DPP v Independent Newspapers

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kelly
Judgment Date07 March 2003
Neutral Citation[2003] IEHC 624
Date07 March 2003
Docket Number[2003 No. 3 M.C.A.]

[2003] IEHC 624

THE HIGH COURT

No. 3 MCA/2003
DPP v. INDEPENDENT NEWSPAPERS (IRL) LTD & ORS

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant

and

INDEPENDENT NEWSPAPERS IRELAND LIMITED
First Respondent

and

MICHAEL ROCHE
Second Respondent

and

SUNDAY NEWSPAPERS LIMITED
Third Respondent

and

COLIN McGINTY
Fourth Respondent

and

INDEPENDENT STAR LIMITED t/a THE IRISH DAILY STAR
Fifth Respondent

and

GERARD COLLERAN
Sixth Respondent
DPP v. INDEPENDENT NEWSPAPERS (IRL) LTD & ORS

and

ALICE O'SULLIVAN
Seventh Respondent

and

RADIO TELEFIS EIREANN
Eighth Respondent

and

JAMES DALY AND ROSS BYRNE
Notice Parties

Citations:

CHILDREN ACT 2001

CRIMINAL JUSTICE ACT 1984 S4

ROAD TRAFFIC ACT 1961 S112

DPP V WALSH 1981 IR 412

KENNEDY & MCCANN, RE 1976 IR 382

KELLY V O'NEILL 2000 1 IR 355

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

TIMES NEWSPAPER LTD V UK 1979 2 EHR 245

LRC REPORT ON CONTEMPT OF COURT LRC 47/1994

DPP V INDEPENDENT NEWSPAPERS LTD & ORS 1985 ILRM 183

R V PARKE 1903 2 KB 432

R V DAILY MIRROR EX PARTE SMITH 1927 1 KB 845

R V SAVUNDRAYANAGAN & WALKER 1968 3 AER 439

LRC CONSULTATION PAPER ON CONTEMPT OF COURT CP 4/1991

R V BEAVERBROOK & ASSOCIATED NEWSPAPERS LTD 1962 NI 15

CONTEMPT OF COURT ACT 1981 (UK)

ADMINISTRATION OF JUSTICE ACT 1960 S11

AG V SPORT NEWSPAPER & ORS 1991 1 WLR 1194

JAMES V ROBINSON 1963 109 CLR 593

METZNER V GOUNOD 1874 30 LT 264

SHAW V DPP 1962 AC 220

R V ODHAMS PRESS LTD 1957 1 AB 73

R V SHARPE & STRINGER 1938 1 AER 48

AG V NEWSGROUP NEWPAPERS PLC 1989 QB 110

AG V SPORTS NEWSPAPERS LTD & ORS 1991 1 WLR 1194

CONTEMPT OF COURT ACT 1981 S6(C) (UK)

HALL V ASSOCIATED NEWSPAPERS LTD

STIRLING V ASSOCIATED NEWSPAPERS LTD 1960 JC 5

CONTEMPT OF COURT ACT 1981 S2 (UK)

CONTEMPT OF COURT ACT 1981 SCHED 1 (UK)

ADMINISTRATION OF JUSTICE ACT 1960

Synopsis:

PRACTICE AND PROCEDURE

Contempt

Sub judice - Whether publication of prejudicial material relating to matters sub judice - Whether contempt of court to publish material prejudicial to accused when charges imminent but not yet proffered (2003/3MCA - Kelly J - 7/3/ 2003)

DPP v Independent Newspapers Ltd - [2003] 2 IR 367 - [2003] 2 ILRM 260

the first, third and fifth respondents published prejudicial material in respect of charges against the notice parties which were at the time of publication pending in the District Court. They also, along with the eighth respondent, published prejudicial material prior to the charging of the notice parties on other charges. The applicant sought to argue that publication of the prejudicial material prior to the proffering of the charges in question, that is, when the charges were imminent as opposed to pending, amounted to a contempt of court.

Held by Kelly J in finding the first, third and fifth respondents guilty of contempt of court in respect of their publication of prejudicial material relating to charges against the notice parties which were at the time of publication pending, but acquitting all of the respondents of contempt in respect of publication of prejudicial material relating to other charges which at the time of publication were imminent rather than pending against the notice parties, that there is no such thing in the common law as "contingent contempt" and therefore the harmful consequences of a publication made before proceedings are commenced is not punishable by summary procedure as a contempt.

1

JUDGMENT of Mr. Justice Kelly delivered the 7th day of March, 2003.

Introduction
2

This judgment sets out my reasons for acquitting the respondents (save the first) of contempt of court in respect of the publication of material prejudicial to the fair trial of the notice parties at a time when the charging of such notice parties before the District Court had not taken place.

3

The Director of Public Prosecutions contended that it was a contempt of court to publish such material when charges were imminent but had not yet been preferred in the District Court. I held that such conduct did not amount to a contempt of court in Irish law. These are my reasons for that finding.

Facts
4

At. 4.03am on Saturday 11 th January, 2003 a traffic accident occurred at the junction of North Circular Road and Portland Row in Dublin. Two vehicles were involved. One was a taxi driven by a Robert McGowan. The other was a Honda car believed to have been stolen. Robert McGowan was killed instantly. Three persons were cut out of the stolen car by the emergency services. Two of them were the notice parties and the third, one Edward Gavin, died on Tuesday 14 th January, 2003.

5

Both notice parties were children within the meaning of that term as contained in the Children Act, 2001.

6

They were taken to the Mater hospital. At 11.27 am on Sunday 12 th January, 2003 the notice party Daly was arrested and detained under s.4 of the Criminal Justice Act, 1984.

7

At 1.30pm on Sunday 12 th January, 2003 the notice party Byrne was arrested and detained under s.4 of the Criminal Justice Act, 1984. Both were later released from custody and then arrested for the purpose of being charged with an offence under s.112 of the Road Traffic Act, 1961as amended. Both were held in custody overnight and taken to the District Court on the following day.

8

At 10.30 am on Monday 13 th January, 2003 both notice parties appeared before the District Court where evidence of arrest, charge and caution was given in respect of them. They were remanded in custody. Much publicity was generated on the 12 th and 13 thJanuary, 2003 concerning these events. It is in respect of some of that publicity that application was made to Finnegan P. for leave to commence the instant proceedings. Leave was granted and the proceedings came to hearing before me commencing on the 23 rd January, 2003. They were concluded on the 28 th January, 2003.

The First and Second Respondents.
9

At the time of the hearing the first respondent was the publisher of the "Evening Herald" and "Irish Independent" newspapers. The second respondent was the Group Managing Editor of those newspapers. As such he had executive responsibility for budgetary, financial, legal and commercial issues relevant to those papers. He was not however the editor of either of them. There was uncontroverted evidence before the court to the effect that he did not have day to day responsibility for the content of the newspapers. Such being the case and given that the allegation made against him was of a criminal contempt of court in respect of matters published in these newspapers I was of opinion that he ought to be acquitted. He was not the editor of either journal nor did he have responsibility for the content of them. For these reasons he was acquitted.

10

On Monday the 13 th January 2003 the Evening Herald published a front page story under the headline "Boys face joy ride death charges". The sub headline was "Teenagers facing court over smash that killed taxi driver were out on bail". The article was accompanied by a picture of the two notice parties with the legend "Caught: Ross Byrne" and "Caught: James Daly" beneath them. The article so far as relevant stated

"These are the two teenage youths who are to be charged in relation to the fatal smash which robbed a two year old boy of his father, a woman of her husband to be and devastated parents of their only son."

11

They were out on bail on other charges when they allegedly engaged in a driving madness which ultimately cost 30 year old Bob McGowan his life.

12

Ross Byrne (16) from Clonard Road in Donnycarney Dublin—allegedly the driver of the car?"was in the Children's Court less than 48 hours before the tragedy at 4.00am on Saturday at Summerhill parade, Dublin. He was due back there next week.

Charges
13

His pal James Daly (16) from Gloucester Place, in Dublin's North inner city—allegedly a front seat passenger in the killer car—was also due back in the Smithfield courtroom next week.

14

Byrne is expected to be charged with the unauthorised taking of the Honda car involved in the fatal crash.

15

Daly is expected to be charged with unauthorised carriage in the vehicle."

16

A twofold charge of contempt of court was levelled against the first respondent arising from this publication in the "Evening Herald". It was said it constituted a contempt of court in respect of charges which were at the time of publication pending. Indeed the very body of the article recognises the fact that the notice parties were out on bail in respect of those charges. Insofar as this allegation of contempt of court was concerned I found it proved and imposed a fine of €10,000.

17

The second allegation was to the effect that a contempt of court was committed by the publication of prejudicial material prior to the charging of the notice parties in the District Court in respect of the incident on 11 th January, 2003. I held as a matter of law that if such prejudicial material had been so published contempt of court would not have been committed. However because on the evidence I was satisfied that publication continued after the time when the notice parties were charged in the District Court a contempt was in fact committed. I took the view that it was rather technical in nature and so imposed no penalty. The evidence demonstrated that the offensive material was contained only in the first edition of the newspaper.

18

The second edition which was printed at approximately 12 noon had all reference to the notice parties removed because word had been received that they had been charged.

19

The Irish Independent published an article on 13 th January 2003. It was contained at page 9 of the newspaper. The headline read

"Two death smash teenagers already have criminal records." The article stated inter alia that

"Teenager A was the driver of the stolen Honda which raced at up to 100mph across the...

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