Court of Appeal dismisses appeal against contempt convictions for publishing prejudicial material about a pending criminal trial.

T HE COURT OF APPEAL

Neutral Citation Number: [2017] 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 John Edwards delivered the 20th of December 2017

1. For the avoidance of confusion, I will adopt the convention in this judgment of referring to the applicant/respondent simply as “the

DPP”, and to the respondents/appellants simply as “the appellants”.

2. This is an appeal against the judgment and orders of O’Malley J in the High Court dated the 24th of April 2015 finding the first, third

and fourth named appellants, and each of them, guilty of contempt of court in publishing material in the issue of the Irish Independent

newspaper of the 17th of July 2014 under the heading “ANGLO THE NEW TAPES REVEALED” that was calculated to create a real risk

of an unfair trial in the case of Mr John Bowe who was charged with conspiracy to defraud contrary to common law, and with making

gain or causing loss by deception contrary to s.10 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (the Act of 2001), and

who had been returned for trial on indictment before the Circuit Criminal Court, which trial was scheduled to commence in January of

2016.

3. The appeal also extends to a concurrent injunction issued by O’Malley J on the 24th of April 2015 restraining the first, third and

fourth named appellants from publishing further material calculated to interfere with the criminal trial processes in being in respect of

Anglo Irish Bank and in particular restraining them “from publishing further extracts from the ‘Anglo tapes’ which refer to or involve any

persons’ subject to such criminal processes”.

4. It is further an appeal against the judgment and order of O’Malley J dated the 9th of June 2015 sentencing the first and fourth

named appellants respectively to each pay within thirty days a fine in the sum of €50,000, with distress in the event of default; and

further sentencing the third named appellant to pay within thirty days a fine of €200, with two days’ imprisonment in default; in

respect of their said contempt of court.

5. In this judgment I propose only to deal in the first instance with the appeal against the conviction for contempt, and to leave over

for further consideration, should it be necessary to do so, the appeal against sentence and the appeal against the grant of injunctive

relief.

6. The facts of the case are fully set out in the judgment of the High Court of the 24th of April 2015, and reprised in the judgment

just delivered by Hogan J. Accordingly, I do not consider it necessary to repeat them.

7. I was afforded the opportunity of reading in draft the judgment just delivered by Hogan J While there is much in his judgment with

which I agree, and in particular that Kelly v O’Neill [2000] 1 I.R. 354 represents the leading authority, I must respectfully dissent with

respect to his ultimate conclusion that the material in controversy published on the 17th of July 2014 did not present any real risk to

the fairness and integrity of the trial of Mr Bowe that was then pending. I am ad idem with Hogan J that if that were indeed the case

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

not the case in my view, for reasons I will elaborate upon later in this judgment.

8. The High Court judge was faced with conflicting claims, namely the DPP’s assertion that the court’s intervention was required, both

by way of a finding of contempt and restraint of further publication by injunction, to defend and vindicate Mr Bowe’s right, guaranteed

in Article 38.1 of the Constitution, to be tried in due course of law, one the one hand; and the appellants’ claim that the court should

uphold their right to freedom of expression guaranteed in Article 40.6.1 of the Constitution, and not intervene in the manner sought

by the DPP, on the other hand. In a situation where she was satisfied, and I believe correctly satisfied, that the publications

complained of were calculated to interfere with the course of justice by creating a real risk of an unfair trial that could not be

adequately ameliorated by other measures, she was justified in the circumstances of the case in taking the action that she did.

9. In arriving at her view the trial judge had regard to Kelly v O’Neill and indeed was influenced by certain passages from the judgment

of Denham J in that case (at pp.369/370 of the report), which she cited. Denham J had said:

“The jurisprudence of recent years in relation to trials and publicity has been noted: D. v. Director of Public Prosecutions

[1994] 2 I.R. 465; Z. v. Director of Public Prosecutions [1994] 2 I.R. 476. Jurors are robust. The test for a court in such

a situation is whether there is a real risk that an accused would not receive a fair trial.

The community is not in quite the same position as jurors in that it has not the benefit of a judge's direction. However,

in a modern society the media is part of everyday life.

Media reporting of events in society, including court cases, has increased in this, the "information age." Coverage varies

from national broadsheets, tabloids, television and radio to similar publications from organisations which sweep the

globe. And then there is the internet! People are exposed to national and international media. Such coverage should be a

fair balance between protecting the administration of justice and the right of freedom of expression. If there is a doubt

the balance should be tipped in favour of the administration of justice, of a fair trial.

The common law offence of contempt of court is largely judge-made. It is to protect the administration of justice for

the individual and the community. A balance is sought to support the requirement of a constitutional democratic society

wherein there is the rule of law and trials are conducted in court. Such a balance does not preclude criticism of a

decision, including sentence, after sentencing. Nor does it preclude such comment after sentence even though there

may be an appeal. A key factor is the proximity of the court process.”

….

“Freedom of expression is not an absolute right under the Constitution, however it is a fundamental right of great

importance in a democratic society. In striking a balance between that right of the freedom of expression and the

administration of justice if there is a real risk of an unfair trial the balance should tip in favour of the administration of

justice and the determination of a contempt of court. Also, if there is a doubt the balance should swing behind the

protection of the administration of justice. However, if the matter of the perception of the administration of justice is

the issue the situation is fraught with complexity.

The decision as to whether the article was a contempt of court can only be made by the learned trial judge having

regard to all the circumstances of the case. The balancing of interests required may be affected by matters including

the burden of proof, mens rea and specific defences which were not argued before this court. Such issues may be

important in the necessary reconciliation of the conflicting interests required by the trial judge. The full circumstances

and defences should be raised before the learned trial judge to enable him to achieve the necessary balance.”

10. In the present case the High Court judge was not concerned with the perception of the administration of justice but rather with

an alleged real risk of an unfair trial, which she found to exist, on the evidence before her.

11. To give better context to Denham J’s remarks it should be noted that Kelly v O’Neill was a consultative case stated from the High

Court to the Supreme Court and the circumstances were that the impugned publication, which was a newspaper article bearing the

headline “Gardaí believe Kelly was involved in other major crimes”, was published in the interval between the conviction of the

accused (Mr Kelly) and his sentencing. It had posed two questions, which were in the following terms:

"(a) Can it be a contempt of court to publish an article in the terms of that complained of after a criminal trial has passed

from the seisin of the jury and where the remainder of the hearing will take place before a judge sitting alone?

(b) Given the constitutional right to freedom of expression of the press, could the publication of the article complained of

ever constitute a contempt of court when published after conviction and before sentence?"

12. Denham J, having considered both questions, remarked:

“A decision on the issues relating to an alleged contempt of court should not be taken in isolation. A decision on an

alleged contempt of court must balance a variety of rights. The first question could not be answered without reference

to the constitutional right referred to in the second question. Any answer to the first question would be inconclusive if

made without balancing the right to freedom of expression raised in the second question. Ultimately, the issue requires a

balance between the due administration of justice and freedom of expression.”

13. As was recently emphasised by the Supreme Court in Gilchrist v Sunday Newspapers Limited and Ors [2017] IESC 18 there is no

hierarchy of constitutional rights. Though it had previously been suggested in earlier cases, including by Denham J in Irish Times v

Ireland [1998] 1 I.R. 359, that where more than one constitutional right was engaged, an accused’s right to a fair trial might be

regarded as being superior to other rights in the balance, O’Donnell J, giving the judgment in Gilchrist on behalf of a unanimous five

judge Supreme Court bench (which included Denham C.J., as she now was), suggested that the better view was that:

“the Constitution should not be too readily interpreted to require any hierarchical ranking of rights with the consequent

possibility of subordination of one right to another. The Constitution was intended to function harmoniously, and where

there were points of potential conflict between the rights and obligations provided for, that should be sought to be

resolved without the subordination or nullification of one provision”

14. O’Donnell J further expressed reservations in Gilchrist about “the language of balancing of rights”, implicitly on the basis that it

requires the attribution of a weighting to competing rights and relevant circumstances, in an almost arithmetic or empirical exercise,

with a view to seeing if the notional scales are tipped in one direction or the other. He appears to be of the view that issues around

competing rights cannot properly be resolved in that way. Though he does not articulate it in exactly these terms, I understand him

to be advocating the taking into account of all potentially relevant values, interests and material considerations in a kind of instinctive

synthesis (to borrow a phrase from the law of sentencing) and finding the right course of action on the basis of strengthened

awareness.

15. Returning to the judgment of O’Malley J, she further noted that Keane J had observed in Kelly v O’Neill:

“The courts have always considered themselves empowered to treat as contempt of court breaches of the sub judice

principle in the case of criminal jury trials. This court has pointed out on a number of occasions in recent times that the

courts should not underestimate the capacity of the modern jury to approach its deliberations in a properly impartial

manner and to ignore press comment, however unbalanced and even hysterical. But the power to punish such a

contempt remains, because of the clear danger that such comment might be seen as being capable of influencing the

jury's verdict, not least by the person who is on trial. It is, in short, a common law machinery, essential in the absence

of any appropriate legislation, designed to protect the constitutional right of the accused person to a trial in due course

of law guaranteed by Article 38.1 of the Constitution.”

16. Earlier in the same judgment Keane J had also stated with reference to the contempt of court jurisdiction more generally (at pp.

374/375 of the report):

“Contempt of court is committed, however, when a person publishes material which is calculated to interfere with the

course of justice: it is not a necessary ingredient of the offence that it results in such an interference. If an article

containing material of this nature had been published during the trial but before the jury had recorded their verdict the

trial judge might or might not have acceded to an application that the jury should be discharged. If the article had been

published before the trial but at a stage when the applicant had been charged with the relevant offences, the court

might have declined to prohibit the continuance of the criminal proceedings if it were satisfied that any risk that the

accused might not receive a fair trial could be avoided by giving appropriate directions to the jury to exclude from their

consideration any material they might have read concerning the case. But the fact that a trial was allowed to proceed

on the basis that the jury, if they read the offending article, would be capable of excluding it from their minds would not

of itself be a ground for treating the article other than as a contempt of court.

The law adopts this approach because to do otherwise would be to put at risk the public confidence in the administration

of justice which it is the very purpose of the contempt of court doctrine to preserve. If the press, television or radio or

any one else were free to publish such material with impunity and availed of that freedom in an irresponsible manner,

many persons facing criminal charges might well consider that their prospects of a fair trial by an impartial jury had

been seriously damaged. But that is not the only relevant consideration. As has been frequently pointed out, the right to

a fair trial in due course of law guaranteed under the Constitution is not simply a right vested in those who happen to be

accused of particular crimes: it is in the interest of the community as a whole that the right should be protected and

vindicated by the State and its organs.”

17. These views mirror in substance the views of Hardiman J in Director of Public Prosecutions v Independent Newspapers (Ireland)

Ltd [2009] 3 I.R. 598 as expressed in the passages from his judgment in that case which were quoted by Hogan J at paragraph 18 of

his judgment in the present case.

The risk of an unfair trial

18. The High Court judge, having considered the affidavit evidence, and the exhibits thereto, including in particular a copy of the

impugned publication, concluded (at paras 74 and 75 of her judgment) that:

“74. In the instant case, 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 executives in Anglo Irish.

75. I do not consider the fact that the concentration of the writers is largely on Mr Drumm to be particularly relevant in

these circumstances, especially given the conspiracy charge. An advocate for Mr Bowe might well make the case that

he is to be seen as playing a subordinate role, but that is more likely to be a matter for mitigation than guilt or

innocence. In any event this line of argument merely serves to underscore the fact that the articles could just as well

have been published without naming Mr Bowe.”

19. She went on to say (at paras 76 and 77):

“76. The fact that the conversations reported upon took place months before the transaction is also of no great

moment given that the conspiracy is alleged to have commenced from as early as March, 2008.

77. In my view, the publication of other material, relevant to the same events, by other authors cannot assist the

respondents. I am not in a position to endorse the view of the applicant [the DPP] that these were “niche” publications

in comparison with the respondents’ [the appellants] newspaper, since there is no evidence before the court as to what

the cumulative sales of the books were. However, the date of publication is obviously a key factor. There could be no

contempt before charges were brought. The bringing of the charges could not, clearly, render criminal a publication that

was lawful when carried out. I am not convinced that the copyright analogy in relation to continued sale is necessarily

appropriate in this context.” [additions in square brackets are by Edwards J.]

20. The High Court judge further concluded (at para 79):

“In the circumstances I find that the respondents [the appellants] have committed the contempt charged. On a date

after Mr Bowe was charged, they set out to associate him with aspects of the so-called ‘Anglo morality’ in a way that

was capable of having a direct bearing on the crimes of dishonesty and conspiracy with which he is charged.” [additions

in square brackets are by Edwards J.]

21. The appellants have contended that the High Court (a) was incorrect in coming to the view that the ingredients of contempt

were made out; and (b) fell into error in failing to give due weight to the fact that the publication did not relate to the matters the

subject of the criminal charge, that a suitable charge to the jury would have prevented any potential prejudice, and that the DPP

clearly felt that other publications on sale throughout the prosecution did not constitute a contempt (notwithstanding the fact that

they covered exactly the same ground as the criminal prosecution). I have to respectfully disagree with both of these submissions.

Were the ingredients of the offence of contempt by publication made out?

22. Counsel for the appellants stated in arguendo that his clients were not advancing a case that specific or indeed general mens rea

is required to establish the species of contempt that we are concerned with here, namely criminal contempt by publication at common

law. In my view he was correct in adopting that stance as there is long standing authority that strict liability applied to that, and

certain other forms, of common law contempt (See St James’s Evening Post (1742) 2 Atk 469, 26 E.R. 642 discussed in Arlidge, Eady

& Smith on Contempt (2nd ed, 1999) at §1-62 to §1-67 and again at §5-134). In the St James’ Evening Post case which concerned

the publication of a libel on certain executors and a testator’s widow concerned in pending proceedings, Lord Hardwick LC had no

doubt that the publication was libellous, but agreed with the Solicitor General that the court itself could do nothing about the matter

unless it was also a contempt, in which case it would become possible to invoke its inherent jurisdiction. The court concluded that

the libellous publication was also a contempt and Lord Hardwick held that it was no defence that a person publishing matter

calculated to prejudice the fair trial of a pending cause had no knowledge of the contents of the publication, stating:

“… though it is true, this is a trade, yet they must take care to do it with prudence and caution: for if they print

anything that is libellous, it is no excuse, to say, the printer had no knowledge of the contents and was ignorant of its

being libellous: and so is the rule at law, and I will always adhere to the strict rules of law in these cases.”

23. As regards the actus reus of the offence, it is sufficient to prove publication of material that is “calculated”, in the sense of

tending to create a real risk of an unfair trial. “Calculated” at common law generally meant no more than “tending” or “likely to”: that

is to say the act or omission complained of had to create a real risk of prejudice, but not necessarily of serious prejudice. See Arlidge,

Eady & Smith on Contempt (2nd ed, 1999) at para 5-7, and also Attorney General v Times Newspapers Ltd [1974] A.C. 273.

24. In considering whether the publication in the present case was calculated to create a real risk of an unfair trial, the High Court

Judge was obliged to take all relevant circumstances into account including, and perhaps especially, those commended by Denham J

in her judgment in Kelly v O’Neill which, it may be recalled, included “the burden of proof, mens rea, and specific defences [that might

potentially arise]” in the pending trial about which there was a concern.

25. Intrinsic to both charges preferred against Mr Bowe was the necessity for the prosecution to establish beyond reasonable doubt

that the accused had acted “dishonestly”. Moreover, the particulars of both offences as charged variously alleged that the accused

had “conspired to defraud”, that he created “a false and misleading impression”, that he had “furnish[ed] to the market information”

that was “misleading, false or deceptive”.

26. Moreover, the mens rea of the common law offence of conspiracy to defraud, which coincidentally is discussed at length (from

paragraphs 146 to 176 inclusive) in the judgment of this court, delivered by Ryan P, in Director of Public Prosecutions v Bowe & Casey

[2017] IECA 250, requires proof of the intentional performance of the impugned act, or intentional participation in the impugned

scheme, where that act or that participation would attract the value judgment, judged by the standards of ordinary men, that it was

“dishonest”. In that regard we stated in Bowe & Casey that:

“174. We are satisfied that the trial judge did not fall into error in the manner in which he approached his charge to the

jury on the issue of the mens rea for the common law offence of conspiracy to defraud. All of the jurisprudence relating

specifically to this offence seems to us to indicate that it is sufficient for a conviction that the prosecution should prove

merely that the accused intended to do the impugned act or to participate in the impugned scheme in circumstances

where the relevant act or scheme would attract the value judgment, judged by the standards of ordinary reasonable

men, that it was dishonest. Accordingly, we are not disposed to uphold the first named appellant’s ground of appeal No

16. 175. The Court readily understands why it would have suited the defence case if the trial judge could have been

persuaded to adopt the Ghosh approach. However, the trial judge would have had no legitimate basis for doing so. The

Theft Act 1968 is not law in this country. In the context of conspiracy to defraud the concept of “dishonesty” provides

no more than a modern analogue for the language of older case law which referred to conduct which was “wrongful and

fraudulent.” While the natural and ordinary meaning of “dishonesty” may indeed sometimes import both a state of mind

and a value judgment as to conduct, the offence of conspiracy to defraud is long standing and has never been

understood as incorporating a specific mens rea of subjective dishonest intent as opposed to a general mens rea

requiring intentional participation in whatever act or scheme is said to constitute the conspiracy in circumstances where

that act or scheme would be regarded, objectively, as being dishonest. It is the conduct which must be dishonest. The

motivation of the relevant actor is irrelevant to liability. Accordingly, “by dishonesty” has never been regarded in the

context of the offence under consideration as referring to an individual’s state of mind, but rather as referring to an

objective characterization of, or value judgment with respect to, the impugned conduct.”

27. “Dishonestly” for the purposes of the Act of 2001 has the meaning set out in s.2 of that Act, namely “without a claim of right

made in good faith”. This Court concluded in its judgment in DPP v Bowe and Casey that this accords with the former common law

meaning of the term and represented no material change.

28. In Mr Bowe’s then pending trial it was therefore going to be for the jury, and the jury alone, to evaluate Mr Bowe’s impugned

conduct as an executive of Anglo Irish Bank during the period covered by the indictment and to reach a value judgment on whether

he had acted “dishonestly”. The specific conduct impugned was that he had created a false and misleading impression that deposits

from a non-bank entity to Anglo Irish bank during the year ended 30 September 2008 were approximately €7.2 billion larger in amount

than they really were, thereby influencing financial decisions by interested parties such as other existing and prospective depositors

and investors.

29. The material published on the 17th of July 2014, at a time when Mr Bowe was charged, and was known by the appellants to have

been charged, for the most part (with one possible exception identified later on in this judgment) did not deal with the specific

conduct the subject matter of the charges against Mr Bowe. However, far from reporting the contents of the latest tranch of Anglo

tapes in a matter of fact fashion, which could have been done without objection, commentary was offered which arguably impugned

Mr Bowe’s general morality and ethics in matters of corporate governance in his area of responsibility, impugned his ethical standards

with respect to the conduct of trading in bonds, and suggested an ostensible willingness on his part to be complicit in the dishonest

concealment of critical information from the board of Anglo Irish Bank. The publication of such material in the national newspaper

enjoying the widest circulation in Ireland, and on its associated website, represented in effect the judgment of the appellants,

commended to its readers, that executives of Anglo Irish Bank, including Mr Bowe who was singled out as having been complicit with

Mr Drumm (whose “braggadocio” as revealed on the tapes was proffered as being illustrative), were persons without a functioning

moral compass, with low ethical standards and who were in effect dishonest.

30. For example, on a two page spread on pages 4 and 5 of the issue of the Irish Independent of the 17th of July 2014, a “Comment”

piece under the by-line of Fionnán Sheahan bears the substantial headline “Latest glimpse behind scenes of bust bank will make blood

boil”. The actual commentary contains, inter alia, the following:

“Drumm, the Anglo Chief Executive, and John Bowe, Anglo’s head of capital markets, discuss the prospect of discreetly

burning their own bondholders by buying back their own paper at a substantially discounted price and a major loss to the

creditors.

Drumm dismisses Bowe’s suggestions of a question of morality around the bank buying back its own bonds, a practice

which would not have been undertaken by a healthy bank.

He quickly gets over that by admitting the bank can make €200m profit by quietly buying back €500m worth of bonds.

‘It’s the morality of well we’re not going to do it because it would be wrong of us to do it but that’s the price, that’s the

offer price. So if they’re offering it they havn’t qualified: “Well we’ll fing sell it to anybody but the issue”. You know,

you can get lost in that,’ he says.

And that’s morality for you, Anglo style”.

31. The further commentary is offered, that:

“Again this time around prepare to be angered.

The flippant manner in which the fate of the bank is treated and the braggadocio displayed by the bank’s top executives

makes the blood boil.”

32. Then in a central panel on the same two page spread a segment of the actual transcript of the conversation between Mr Drumm

and Mr Bowe is reproduced, accompanied by prominent photographs of both Mr Drumm and Mr Bowe, respectively, and the Anglo Irish

Bank logo, to the right of it. It is headed “Transcript: ‘Morality’” with the subheading “David Drumm and John Bowe discuss the

morality of burning own bondholders”. There follows a one sentence quotation, purportedly from David Drumm, who is alleged to have

said in the course of his conversation with John Bowe that “I don’t know what the fing morality is”. There then follows, ever

before the actual transcript is reproduced, the writer’s commentary on what is to follow, namely:

“Anglo Irish Bank was weighing up quietly buying back its own bonds at the start of 2008. The bank’s financial situation is

so precarious that the value of its bonds is falling. Anglo spots an opportunity to buy back the bonds and make a profit.

But this is effectively the bank burning its own bondholders as they will not be getting back the amount they invested.

Anglo Chief Executive David Drumm and Head of Capital Markets John Bowe are discussing the pros and cons of the idea

and the ‘morality’…”

33. The extract from the transcript is then re-produced, but again is accompanied by “Notes” in the centre of the spread offering yet

further commentary or interpretation on behalf of the appellants of what is being said on each side of the conversation.

34. Then to the right of this is a further panel headed “Five things we learned first time around” with subheadings entitled “1. There

are tapes”, “2. Executives plotted to mislead authorities”, “3 Contempt for authorities”,“4. Attitudes were not changed after the

Bank Guarantee” and “5. The looming disaster”. These would be objectionable on their own as tarring all executives of Anglo Irish

Bank with the same brush and suggesting their complicity in misleading the authorities and of showing contempt for those same

authorities in their dealings with them. However, the text under subheading 2 referred specifically to an alleged conversation by Mr

Bowe with Mr Peter Fitzgerald, another Anglo executive, of which evidence was likely to be given, and was in fact subsequently

given, before the jury as part of the background to the conspiracy to defraud charge preferred against Mr Bowe. Referring to a

recording released earlier, it stated:

“The recording featured John Bowe being asked by colleague Peter Fitzgerald how the bank came up with the figure of

€7bn requested as emergency loans from the Central Bank. CEO David Drumm said he ‘picked it out of my arse’. ‘If they

(Central Bank) saw the enornmity of it up front, they might decide they have a choice. You know what I mean?

‘They might say the cost to the taxpayer is too high … if it doesn’t look too big at the outset … if it looks big, big enough

to be important, but not too bid that it kind of spoils every thing, then, then I think you have a chance. So I think it can

creep up.’”

On any view of it this specifically identifies Mr Bowe as having been one of those executives who, in the words of the subheading,

“plotted (or at least were complicit in a plot) to mislead authorities”

35. The same general layout is to be found on pages 2 to 3 of the same publication. There is a leading article on page 1, under the

by-line of Paul Williams, located under the main headline, and three smaller headlines already alluded to both by the High Court judge

and by Hogan J in his judgment. For the most part this leading article fairly reports the contents of the latest Anglo tapes without

offering gratuitous characterisations of, or judgments on, the morality or ethics of what was being discussed. It then continues over

on to the left hand side of page 2, which together with page 3 represents a double page spread.

36. Once again a central panel on this two page spread contains a segment of the actual transcript of the conversation between Mr

Drumm and Mr Bowe, and again it is accompanied by a prominent photograph of Mr Bowe and the Anglo Irish Bank logo. To the right of

this again are photographs of all of the executive and non-executive directors of Anglo Irish Bank in 2008. The central panel

containing the transcript extract is headed “Transcript: ‘Ladybird version’” with the subheading “David Drumm and John Bowe discuss

how to treat the board”. There follows a one sentence quotation, purportedly from David Drumm, who is alleged to have said in the

course of his conversation with John Bowe that “I’ll give them the ladybird version”. There then follows, ever before the actual

transcript is reproduced, the writer’s commentary on what is to follow, namely:

“Anglo Irish Bank’s board was due to meet in early 2008 to discuss the bank’s worsening financial position. Anglo Chief

Executive David Drumm is due to make a presentation to the directors and is inviting Head of Capital Markets John Bowe

along to also speak to the board. The two men discuss how to co-ordinate their message to the board, with Mr Drumm

mentioning giving the board the “Ladybird version”, a childishly simple version of events, avoiding the full detail …”

37. Once again, the ipsissima verba of the extract from the transcript is set out, but it is again accompanied by “Notes” in the centre

of the spread offering yet further commentary or interpretation on behalf of the appellants of what is being said on each side of the

conversation.

38. I find myself in the circumstances in complete agreement with the High Court judge that the recurring theme in the commentary,

examples of which I have cited, is dishonesty, cover up and deceitfulness amongst the executives in Anglo Irish Bank. There was

clear evidence on foot of which she could have arrived at that view. I would go further than she expressly did and say that the

commentary forming part of the material published suggests, by implication, acceptance by John Bowe of that culture and his

participation in it by being complicit with David Drumm, in particular, in the formulation of a strategy to withhold of full information

from the board, and in the discounting of moral and ethical concerns in the consideration that was given to possibly burning the

bank’s own bondholders. I am therefore satisfied that the ingredients of the charge of contempt by publication were indeed fully made

out.

Other alleged errors by the High Court Judge

39. I turn next to the complaints that the High Court judge fell into error in failing to give due weight to the fact that the publication

did not relate to the matters the subject of the criminal charge, that a suitable charge to the jury would have prevented any

potential prejudice, and that the DPP clearly felt that other publications on sale throughout the prosecution did not constitute a

contempt (notwithstanding the fact that they covered exactly the same ground as the criminal prosecution).

40. As I have already indicated I take issue with the premise in the first part of this series of complaints, namely that that the

publication did not relate to the matters the subject of the criminal charge for the reasons I have already stated. However, I am

prepared to acknowledge that “for the most part” it did not do so. Did this fact invalidate the High Court judge’s finding of contempt?

I do not believe that it did for the following reasons.

41. Our criminal justice system is essentially common law based and an adversarial procedure is used in our criminal trials. The

fundamental philosophy underpinning the way in which we approach and try allegations of criminal misconduct is that it is better that

a guilty person should go free than that an innocent person should be convicted. The focus in our adversarial common law criminal

justice system is therefore on fairness of procedures. Accordingly, we have restrictive rules of evidence and only are prepared to

admit evidence which is regarded as fair, and we exclude evidence that is regarded as potentially unfair even if to do so may

sometimes be truth deflecting.

42. It is perhaps useful to contrast our approach in that regard with the philosophy underpinning the inquisitorial system of criminal

justice operated in most civil law systems. In those systems ascertainment of what is perceived to be “the truth with respect to the

allegation” represents the premium value. To that end almost all potentially relevant evidence that might contribute to revealing the

truth is admitted in evidence, even if it may come at the cost of a degree of unfairness to the accused, and the occasional wrongful

conviction.

43. One form of evidence that we routinely exclude in our system is evidence of prior misconduct. We do so out of concern that

knowledge of prior misconduct may prejudice the tribunal of fact, particularly where that tribunal is a jury, who may be tempted to

rely on evidence of propensity or of previous disposition, as being indicative of guilt – the so-called “forbidden reasoning”. (There are

of course exceptions to this rule of evidence, as indeed there are for many other rules of evidence, but it is a matter for the trial

judge in any trial to adjudicate on whether evidence which ostensibly requires to be excluded as misconduct evidence may

nevertheless be admitted in the particular case on foot of a recognised exception. For the purposes of the present discussion, it is

unnecessary to discuss the exceptions to the exclusionary rule with respect to misconduct evidence.)

44. The clearest form of prior misconduct evidence that is routinely excluded is evidence of previous convictions, or of previous

criminal conduct even if it was not prosecuted. However, the exclusion of evidence of prior misconduct is not confined to criminal

misconduct. As Declan McGrath, Senior Counsel, points out in his work entitled Evidence, 2nd ed, (Round Hall: 2014) the concept of

misconduct evidence “extends to evidence of discreditable acts by an accused the disclosure of which could have a prejudicial effect

on the tribunal of fact” and in support of this he cites B v DPP [1997] 3 I.R. 140 at 152; R v Ball [1911] A.C. 47; R v Barrington [1981]

1 All E R 1132; and R v. Robertson (1987) 39 DLR 4th 321.

45. As Binnie J said in R v Handy [2002] 2 S.C.R. 908, a decision of the Canadian Supreme Court (at para. 72):

“Proof of general disposition is a prohibited purpose. Bad character is not an offence known to the law. Discreditable

disposition or character evidence, at large, creates nothing but ‘moral prejudice’ and the Crown is not entitled to ease its

burden by stigmatising the accused as a bad person”

46. How much more objectionable then would be the introduction in evidence, were it to be attempted, of the subjective opinions of

“commentators” even if employed by an organ or organs of the media to offer their opinions.

47. It seems to me that in a case that was going to be all about whether a course of conduct was objectively dishonest, evidence of

engagement by the accused in conduct that was capable of being characterised as dishonest, immoral, unethical, deceitful and such

like, would require to be treated as being prima facie inadmissible as evidence of previous misconduct, unless the party seeking to

introduce it could legitimately invoke one of the recognised exceptions to the general rule. Accordingly the jury might well not get to

hear about it at the trial, and certainly there could be no decision as to whether or not they should hear of it until the trial.

48. Was is it right then that the jury in Mr Bowe’s case should potentially have heard about such matters by reading of them in a daily

newspaper, or in the course of surfing the internet, and furthermore be exposed to the subjective opinions of commentators as to

how the conduct at issue ought to be characterised, in circumstances where the publishers knew about both the fact of Mr Bowe

having been charged, and the nature of the charges preferred against him? I am satisfied that it was not right, that it was in fact a

contempt of court by publication as found by the High Court judge.

49. It is complained that due weight was not given to the fact that a suitable charge to the jury would have prevented any potential

prejudice. Such an argument might be relevant to a plea in mitigation at sentencing, but has no bearing on whether or not a

contempt was in fact committed. The matter is well put by my colleague Hogan J in para 19 of his judgment in this matter where he

acknowledges 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.”

50. Indeed if authority were needed for this proposition it is necessary to look no further than the judgment of Keane J in Kelly v

O’Neill (at p. 375 of the report) which I quoted earlier in this judgment at paragraph 11.

51. It is further complained that the DPP clearly felt that other publications on sale throughout the prosecution did not constitute a

contempt (notwithstanding the fact that they covered exactly the same ground as the intended prosecution). The appellants say

that a consideration of the extent of similar material already in the public domain was relevant to assessing the reality of the risk.

52. First, in that regard, I wish to express agreement with the High Court judge’s view that the date of publication is a key factor.

The other publications referred to were all published before Mr Bowe was charged. It is true they have remained on sale after he was

charged, and, by recourse to an analogy with the position under the law of copyright, the appellants contend that each further sale

represents a further publication and arguably a discrete and individual contempt of court, yet no action has been taken to restrain

them or to prosecute the publishers for contempt. I share O’Malley J’s reservations as to the appropriateness of the analogy, but

even if it is technically correct there were undoubtedly a significant number of the books at issue already in circulation and in the

public domain at the point at which Mr Bowe was charged, rendering it of questionable utility to bring contempt proceedings against

those publishers or to seek to restrain further sales. The situation in the case of the appellants is different. They first published after

Mr Bowe was charged and in the full knowledge of what it was he was charged with. It is a much more egregious and blatent

contempt. The fact that the DPP neither acted in respect of previous contempts by publication possibly committed by others, nor

sought to restrain the publications in question, is irrelevant to whether or not the appellants’ publication constituted a contempt of

court. At most, it might potentially have been relevant on the issue of sentencing.

53. As regards the reality of the risk, and to borrow an analogy, the fact that a fire may already exist, does not justify the further

feeding of that fire, much less the throwing of petrol upon its flames. If left to its own devices it may expire, or at least diminish, of

its own accord, reducing the associated risk. Applying the analogy to potentially prejudicial publications this is of course the thinking

behind the “fade factor” line of jurisprudence. Notwithstanding that a certain amount of the matters complained of were already in

the public domain, I consider that publication of the matters complained of could only have had the effect of significantly adding to

any existing potential for prejudice and that the High Court judge was entirely justified in concluding that “on a date after Mr Bowe

was charged, the appellants set out to associate him with aspects of the so-called “Anglo morality” in a way that was capable of

having a direct bearing on the crimes of dishonesty and conspiracy with which he is charged.”

54. I am conscious that so far in this judgment, the right to freedom of expression guaranteed in Article 40.6.1 of the Constitution has

received but slight attention. I share with my colleague Hogan J the view that it is an extremely important right, that it is indeed the

lifeblood of democracy. We are fortunate that we live in a stable democracy and that we are perhaps less dependent on the press to

hold our government and institutions of state to account than persons living elsewhere under more volatile and repressive regimes. It

would be indeed be regrettable if as a result of the serendipity of our stable political circumstances we were to attribute less value to

the right to freedom of expression than it deserves. I am confident that freedom of expression is appropriately cherished as an

important fundamental right guaranteed under the Constitution, and that it must be treated as being of equal importance with rights

similarly guaranteed, including the right to a trial in due course of law. However, as Keane J points out in Kelly v O’Neill, although

“freedom of expression is undoubtedly a value of critical importance in a democratic society, … like every other right guaranteed,

either expressly or by implication, by the Constitution it is not an absolute right.” The right must not be exercised to undermine public

order or morality or the authority of the State. Keane J further points out that the limitations on freedom of expression required by

the machinery of contempt of court were found not to be of themselves in violation of the right of freedom of expression guaranteed

by the European Convention on Human Rights in Times Newspapers Ltd. v. United Kingdom (1979) 2 E.H.R.R. 245.

55. Nevertheless given the importance of the right to freedom of expression any proposed interference with it for the purpose of

vindicating the right to trial in due course of law, has to be proportionate to the risk involved. Clearly, the risk appreciated must be a

real one, though not necessarily a serious one. It must in my judgment be real in the sense of representing a reasonable possibility

and not a remote or fanciful risk, while at the same time it does not have to represent a probability or likelihood. However, the more

serious the perceived risk to the right to a trial in due course of law the stronger the case may be for judicial intervention up to and

including a proportionate restriction on the exercise of the conflicting right, in this case the appellants’ right to freedom of expression

guaranteed in Article 40.6.10 of the Constitution, if it is not possible to uphold both rights.

56. There must also be a pressing need to interfere in the manner proposed, and it must involve no more than is necessary, for the

protection of the legitimate interests that it is sought to protect, in this instance Mr Bowe’s right to a fair trial, and the people of

Ireland’s right to expect that cases brought in their name can be tried in due course of law. There requires to be a consideration of

whether the price of doing so, in terms of restricting the exercise of the appellants’ constitutional right to freedom of expression even

on a limited and temporary basis until the trial is over, is an acceptable one given the importance in a democratic society of ensuring

that the press is in a position to comment upon, criticise and hold different sectors and interests to account in the public interest.

57. In summary, I believe the courts’ primary obligation is to uphold both rights and to do so where feasible by a harmonious

construction and application of the constitutional guarantees. Where, as here, it is contended that the right to a fair trial in due

course of law can only be upheld by an interference with or curtailment of the right to freedom of expression then, as stated by

Keane J., the right to freedom of expression should only be interfered with or curtailed “to the extent necessitated to protect the

right to trial in due course of law.” Further, as put by Denham J. in Kelly v. O’Neill “If there is a doubt the balance should be tipped in

favour of the administration of justice, of a fair trial”.

58. The fundamental differences between Hogan J and myself with respect to this case lie, I believe, in our respective views as to the

reality of the risk and as to the proportionality of the response. I cannot agree with him that it is unrealistic to say that this

publication – of all publications concerning Anglo – could have made all the difference, and that the risk of the trial being

contaminated by a publication of this kind is so low that the real risk test cannot be said to be satisfied. On the contrary I share

O’Malley J’s view that the story could have been adequately reported without any need to mention Mr Bowe by name at all, and

certainly without doing so in the same breath as offering, expressly or by implication, gratuitous judgments as to the ethics, morality

and honesty of the banks’ “executives” without discrimination, and emotive suggestions such as that their conduct would make one’s

“blood boil”, or that the reader should “prepare to be angered”.

59. I must also dissent from his view that the findings of contempt were in any event disproportionate to any risk that might have

existed. I do not accept that these findings had the potential to have, or that they have had, the anticipated “chilling effect” on all

discussion regarding Anglo and the implications of its collapse for the wider economy. I acknowledge that the facts in the present

case were markedly different from those in Kelly v O’Neill, and in particular that the restraints imposed in the present case were

destined to last for a much longer period of time than was the case in Kelly v O’Neill, but I remain convinced that, had they chosen to

do so, the appellants could have reported the great majority of the story published on the 17th of July 2014 in a matter of fact way

and without recourse to the accompanying prejudicial commentary.

60. As this judgment is confined to the appeal against conviction for contempt by publication I express no view at this time on

whether the concurrent injunction was proportionate in terms of the scope of the restrictions that it imposed, although I am in no

doubt that some form of injunction was indeed required.

Conclusion

61. I would dismiss the appeal against conviction.