DPP v Independent News and Media Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards,Mr. Justice Gerard Hogan
• Judgment Date: 20 December 2017
• Neutral Citation: [2017] IECA 341
• Date: 20 December 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 341 Neutral Citation Number: [2017] IECA 341 Record No. 2016 104

[2017] IECA 341

THE COURT OF APPEAL

Hogan J.

Edwards J.

Finlay Geoghegan J.

Hogan J.

Edwards J.

Neutral Citation Number: [2018] IECA 341

Neutral Citation Number: [2017] IECA 341

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 DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT / RESPONDENT

- AND -

INDEPENDENT NEWS AND MEDIA PLC, CLAIRE GRADY, STEPHEN RAE

AND

INTERNET INTERACTIONS LIMTIED

RESPONDENTS / APPELLANTS

Conviction – Contempt of court – Publication – Appellants seeking to appeal against conviction – Whether the High Court was incorrect in coming to the view that the ingredients of contempt were made out

Facts: The appellants appealed to the Court of Appeal against the judgment and orders of the High Court dated the 24th April 2015 finding the first, third and fourth appellants, Independent News and Media Plc, Mr Rae and Internet Interactions Ltd, guilty of contempt of court in publishing material in the issue of the Irish Independent newspaper of the 17th 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 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, and who had been returned for trial on indictment before the Circuit Criminal Court, which trial was scheduled to commence in January 2016. The appellants contended that the High Court was incorrect in coming to the view that the ingredients of contempt were made out and 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 respondent, 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.

Held by the Court that the ingredients of the charge of contempt by publication were fully made out. The Court did not believe that the premise that that the publication did not relate to the matters the subject of the criminal charge invalidated the High Court judge's finding of contempt. The Court held that while the argument that due weight was not given to the fact that a suitable charge to the jury would have prevented any potential prejudice might be relevant to a plea in mitigation at sentencing, it has no bearing on whether or not a contempt was in fact committed. The Court expressed agreement with the High Court judge's view that the date of publication was a key factor; the other publications referred to were all published before Mr Bowe was charged. The Court held that the situation in the case of the appellants was different; they first published after Mr Bowe was charged and in the full knowledge of what it was he was charged with, which was a much more egregious and blatant contempt.

The Court held that it would dismiss the appeal against conviction.

Appeal dismissed.

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 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...