Court of Appeal allows appeal dismissing contempt charge against newspaper articles criticizing Anglo Irish Bank officials. The court held no real risk to the fairness of the pending trial existed.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 341

Record No. 2016 104

Finlay Geoghegan J.

Hogan J.

Edwards J.

IN THE MATTER OF A CONTEMPT OF COURT AND IN THE MATTER OF AN APPLICATION PURSUANT TO ORDER 44 OF THE RULES

OF THE SUPERIOR COURTS 1986

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT /

RESPONDENT

- AND -

INDEPENDENT NEWS AND MEDIA PLC, CLAIRE GRADY, STEPHEN RAE AND INTERNET INTERACTIONS LIMTIED

RESPONDENTS /

APPELLANTS

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 20th day of December 2017

1. Judicial observations regarding the impact of the aftermath of the banking crash of September 2008 are a recurring theme of many

contemporary judgments. These comments are, as often as not, found in cases concerning applications for summary judgment

brought by credit institutions against defaulting debtors or in mortgage re-possession proceedings brought against distressed

householders. As it happens, the banking crash also forms part of the backdrop to this appeal, but in the unusual circumstances of an

application for contempt of court brought by the Director of Public Prosecutions. How did this arise?

Background facts

2. The background to this application brought on behalf of the Director of Public Prosecutions is, in summary, as follows. On the 17th

July 2014 The Irish Independent published a major article – or, perhaps, it might be more accurate to say, series of articles – entitled

“Anglo: the New Tapes Revealed.” (I propose for convenience to refer to this material as “the publications.”) The reference here is, of

course, to Anglo Irish Bank plc (“Anglo”), the bank centrally involved in the banking crash and whose insolvency ultimately cost the

taxpayer a sum apparently well in excess of €25bn. Three further sub-headings adorned the front page: “Recordings show how Drumm

tried to gloss over perilous state of bank”, “Bankers laughed and joked as financial crisis engulfed economy” and “Drumm said he would

give ‘Ladybird version’ of events to the Board.”

3. The reference to Drumm is a reference to Mr. David Drumm who is the former chief executive of Anglo. Although there were a

number of different dimensions to the story, The Irish Independent managed to secure tape recordings of discussions between Mr.

Drumm and the then head of Capital Markets in Anglo, Mr. John Bowe, on the 22nd January 2008. The articles conveyed a generally

unflattering portrait of senior banking executives who were struggling to cope with a worsening balance sheet and huge drains in

liquidity in the early part of 2008, even though the worst of the crisis was not to hit until September 2008.

4. Many of the articles and the accompanying commentary centred on two discussions in particular between Mr. Drumm and Mr.

Bowe. In one of them Mr. Drumm and Mr. Bowe consider the question of the re-purchase by Anglo of its own bonds at a discount.

Although Mr. Bowe objected that this might be seen as profiteering “on the back of our clients’ losses”, Mr. Drumm suggested a

strategy for purchasing small amounts “quietly” in the first instance. Mr. Bowe is then heard suggesting that the Bank’s wealth

management division “to go in and buy it so it looks like private clients…” The pair then discuss the morality of such a move, but in

the end Mr. Bowe suggests that the Bank should “just take the trading profit”. Mr. Drumm is then heard to agree, saying it “would be

a small move on the needle on the capital and nobody would care.”

5. In another discussion Mr. Drumm is heard to discuss with Mr. Bowe how the Bank’s funding difficulties should be addressed at an

up-coming Board meeting and suggesting that he would give an over-simplified version of certain movements on capital markets

affecting the Bank in order to re-assure the Board members. The other transcripts of these conversations were much in a similar vein

and the coarse language used reflected at once both the braggadocio and earthiness of the trading floor. Unfortunately for Mr.

Drumm and Mr. Bowe, the braggadocio did not read quite so well when presented in the cold light of day in the aftermath of a

horrendous banking crash. In these circumstances it is hardly surprising that The Irish Independent’s five page commentary on these

events was acerbic, bitter, unsympathetic and unforgiving.

6. To the modern reader acquainted with contemporary journalism all of this might seem unexceptionable. The Irish Independent had

secured a good story and was determined to exploit it for its own purposes. There was only one difficulty, however, namely, that Mr.

Bowe had been charged in December 2013 with offences of conspiracy to defraud and false accounting contrary to s. 10 of the

Criminal Justice (Theft and Fraud) Act 2001. He (and three other Anglo executives) had, in fact, just been returned for trial to the

Circuit Court on the 17th June 2014, i.e., within weeks of this publication. A trial date had been scheduled for January 2016.

7. All of these charges related to a particular transaction which was effected on the 30th September 2008 carried out between Anglo

and another credit institution. The prosecution alleged that the effect of the transaction was to create a false and misleading

impression of the scale of deposits held by Anglo at the time, as this date coincided with the end year of their annual results.

8. Following receipt of correspondence from the solicitors for Mr. Bowe (and, as it happens, the solicitors for another defendant, Mr.

Peter Fitzpatrick) to the effect that the publication constituted a contempt of court, the Chief Prosecution Solicitor immediately

wrote protesting that this publication was a contempt of court;

9. The respondents’ solicitors replied about an hour and a half later. The replying letter denied that anything in the articles or on the

accompanying website interfered with the accused’s right to a fair trial. It was observed that nothing in the Chief Prosecution

Solicitor’s letter had specified what aspects of the material had amounted to an interference with the accused’s right to a fair trial.

The solicitors inquired whether it was to be suggested that no articles whatever concerning Anglo was to be published while criminal

prosecutions were pending.

10. As it happens, the DPP had applied to the High Court later that day for short service of the Ord. 44 contempt motion and the

respondents were informed that such liberty had been granted. The DPP then set out her position. She did not demand that no

articles about Anglo be published: it was rather the nature of this particular publication to which she objected.

11. It is next necessary to say something about the respondents to this application. The first respondent is the parent company of

the publisher of The Irish Independent. The second respondent, Ms. Claire Grady, was the then editor of the newspaper. She has,

however, since left that position and no further order has been sought against her. The third respondent is the editor in chief of the

newspaper. The fourth respondent is a wholly owned subsidiary of the first respondent. This company owns and operates The Irish

Independent website.

The judgment of the High Court

12. In a judgment delivered on the 24th April 2015 O’Malley J. found that the respondents were guilty of contempt of court. (Only a

redacted version of the judgment was made publicly available at the time given the fact that the trials were pending, but this Court

has been supplied with the full version).

13. In essence O’Malley J. found that the publications amounted to a contempt of court because they associated Mr. Bowe with

dishonest and deceitful behaviour similar to the offences with which he had been charged:

“….I find the compelling feature to be the fact that Mr. John Bowe stands charged with offences of dishonesty and

conspiracy arising from his employment as an executive in Anglo Irish. On dates after the bringing of those charges he

was featured prominently in a series of articles and videos, a recurring theme of which is dishonesty, cover-up and

deceitfulness amongst the executive in Anglo Irish.”

14. Following the delivery of that judgment, O’Malley J. heard submissions as to sentence. On 9th June 2015 the judge imposed a fine

of €50,000 on each of the corporate defendants and imposed a purely nominal fine of €100 upon Mr. Rae. These penalties were

stayed pending an appeal this Court. The respondents have now appealed to this Court against both conviction and penalties.

The submissions of the parties

15. The applicant’s case is that the publications in question had the potential to prejudice the fair trial of the accused, in particular

by portraying Mr. Bowe in an unflattering light and by associating him so directly with what many would regard as the objectionable

culture of by a now disgraced bank, it was contended that this was capable of having a direct bearing on the crimes of dishonesty

and conspiracy with which he had been by then charged. The publication(s) in question therefore amounted to a contempt of court.

The intentions of the respondents were irrelevant in this regard. Nor did it matter that the publication did not, in fact, interfere with

the capacity of the criminal justice system to ensure a fair trial.

16. The essence of the respondents’ defence is that the articles in question constitute protected speech for the purposes of Article

40.6.1 of the Constitution, namely, the right of citizens “subject to public order and morality”, to express “freely their convictions and

opinion.” They also point to the fact this same Article acknowledges the special role of the media in the education of the public

opinion and that it seeks to ensure that the rightful liberty of expression of the media (including criticism of Government policy) is

maintained. The respondents say that their publication did just that by informing the public of matters of considerable public

importance and, in essence, criticised Government policy (in the broadest sense of this term) by exposing what it claimed was

unethical conduct within a regulated bank operating under licence and subject to the strictures of the banking supervision established

by the Oireachtas and the Government.

17. The respondents disclaimed any intention to prejudice any pending trial and contended that, not least by reason of the welter of

adverse publicity which the actions of Anglo and its executives had already generated, there was nothing in these publications which

could realistically be said to prejudice a fair trial.

Pre-trial adverse publicity and contempt of court

18. As many have previously observed, the use of the phrase “contempt of court” is something of a misnomer. In this context, at

least, it has nothing to do with judges being offended by media comment or from some exaggerated sense of judicial lése majesté.

Contempt of court it is rather entirely concerned with ensuring that the fairness in the administration of criminal justice will not be

compromised. As Hardiman J. put it in Director of Public Prosecutions v. Independent Newspapers (Ireland) Ltd. [2009] IESC 20,

[2009] 3 I.R. 598, 601:

“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.”

19. Second, it is also clear that the fact that the trial can nonetheless fairly and safely proceed, the offending comment

notwithstanding, is, as such, irrelevant to the question of whether there has been a contempt of court. In particular, the fact that a

particular publication tends to fade from public memory cannot, in itself, take from the fact that the offending publication can

constitute a contempt of court. As Hardiman J. said in Independent Newspapers ([2009] 3 I.R. 549, 601):

“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 done 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.”

20. The leading authority in this jurisdiction remains that of Kelly v. O’Neill [199] IESC 81, [2000] 1 I.R. 354. In that case the

applicant in the contempt proceedings was an accused who had been convicted of drugs offences following a trial with a jury in the

Circuit Court. Between the date of his conviction and his sentence The Irish Times published an article under the headline “Gardaí

believe Kelly was involved in other major crimes.” The article also gave details of claims from “Garda sources” which had not been

disclosed in the course of the criminal trial. These included allegations that he had been personally involved in violent crime and that

he “mixes with a group of criminals which has been involved in a range of illicit activities, including fraud and kidnapping.”

21. The trial judge imposed a fine of IR£5,000 for contempt of court. This newspaper appealed this fine to the High Court which, in

turn, stated a case for the opinion of the Supreme Court.

22. The Supreme Court stressed that the contempt jurisdiction did not cease simply because the publication was only published after

the jury verdict. The ratio of the judgment is captured by the following pithy head note in The Irish Reports:

“…..freedom of expression was not an absolute right and the temporary nature of the limitation in cases of sub judice

contempt was not a disproportionate restriction when weighed against the damage which could be done to the

administration of justice from unrestricted comment. The contempt jurisdiction could not be lightly invoked by the courts

as the right to freedom of expression should only be curtailed to the extent necessary to protect the administration of

justice.”

23. As Keane J. observed ([2000] 1 I.R. 354, 374):

“the contempt of court jurisdiction should not be lightly invoked by the courts: the freedom of expression guaranteed by

the Constitution should not be curtailed save to the extent necessitated in protecting the administration of justice.”

(emphasis supplied)

24. Given that the Supreme Court was answering a case stated, the Court confined itself to answering affirmatively the questions

posed as to whether the article was capable of being regarded as a contempt of court with the Court saying that, in the words of

Denham J., it was for the trial judge ([2000] 1 I.R. 354, 370) to decide “taking into account all the circumstances (some of which may

not yet have been established), whether there has been a contempt of court.”

25. In his judgment Keane J. explained the range of factors which the trial judge might wish to take into account ([2000] 1 I.R. 354,

379-380):

“…I have no doubt that [an article] which simply summarised the facts of the case as they had been presented to the

jury could not be regarded as calculated to interfere with the administration of justice and one would have little difficulty

in reaching the same conclusion where the article also included background material of an innocuous nature concerning

the accused. Different considerations, as I have already suggested, might apply to an article which urged a court in

strident and intemperate terms to adopt a particular approach in sentencing the convicted person.

The publication with which we are concerned falls into neither category. It does not urge the imposition of any particular

sentence. But it does go considerably further than simply recounting the facts adduced in evidence at the trial and adding

innocuous background material concerning the accused. It puts into the public domain allegations derived from “Garda

sources” concerning the applicant which it is not suggested were adduced in evidence at the trial or would be admissible

in evidence at the sentencing hearing and which, if any regard were had to them, could only be seriously damaging to

him.

There are other features of the article which would have to be taken into account if the conclusion were reached that it

was calculated to interfere with the administration of justice. First, the circumstances of the case, particularly the

applicant’s previous criminal record, indicated that the likelihood of the publication being seen to influence the sentence,

let alone actually influence it, was clearly of a low order. Secondly, no notice to cross-examine the second named

respondent on his affidavit appears to have been served and, if that remained the position, the trial judge would be

entitled to conclude that the article had been published in good faith on a matter of public interest without any intention

of influencing the court. That in turn would raise the question as to whether the offence of criminal contempt had been

committed at all, given the absence of any guilty mind or mens rea on the part of the respondents. (The respondents

could also, of course, point to the uncertainty reflected by this litigation as to whether press comment after the verdict

but before the sentence was imposed was in contravention of the sub judice rule.) While undoubtedly the generally

accepted view of the law has hitherto been that the offence is absolute in its nature and does not require the

establishment of mens rea one certainly could not exclude the possibility that, in the absence of any modem Irish

authority, the courts in this country might have come to the conclusion that mens rea was a necessary ingredient of the

offence. On any view, the circumstances of this case would clearly have called for the imposition of no more than a

modest penalty and, for the reason I have suggested, the respondents might have been found innocent of any contempt.

The questions the court has been asked in this case are not, however, whether, in the light of the circumstances to

which I have referred, the High Court would have been entitled to acquit the respondents of the charge of criminal

contempt or whether the factors to which I have referred could be taken into account by the court in imposing a penalty.

The first question this court has been asked is, in effect, whether the respondents must be acquitted of the charge of

criminal contempt solely by reason of the fact that the jury had completed their consideration of the case. If the answer

to that question is yes”, the same conclusion would follow no matter how intemperate the terms of the article were. It

would equally follow that no contempt had been committed in a case where the article contained the grossest falsehoods

about the convicted person which were deliberately published with a view to influencing the sentence. It would even be

the result if the publication were part of what was described in R. v. Duffy & Ors. Ex Parte Nash as a “deliberate

campaign” to influence the court and contained material, not merely false, but known to be false. Such conduct would

attract no form of criminal sanction. The only redress the law would afford would be a civil action for defamation at the

instance of the convicted person which, in the circumstances, would hardly be regarded as a particularly effectual remedy

or, indeed, any form of remedy.”

26. Judged by these comments, it is probably fair to say that the Supreme Court considered that the publication in question was a

marginal case, although both Denham J. and Keane J. made it clear that it had been open to the trial judge in that case to find that

there had been a contempt once the matter.

Application of the principles in Kelly v. O’Neill to the present case

27. If, therefore, one endeavours to apply the principles in Kelly v. O’Neill to the present case, the fundamental question confronting

the Court is whether there was a real risk that the publication(s) in question would prejudice the trial of Mr. Bowe. If there was no

such real risk then it is clear that the publications in question must be regarded as protected speech for the purposes of Article

40.6.1 and that there was no contempt.

28. Admittedly, we have not, I think, the same respect for the constitutional protection of free speech which has been one of the

great glories of the U.S. constitutional tradition since the days of Holmes and Brandeis. It is also true that, as the Supreme Court has

recently explained, Article 40.6.1 of the Constitution does not protect “calumny and detraction”: see McDonagh v. Sunday

Newspapers Ltd. [2017] IESC 46, [2017] 2 I.L.R.M. 217, 233 per Charleton J. (This statement was, I think, fundamentally a

metaphorical way of saying that the right of free speech is not and could not be regarded as absolute). But the right freely to speak

one’s mind and to comment on the public affairs of the day is essential to the rule of law and to the democratic nature of the State

envisaged by Article 5 of the Constitution.

29. Looking even beyond the language of Article 5 and Article 40.6.1, the entire system of government created by the Constitution –

ranging from the electoral system to the referendum process – presupposes that, as I put the matter in my judgment in the High

Court in Doherty v. Referendum Commission [2012] IEHC 211, [2012] 2 I.R. 594, 694, this is reflected “by urging the citizenry to

engage in robust political debate so that the forces of deliberation will prevail over the arbitrary and irrational so that, in this civic

democracy, reasoned argument would prevail in this triumph of discourse.”

30. What, therefore, is not in dispute is the very high value which Article 40.6.1 places on newspaper articles and commentary of this

kind. Information concerning the pre-crash activities of Anglo and its senior bank officials is part of the education of public opinion

envisaged by Article 40.6.1. The associated commentary can be said to be part of the criticism of Government policy in the broadest

sense of that term, since the entire thrust of these articles was the criticism of what the writers perceived as the unacceptable

nature of banking practices, itself said to be a product of a lax regulatory environment.

31. Returning now to the fundamental question: did the publications in question pose a real risk to the fairness of the pending trial?

One can usefully compare and contrast the facts of Kelly v. O’Neill with the facts of the present case, with particular reference to

both timing, the contents of the publication and context.

32. It is true that in contrast to Kelly, the publication here was just after the accused had been charged, so that the possibility of

influencing a jury trial was still real. This was in contrast to the position in Kelly where the jury verdict had just been delivered. But,

critically, the trial in the present case was still some eighteen months away at the date of the publication in question. As Denham J.

acknowledged in Kelly, the timing of any publication in this context is of “great importance”, with the time “immediately prior to the

jury trial is very sensitive”: see [2000] 1 I.R. 354, 368. This publication was therefore well distant from any immediate jury trial. This,

of course, does not mean that no contempt of court was possible, but this issue it rather goes to making an overall assessment of

the risk to the integrity of the trials by reason of The Irish Independent articles.

33. So far as the contents of the publication is concerned, it is clear that the publication at issue in Kelly did not shirk from publishing

allegations of grave criminal behaviour such as violent crime, drugs importation on a large scale, fraud and kidnapping. That cannot be

said in the present case, because there are no direct allegations of criminal conduct on the part of either Mr. Bowe or, for that

matter, Mr. Drumm. Of course, as I have already indicated, the accompanying commentary was far from flattering and it cannot be

said that the transcripts which formed the background to the articles portrayed either man in a positive light.

34. The worst that might, however, have been said about either Mr. Bowe or Mr. Drumm based on the publications in question is that

they contemplated a private plan which, if implemented, would have created a false market in Anglo bonds by arranging for the buy-

back of such a bonds by its private clients section. This would have given the impression that private investors were buying Anglo

bonds (and, by extension, that these investors had faith in the ultimate solvency of Anglo) when in truth Anglo was the private buyer

of its own bonds and had simply arranged for its own wealth management division to place the trading order(s) as a market decoy

mechanism. Such conduct might well come within the definition of “market manipulation” in Article 2 of the Market Abuse (Directive

2003/6/EC) Regulations 2005 (S.I. No. 342 of 2005)(“the 2005 Regulations”), as this definition includes an order to trade which gave

or was likely to give “false or misleading signals as to the supply of, or demand for or price of financial instruments”, unless it is also

established that the trading conformed to accepted market practices on the regulated market concerned. Article 49(3) of the 2005

Regulations provides that such conduct is an offence punishable by either a €5,000 fine or a maximum 12 month term of imprisonment

or both. (The 2005 Regulations represented the relevant law regarding market abuse then in force at the time).

35. It must, however, be observed that the publications in question did not, as such, allude to the fact that such conduct was

potentially criminal and the existence of such a regulatory offence of market manipulation under the 2005 Regulations was (and is)

probably unknown to the general readership of the newspaper save, perhaps, to a number of specialist legal practitioners and other

market specialists. The conduct was, accordingly, not presented as criminal as such, but rather as unethical. Here again, however,

there is rather a wide gulf between what was published in Kelly and what was published in the present case.

36. The context of the two publications is also quite different. The publication in Kelly concerned an individual who was admittedly

involved in a form of organised crime in Dublin. He was, nonetheless, for the most part an anonymous figure unknown to the general

public. The offending article was published in the short interval between the date of conviction (15th May 1993) and the scheduled

sentencing date (27th May 1993). The Irish Times would accordingly have been quite free to publish these details had it just waited

for a period of about twelve days until sentence had been pronounced. The fact, moreover, that the accused in that case was largely

anonymous and unknown to the wider public meant that the potential risks posed by the publication of highly particular, fact specific

allegations personal to this accused made the risk of a potential contamination of the sentencing process all the greater.

37. By contrast, the fate of Anglo and its executives had dominated the news agenda since late September 2008 and had done so in

a ceaseless, unrelenting fashion almost to the point of tedium. It is probably no exaggeration to say that but for Anglo the bank

guarantee would not have been necessary and, in turn, the IMF/ECB/EU bailout in 2010 might well have been avoided. The role of

Anglo has been discussed endlessly discussed in numerous books, articles, television documentaries, radio programmes, opinion pieces

and reams of newspaper articles. Indeed, as the respondents observed, much of what was discussed in these publications had

already long since entered the public domain.

38. Against this particular background, The Irish Independent’s journalistic coup in publishing the transcripts of these tapes in truth

added but little to the welter of commentary which had gone before. I appreciate – and commend – the DPP’s proper concerns for the

integrity of the trial and ensuring that the accused secured a fair trial. But for my part I doubt if any juror would have paid any real

attention to this publication and I consider that the average juror would regard it as just simply another article in a long and

apparently endless line of publications concerning the alleged misconduct of Anglo and its executives.

39. Viewed thus, therefore, it is the surfeit of publications concerning Anglo which take this case into a very different category. Any

jurors hearing the criminal prosecution would, of course, have to be warned to base their decision simply on the evidence which they

heard at the trial. But it seems unrealistic to say that this publication – of all publications concerning Anglo – could have made all the

difference or, for that matter, any difference. It might, of course, have been different had, for example, the publication in question

asserted that Mr. Bowe was guilty as charged or had urged the court to impose a condign sentence in order to make an example of

him. But where I respectfully differ from the trial judge is that I think that the risk of the trial being contaminated by a publication of

this kind in this context is so low that the real risk test cannot be said to be satisfied.

40. A further consideration, to my mind, is that if this publication amounted to contempt it would have had a chilling effect on all

discussion regarding Anglo and its implications of its collapse for the wider economy and society. It would be hard to say where the

possible boundaries of contempt lay and newspapers and other media might well refrain from discussing these issues for fear of falling

foul of the law of contempt. It is true that in her judgment O’Malley J. concluded that it would be:

“..... both wrong and futile for the courts to attempt to impose a general limitation on such discussion by reference to the

ongoing investigations, whether civil or criminal, or by reference to standards of sobriety and taste.”

41. Yet it must be recalled that these publications made no reference to any pending criminal trials and nor was there any direct

suggestion of criminal conduct. It revealed no information directly concerned with the offences with which the accused had been

charged and there was no suggestion that the accused were guilty of these offences. If The Irish Independent’s publications

amounted to contempt, the same might also be said with as much justification of almost any publication which was critical of Anglo,

its banking officials and its banking standards. Unlike, moreover, the facts of Kelly v. O’Neill - where the newspaper simply had to hold

off publication for a week or two pending sentence – Mr. Bowe’s trial was not scheduled to start for another eighteen months.

42. Free speech is the lifeblood of democracy and the democratic, rule of law based State envisaged by Article 5 of the Constitution.

While the right to a fair trial must naturally be protected, we cannot live in some sort of antiseptic and sterile society where robust

comment on public affairs is treated like some kind of hostile germ against which the most elaborate anti-bacterial precautions must

be taken. The courts would accordingly be failing in their duty to uphold the substance of the right of free speech in Article 40.6.1 of

the Constitution – not least when viewed through the prism of Article 5 - if they did not protect publications of this kind, save where

a restriction of this right was objectively necessary in the interests of securing a fair trial. For all the reasons set out in this judgment

I do not consider that any such real risk to the integrity of Mr. Bowe’s trial was presented by The Irish Independent’s articles and the

associated commentary.

Conclusions

43. In all the circumstances, therefore, I am of the view that both the content and context of this publication took this particular

case well outside the parameters of Kelly v. O’Neill. Given that these publications were in reality just another in a long line of

publications which were highly critical of Anglo, its officials and its banking culture, I cannot say that it presented any real risk to the

fairness and integrity of the trial of Mr. Bowe which was then pending. In these circumstances, and absent any such risk, the

publication of this material was constitutionally protected by the guarantees of Article 40.6.1 of the Constitution.

44. Although I differ only with hesitation from the views just expressed by my colleagues, it follows, nonetheless, that for the reasons

stated, I would allow the appeal.