DPP v Independent News and Media Plc

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 24 April 2015
• Neutral Citation: [2015] IEHC 882
• Docket Number: [Record No. 2014/385 MCA]
• Court: High Court
• Date: 24 April 2015

[2015] IEHC 882

THE HIGH COURT

O'Malley Iseult J.

[Record No. 2014/385 MCA]

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

AND

INDEPENDENT NEWS AND MEDIA PLC, CLAIRE GRADY

AND

STEPHEN RAE

RESPONDENTS

Contempt of court – Sub judice principle – Injunction – Applicant seeking an order directing the attachment and committal and/or sequestration of the assets of the respondents – Whether the publication of certain material amounted to contempt of court on the part of the respondents

Facts: The applicant, the DPP, alleged that the publication of articles and videos in The Irish Independent on the 17th July, 2014, and posted on its website that day and the next, amounted to a breach of the sub judice principle and contempt of court on the part of the respondents, Independent News and Media Plc, Ms Grady and Mr Rae. She applied to the High Court seeking an order pursuant to O. 44 of the Rules of the Superior Courts, directing the attachment and committal and/or sequestration of the assets of the respondents, as the case may be, and an order in the nature of an injunction restraining the respondent from publishing further material calculated to interfere with the criminal trial processes in being in respect of events at Anglo Irish Bank and in particular restraining the respondent from publishing further extracts from the “Anglo tapes”, transcripts of taped phone conversations between former officials of Anglo Irish Bank.

Held by the Court that the publication, which was made after an accused person had been charged and returned for trial, gratuitously identified and associated the accused with particular types of behaviour relevant to the charges to be considered by the jury.

The Court held that, having considered the evidence, submissions and relevant authorities, the respondents committed the offence of contempt of court.

Judgment approved.

JUDGMENT of Ms. Justice Iseult O'Malley delivered the 24th day of April 2015.

Note: Only the ‘Summary and conclusion’ of this judgment may be published until further order.

Introduction

1 This case concerns an allegation of contempt of court made by the Director of Public Prosecutions against the respondents arising out of the publication of certain material. The facts of the case are not in dispute and there was therefore no requirement to have any factual matter decided by a jury. The issue for the court is whether or not the publication amounted to a contempt.

2 The first named respondent is the parent company of the publisher of The Irish Independent. The second named respondent was the editor of that newspaper at the time when these proceedings were issued. She has since left that position and the applicant no longer seeks any order as against her. The third named respondent is the editor in chief. By consent of the parties, Internet Interactions Limited has been joined as a respondent. This entity is a subsidiary of the first named respondent and owns and operates a website on its behalf.

3 The proceedings are in relation to material published in The Irish Independent on the 17th July, 2014, and posted on its website that day and the next. The printed material consisted of extracts from transcripts of taped phone conversations between former officials of Anglo Irish Bank – the ‘Anglo tapes’ - together with articles commenting on the tapes. The online content included a number of videos relating to those conversations, featuring the audio versions. The videos were taken down at some stage after the applicant's initiation of proceedings.

4 Two former officials of the bank, who are both named in the publication, are currently awaiting trial on criminal charges alongside two former officials from another bank.

5 The applicant alleges that the publication of the articles and videos amounts to a breach of the sub judice principle and contempt of court on the part of the respondents. She seeks an order pursuant to O. 44 of the Rules of the Superior Courts, directing the attachment and committal and/or sequestration of the assets of the respondents, as the case may be; and an order in the nature of an injunction restraining the respondent from publishing further material calculated to interfere with the criminal trial processes in being in respect of the events at Anglo Irish Bank and in particular restraining the respondent from publishing further extracts from the ‘Anglo tapes’.

Background facts

6 For present purposes it is necessary only to note, without any detailed consideration, that the collapse of Anglo Irish bank and its takeover by the State have led to various extensive inquiries including criminal investigations. A number of individuals who were employed by the bank have been charged with various criminal offences.

7 The applicant says that before the matters in issue in this case arose, she had occasion to write to the first named respondent on the 21st December, 2012, the 26th June, 2013, and the 27th June, 2013, in relation to coverage of matters relating to former Anglo Irish Bank executives who were facing trial.

8 The first letter noted that a complaint had been received from the solicitors acting for a person accused with an offence under the Companies Act, 1963 about an article which, it was complained, constituted a contempt of court. It was stated that the Director was finalising her consideration of the matter and would be in further contact. It appears that there was in fact no follow-up to this letter.

9 The letter of the 26th June, 2013, concerned publication of material related to the first series of Anglo tapes. It referred to a trial fixed to commence the following January. It expressed concern that articles that had been appearing in The Irish Independent over the previous few days, combined with those which might be planned over the coming days, would lead to a situation where there might be a serious question as to whether a jury would be able to carry out its function in a dispassionate way.

‘While the Director accepts that the former officials named are not those whose trial is pending and the issues being discussed do not relate directly to the charges pending before the courts, there may nonetheless be a danger that an accumulation of articles might have the effect of tainting all former officials particularly senior officials of Anglo Irish Bank, including those the subject of charge.

In the circumstances the Director seeks your assurance that you will use your best endeavours to ensure that no further articles will appear in your newspaper which might prejudice the position of the accused persons whose trial is pending. Unless you provide such an undertaking the Director will take such steps as she deems proper to protect the integrity of the trial process.’

10 The third letter, written in response to a reply from the respondent on the 26th June, indicated that the applicant was considering seeking an appropriate order from the Circuit Criminal Court to protect the integrity of the trial process. However, it appears that no such action was taken in that case.

11 Mr. John Bowe, Mr. Denis Casey and Mr. Peter Fitzpatrick and Mr. William McAteer are co-accused in pending criminal proceedings. Mr. Bowe was the Head of Capital Markets in Anglo Irish. Mr. McAteer also held a relatively senior position there. The other two gentlemen worked for a different financial institution.

10 According to the affidavits, Mr. Bowe was charged on the 18th December, 2014, with conspiracy to defraud contrary to common law and false accounting contrary to s.10 of the Criminal Justice Theft and Fraud Act, 2001. Mr. Casey and Mr. Fitzpatrick were charged on the same date with conspiracy to defraud. Mr. McAteer was charged on the 17th June, 2014, with false accounting and conspiracy. All of the charges relate to a particular transaction, carried out on the 30th September, 2008, between Anglo Irish and another bank (‘the transaction’). It will be alleged by the prosecution that the effect of the transaction was to create a false impression of the scale of deposits held by Anglo Irish at that time. However, it should be noted that the conspiracy to defraud, as particularised on the indictment, is alleged in relation to ‘ divers dates between the 1 March 2008 and 30 September 2008 both dates inclusive’.

11 At least some of the dates of charge set out here must be wrong. In particular the date in relation to Mr. Bowe should perhaps be read as referring to 2013. It does however seem to be clear that the accused were returned from the District Court to the Circuit Criminal Court on these charges on the 17th June, 2014.

12 The matter was first listed in Dublin Circuit Court on the 11th July, 2014, and a trial date of the 11th January, 2016, has been set.

13 On the 17th July, 2014, the respondents published a five-page set of articles in the Irish Independent, starting on the front page with the headline ‘ Anglo: the new tapes revealed.’ The three sub-headings read ‘ Recordings show how Drumm tried to gloss over perilous state of bank’, ‘ Bankers laughed and joked as financial crisis engulfed the economy’ and ‘ Drumm said he would give “Ladybird version” of events to the board’.

14 The reference to ‘Drumm’ is to David Drumm, the former Chief Executive of Anglo Irish.

15 The article read in relevant part as follows:

‘New tapes have emerged which throw the months before the calamitous bank crash into fresh light.

They reveal how Anglo Irish Bank's then chief executive laughed and joked as Ireland's economy shuddered to a halt. The tapes also reveal David Drumm speaking to a fellow senior bank executive about giving his own board “the Ladybird” version of events.

…

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