the applicant's arrest, except one impugned statement of the Chairman of the Seimas which was made more than a year later (see § 30 above). However, it was particularly important at this initial stage, even before a criminal case had been brought against the applicant, not to make any public allegations which could have been interpreted as confirming the guilt of the applicant in the opinion of certain important public officials.
52. The applicant relies on two statements of the Prosecutor General, the first made on the day on which leave was sought from the Seimas to institute criminal proceedings against the applicant, in which the Prosecutor General confirmed that he had ‘enough sound evidence of the guilt’ of the applicant, and the second, two days later, when he qualified the applicant's ‘offence as an attempt to cheat’. . While the statements, in particular the reference to the applicant's guilt, give some cause for concern, the Court accepts that they may be interpreted as a mere assertion by the Prosecutor General that there was sufficient evidence to support a finding of guilt by a court and, thus, to justify the application to the Seimas for permission to bring criminal proceedings.
53. Of more concern are the statements made by the Chairman of the Seimas to the effect that he entertained no doubt that the applicant had accepted a bribe, that he had taken money ‘while promising criminal services’, and that he was a ‘bribe-taker’. In this respect the Court has had particular regard to the fact that the Seimas had lifted the applicant's parliamentary immunity to enable criminal proceedings to be instituted against him.
The Court does not agree with the Government that all the Chairman's references to ‘bribery’ were irrelevant to this application. It is undisputed that the facts of the offence committed by the applicant, whilst subsequently classified by the prosecutors and the courts as an attempt to cheat, had frequently been interpreted by the media and the general public, prior to the applicant's conviction, as ‘bribery’ (see, for instance, § 30 above). It has not been contended by the Government that, by stating that the applicant was a "bribe-taker', the Chairman of the Seimas was not referring to the criminal proceedings in question. In the Court's view, this remark could therefore be interpreted as confirming the Chairman's view that the applicant had committed the offences of which he was accused.
While the impugned remarks of the Chairman of the Seimas were in each case brief and made on separate occasions, in the Court's opinion they amounted to declarations by a public official of the applicant's guilt, which served to encourage the public to believe him guilty and prejudged the assessment of the facts by the competent judicial authority.
54. There has therefore been a breach of Article 6 § 2 of the Convention.”
60. However, it was the statements made by the Chairman of the Seimas, including that he had no doubt that the applicant had accepted a bribe, and that he was a bribe taker, that caused the ECtHR concern. It was held, as set out above, that the statements of the Chairman of the Seimas were declarations by a public official of the applicant’s guilt, which encouraged the public to believe him guilty, and was a breach of Article 6.2 of the ECHR.
61. However, Burkevicus is also distinguishable from the case before the Court, for the following reasons. The impugned statements in Burkevicus included those of the Chairman of Parliament in a public interview to the national press. The Chairman, in public, stated that he had “no doubt” but that the applicant was guilty. This was an unequivocal statement of the applicant’s guilt. There was no such statement in this case. Also, it is noteworthy, that the Prosecutor General’s statement to the effect that he had “enough sound evidence” of the guilt of the applicant, was taken by the ECtHR to be a mere statement of the justification for the institution of proceedings.
63. The relevant law as to the right to a fair trial is well established in cases including Savage v. DPP  1 I.R. 185; Devoy v. DPP  4 IR 235; Z. v. DPP  2 I.R. 476; D. v. DPP  2 I.R. 465; Redmond v. DPP  4 I.R. 133; DPP v. Haugh  1 I.R. 184, Rattigan v. DPP  4 IR 639.
64. There is no necessity to restate the law, other than to state that the courts intervene to prohibit criminal proceedings in circumstances where, it is established that there is a real risk that by reason of the circumstances of the case the applicant could not obtain a fair trial. The onus rests upon the applicant who seeks to prohibit his or her trial. The appellant in this case submitted that he could not receive a fair trial due to the prejudicial pre-trial publicity. The individual’s right to a fair trial is a superior right to that of the community to prosecute, and a trial should not proceed if there is a real risk to a fair trial. However, the right of the community to prosecute, especially serious crime, and the position of victims, must also be considered by the Court
65. As Geoghegan J. stated in Rattigan v. DPP  4 IR 639 at para. 50:-
66. In this case, where the issue is prejudicial adverse publicity, there are several elements of the publicity, as set out previously, and they include:-
(ii) the media coverage, including those statements;
(iii) a chapter in the book written by Dearbhail McDonald entitled “Bust: How the Courts Have Exposed the Rotten Heart of the Irish Economy”;
(iv) the television documentary entitled “Beware Ireland, Con Artists Caught in the Act”, televised on the 29th February, 2012, repeated on the 3rd October, 2012, on channel TV3, and repeated on channel 3e on the 1st January, 2013.
68. The statements of Kelly J. in the Commercial Court in and around January, 2009, included a reference to ‘prima facie evidence’ of criminal activity, a referral of the papers to the Garda Bureau of Fraud, a comparison of the appellant to the character Montague Tigg in the novel Martin Chuzzlewit by Charles Dickens, references to the “Irish Bernie Madoff” and that the appellant had fallen on his sword, and a reference to the Shanahan stamp scandal.
69. The first and second ground of the appellant’s threefold submissions are that (i) there was an alleged breach of the presumption of innocence of the appellant owing to the comments of Kelly J., and (ii) that these comments are in breach of the appellant’s entitlement under the ECHR, particularly Articles 6.1 and 6.2.
Presumption of Innocence
71. Applying the exacting constitutional principles of due process of law, the right to a fair trial, and the presumption of innocence, the circumstances are not such as to prohibit the criminal trial of the appellant. While the statements of Kelly J. in the Commercial Court were strong, and were reported widely, they arose in a civil case where the appellant had not opposed the applications of his creditors in relation to facts indicating a type of ponzi scheme. The judge made no decision in relation to any criminal trial, other than to refer papers to the Garda Bureau of Fraud, so that consideration could be given as to whether an investigation was warranted. Kelly J. will not be a judge on any criminal trial of the appellant. In the said civil proceedings, the appellant did not challenge the allegations, and it was the alleged facts, which were not contested, which were the primary genus of the publicity. Thus, indeed, the appellant is relying on the fact that he did not contest the proceedings in the Commercial Court to stop his criminal trial. The statements made in the Commercial Court by the High Court judge were based on the evidence before him, including the fact that the appellant did not contest the facts. For example, Kelly J. said that there was prima facie sufficient evidence before him to refer the matter to the Garda Bureau of Fraud. It is then for the DPP to determine if there is to be a prosecution, and if she so determines, there is then a criminal trial, at which a basic principle is the presumption of innocence.
72. The fact that certain comments made by Kelly J. were not wise, does not mean that a person can no longer be prosecuted, in circumstances where it is possible to ensure a fair trial notwithstanding the comments and related media publicity.
73. The essential issue for this Court is to determine whether there is a real risk of an unfair trial of the appellant in June 2014, or later. A very long period has elapsed since the remarks were made. This period is sufficient to allow public memory to fade. Applying the principles of the Constitution, the appellant is presumed innocent, and there is no real risk in the circumstances to a fair trial. Consequently, the Court would dismiss this submission.
The passage of time
75. The issues raised in this appeal require a delicate balance. There was publicity arising from the statements of Kelly J., the book, and the TV programme. It must be acknowledged that there was a damaging aspect to that publicity. However, time has since elapsed. The statements of Kelly J. were made in and around January 2009, most of the sensational articles printed were between 2009 and 2012; the book was published in 2010; and the television documentary was screened twice in 2012, while the repeat in January 2013 on the 3e channel had low audience figures.
76. The circumstances giving rise to the civil proceedings, and the fact that the appellant did not refute the proceedings, were a cause of public concern. Such cases come before the courts. The media should strive better to contain reporting prior to criminal proceedings, when they may be anticipated. The DPP has a duty to apply for rulings of the courts to protect a fair trial. However, it remains a matter for the courts to achieve a balance in all such cases.
77. In the circumstances of this case, the fact that years have passed since the bulk of the publicity, the application of the fade factor, the fact that a trial judge sitting in a criminal court will be in a position to give directions to the jury, and to ensure that there is a fair trial, leads this Court to the conclusion that there is no longer a real risk of an unfair trial, and that the appellant enjoys the constitutionally protected presumption of innocence in any trial. The Court would dismiss the appeal. Consequently, the trial of the appellant may proceed at any time from June 2014.