DPP v Independent News and Media Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 30 July 2018
• Neutral Citation: [2018] IECA 301
• Docket Number: Neutral Citation Number: [2018] IECA 301,[C.A. No. 104 of 2016]
• Court: Court of Appeal (Ireland)
• Date: 30 July 2018

[2018] IECA 301

THE COURT OF APPEAL

The Court

Finlay Geoghegan J.

Hogan J.

Edwards J.

Neutral Citation Number: [2018] IECA 301

Record No. 2016/104

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 PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT / RESPONDENT

- AND -

INDEPENDENT NEWS AND MEDIA PLC, CLAIRE GRADY, STEPHEN RAE

AND

INTERNET INTERACTIONS LIMITED.

RESPONDENTS / APPELLANTS

Penalties – Contempt of court – Publication – Appellants seeking to appeal against the severity of penalties – Whether the trial judge placed undue weight on the issue of deterrence in approaching the question of sentence

Facts: The High Court, on the 24th April 2015, found the appellants, Independent News and Media Plc, Ms Grady, Mr Rae and Internet Interactions Ltd, guilty of contempt of court in publishing material in a particular issue of the Irish Independent Newspaper, that was calculated to create a real risk of an unfair trial in the case of an individual who was charged with conspiracy to defraud contrary to the common law, and with making gain or causing loss contrary to s. 10 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and who had been returned for trial on indictment before the Circuit Criminal Court, which trial was scheduled to commence some months later. On the same date, the High Court imposed an injunction restraining the first, third and fourth appellants from publishing further material calculated to interfere with certain criminal trial processes in being. On the 9th June 2015, the High Court sentenced the first and fourth appellants to each pay a fine in the sum of €50,000, the said fines to be paid within 30 days, with distress in the event of default. A fine of €100 was also imposed upon the third appellant to be paid within thirty days with two days' imprisonment in default. The appellants appealed against all of the orders of the High Court, namely the conviction, the penalties imposed and the injunction. On the 21st December 2017, the Court of Appeal, by a majority, upheld the decision of the High Court in respect of the convictions for contempt by publication. This judgment was concerned with the appeals against the severity of the penalties imposed upon the appellants in the High Court. No issue was taken with the fine of €100 imposed upon the third appellant. Accordingly, this appeal related solely to the fines of €50,000 imposed upon the first and fourth appellants respectively. The penalties imposed by the High Court were appealed against on the following grounds: (a) the trial judge placed undue weight on the issue of deterrence in approaching the question of sentence; and (b) the trial judge failed to give adequate weight to a range of mitigating factors which, in their totality, merited a much lower set of fines than those imposed.

Held by the Court that the offending conduct was properly to be regarded as of moderate gravity, meriting location centrally in the intermediate range identified in terms of potential penalties, i.e., the range between €20,000 and €100,000, that the aggregate fines imposed were simply too high and that they were disproportionate. In the circumstances, the Court was disposed to allow the appeal, quash the sentences imposed in the court below, and to re-sentence the appellants.

The Court held that it would nominate an aggregate penalty of €60,000, or €30,000 in the case of each individual appellant, as being the appropriate headline sentence. The Court was disposed to discount by €10,000, i.e., €5,000 in the case of each individual appellant, to reflect the mitigating circumstances. The final sentences imposed by the Court were fines of €25,000 in the case of each individual appellant (representing an aggregate fine of €50,000).

Appeal allowed.

JUDGMENT of the Court delivered by Mr. Justice John Edwards on 30th July 2018.

Introduction

1 For the avoidance of confusion, this Court 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 On the 24th of April 2015, O'Malley J in the High Court found each of the appellants herein guilty of contempt of court in publishing material in a particular issue of the Irish Independent Newspaper, that was calculated to create a real risk of an unfair trial in the case of an individual who was charged with conspiracy to defraud contrary to the common law, and with making gain or causing loss 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 some months later. On the same date, O'Malley J imposed an injunction restraining the first, third and fourth named appellants from publishing further material calculated to interfere with certain criminal trial processes in being.

3 On the 9th of June 2015, O'Malley J sentenced the first and fourth named appellants to each pay a fine in the sum of €50,000, the said fines to be paid within 30 days, with distress in the event of default. A fine of €100 was also imposed upon the third named appellant to be paid within thirty days with two days" imprisonment in default.

4 The appellants appealed against all of the orders of the High Court, namely the conviction, the penalties imposed and the injunction. On the 21st of December 2017, this Court, by a majority (Finlay Geoghegan J, and Edwards J; Hogan J dissenting), upheld the decision of the High Court in respect of the convictions for contempt by publication. This judgment is now concerned with the appeals against the severity of the penalties imposed upon the appellants in the High Court. It should be noted that we have been informed that no issue is taken with the fine of €100 imposed upon the third named appellant. Accordingly, this appeal relates solely to the fines of €50,000 imposed upon the first and fourth named appellants respectively.

Relevant evidence on foot of which the appellants were sentenced.

5 As acknowledged in my earlier judgment delivered on the 21st of December 2017 in respect of the conviction appeal, the facts of the case are fully set out in judgment of the High Court of the 24th of April 2015, and reprised in the judgment of Hogan J in this Court in respect of the conviction appeal, also delivered on the 21st of December 2017. However, it is nevertheless necessary for the purposes of today's judgment to re-iterate the salient features of the relevant evidence.

6 On the 17th of July 2014, The Irish Independent published a series of articles – entitled 'Anglo: the New Tapes Revealed' (hereinafter 'the publications'). The reference in the title of the publications to 'Anglo' is, needless to say, a reference to Anglo Irish Bank plc (hereinafter 'Anglo'), the bank centrally involved in the banking crash and whose insolvency ultimately cost the taxpayer a sum apparently in excess of €25bn. Three further sub-headings appeared on 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.'

7 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 of January 2008. The articles portrayed senior banking executives in a generally unflattering light, as they struggled 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 due to hit until September 2008.

8 Many of the articles and the accompanying commentary centred on two discussions 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 'go in and buy it so it looks like private clients...' They 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 that it 'would be a small move on the needle on the capital and nobody would care.'

9 In another discussion, Mr. Drumm is heard to discuss with Mr. Bowe how the Bank's funding difficulties should be addressed at an upcoming 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 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.

10 In the normal course of events, and in the context of contemporary journalism, the running of this story by a major national news outlet would seem quite permissible and not open to any legal objection. The Irish Independent had secured a good story and was...