Supreme Court allows Director's appeal on contempt of court, affirming High Court's criminal nature finding.

THE SUPREME COURT

221/05

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

IN THE MATTER OF A CONTEMPT OF COURT

and

IN THE MATTER OF AN APPLICATION PURSUANT TO ORDER 44

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant/Appellant

and

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED, GERARD O’REGAN and ANNE MURRAY-WALSH

Respondents

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.