DPP v Independent Newspapers (Ireland) Ltd and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman,Mr. Justice Geoghegan,Mr. Justice Fennelly
• Judgment Date: 05 March 2008
• Neutral Citation: [2008] IESC 8
• Court: Supreme Court
• Docket Number: [S.C. No.,[221/05]
• Date: 05 March 2008

THE SUPREME COURT

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

[221/05]

Between

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant/Appellant

AND

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED AND ORS.

Respondents

Abstract:

Practice & procedure -Criminal law - Jurisdiction of Central Criminal Court, High Court - Contempt of Court - Appellate jurisdiction - Interpretation -Civil or criminal -Whether DPP could appeal to Central Criminal Court - Whether High Court exercising contempt of court powers was sitting as Central Criminal Court or was exercising criminal powers - Criminal Procedure Act 1993

: The DPP sought an order for attachment and committal or sequestration of the assets of the respondent in respect of an alleged contempt of court by a newspaper. The High Court had refused the application. A preliminary objection arose in an appeal to the Supreme Court as to its jurisdiction, concerning s. 11 of the Criminal Procedure Act 1993. The appellants alleged that the contempt jurisdiction of the High Court was a criminal jurisdiction and the High Court in this case became the Central Criminal Court. Secondly, the appellants alleged that accordingly there was no appeal from the Central Criminal Court to this Court them.

Held by the Supreme Court that applications for attachment or committal did not come within the jurisdiction of the Central Criminal Court and thus that the High Court had not been exercising the jurisdiction of the Central Criminal Court. The appellant was not prohibited from appealing back to the Supreme Court.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Fennelly delivered the 5th day of March 2008.

2 1. The Respondents have made a preliminary objection to the jurisdiction of this Court to hear this appeal. They submit that no appeal lies from the decision of the High Court (Dunne J.), refusing the application of the Appellant to attach or commit the Respondents for contempt of court. Determination of that issue depends on the correct interpretation of s.11 of the Criminal Procedure Act, 1993 combined with s. 11 of the Courts (Supplemental Provisions) Act, 1961.

3 2. The appellants say: a) the contempt jurisdiction of the High Court is a criminal jurisdiction; b) the High Court, when exercising its criminal jurisdiction, including its power to attach or commit for contempt of Court, is called the Central Criminal Court (s. 11 of the Act of 1961); c) there is no appeal from the Central Criminal Court to this Court (s. 11 of the 1993 Act).

4 3. The appellant applied by notice of motion to the High Court for an order directing the attachment and committal and/or sequestration of the assets of the Respondents and each of them for contempt of court in respect of material published in the Evening Herald on 2nd December 2004. The notice of motion also sought an order restraining the Respondent from further publishing material "calculated to interfere with the trial process now in being between the Applicant[the appellant] and Patrick O'Dwyer........The application was grounded on an affidavit sworn by Mr John Forde, a solicitor in the Office of the Chief Prosecution Solicitor. Mr Forde deposed that, on 1st December 2004, one Patrick O'Dwyer had appeared before the District Court in Ennis, County Clare, charged with murder. He exhibited a copy of the Evening Herald published on 2nd December 2004. He alleged that the contents of the article were calculated to interfere with the course of justice and the trial process and to prejudice the fair trial of the said Patrick O'Dwyer, that they were in breach of the sub judice rule and amounted to a contempt of court. According to the affidavit, the Evening Herald is published by the first-named Respondent, the second-named Respondent is its editor and the impugned articles were written by the third-named Respondent. A brief affidavit on behalf of the Respondents was sworn by Ms Paula Mullooly, solicitor.

5 4. The application was heard by Ms Justice Dunne. At the conclusion of the presentation of the case on behalf of the appellant, counsel for the Respondents applied to the learned judge for "a direction," or non-suit, relying on the principle that a trial court may direct an acquittal at that point. It was submitted that it was essential that there be proof before the court of a real risk of interference with a criminal trial and that no evidence had been adduced by the prosecution to demonstrate that the publication of which complaint was made created any real risk of interference with the due administration of justice in the prospective criminal trial of the said Patrick O'Dwyer.

6 5. Ms Justice Dunne delivered a reserved judgment on 3rd May 2005. She referred extensively to authority. She noted that what was alleged was a criminal contempt of court. She held that she was bound to apply

7 the criminal standard of proof. Accordingly, the appellant had to show that the Respondents were guilty beyond reasonable doubt of contempt of court. On careful consideration of the application of the appellant, she could not conclude that it had been shown that the articles complained had given rise to a real risk as distinct from a remote possibility of prejudice to the fairness of the trial. Hence, she refused the application.

8 6. The appellant, in his notice of appeal advances principally the contention that the learned judge had incorrectly failed to consider whether the appellant had made out a prima facie case that the Respondents had committed a contempt of court. The Respondents raised, in their written submissions, the question whether an appeal lies, as a matter of principle, from the decision of the High Court, which amounts to an acquittal in a criminal proceeding. That contention takes two forms. Firstly, the Respondents refer to the historic common-law rule, described as an elementary principle, that:

9 "an acquittal made by a court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other court. "(per Palles CB in R(Kane) v Tyrone Justices (1906) 40 ILTR 181).

10 7. Reference was also made to the dictum of O'Dalaigh J in State (Attorney General) v Binchy [1964] 395, at 416 that it was "entirely without precedent to go behind [a not guilty] verdict and it [was] now too late to create one." The submissions proceed to refer to the decisions of this Court in The People(Attorney General) v Conmey [1975] I.R. 341 and The People(Director of Public Prosecutions) v O'Shea [1982[ I. R. 384, describing the first as "highly controversial" preferring the dissenting views in the case of the latter. If the Court were to consider reviewing or overruling these precedents it would be necessary to make reference is made to the authorities governing the circumstances in which the Court will depart from precedent. None of that arises at this point. Secondly, the submissions rely on s. 11(1) of the Act of 1993 and the identically numbered provision of the Act of 1961. It is the latter point which the Court has decided to consider as a preliminary issue. The first one remains open.

11 8. The entire issue depends on whether Dunne J was sitting as a judge of the Central Criminal Court. As Hardiman J has observed in the judgment which he has delivered, "no person, and certainly no lawyer, would speak naturally of the Court in which Ms. Justice Dunne sat and disposed of the Director's application as "The Central Criminal Court. "That is certainly true. The question remains whether the wording of the two cited sections is sufficiently clear and unambiguous to oust the constitutionally ordained appellate jurisdiction of this Court. There is no doubt that this is a difficult question. There is great force in the conclusion expressed by Hardiman J. I have come, nonetheless, to a different conclusion. I need to consider the nature of the contempt jurisdiction. I must say, at once, that I fully accept that it clear beyond argument that the jurisdiction is of a criminal character. I consider, nonetheless, that the manner of its exercise, both historically, and, as it is at present exercised by the High Court, is of relevance. Most crucially, I will consider the nature of the jurisdiction exercised by the Central Criminal Court.

12 9. The proposition that a court, called upon to exercise its contempt jurisdiction is dealing with a criminal matter is well established. The nature of the remedy is determinative. The primary remedy sought in the Notice of Motion is the "attachment and committal and/or sequestration of the assets of the Respondents..."

13 10. The judgment of O'Sullivan P, in the High Court of the Irish Free State, in Attorney General v O'Kelly [1928] I.R. 308 traced common-law authorities back to the eighteenth century. It was, according to Wilmot C.J. a power to `fine and imprison for contempt of court. "( R v Almon 1 Wilm. 243) .Palles C.B. thought that "no one will contend that the jurisdiction to fine and imprison is not essentially criminal. " ( Attorney General v Kissane 32 L.R. I.R. 220). O'Higgins C.J. said as much in his judgment in State (Director of Public Prosecutions) v Walsh [1981 ] I. R. 412 at 429 .

14 11. The object and incidents of the jurisdiction may be discerned from the same historic sources and have been consistently reiterated down to our own time. It is, to cite Wilmot C.J. once more, that of the courts "vindicating their own authority ........He also drew attention to the contrasting methods of procedure, namely by attachment and by trial by jury. In a further part of his judgment, also cited by O'Sullivan P, he explained the need for the former procedure by the need:

15 "...to deter men from offering any indignities to Courts of Justice, and to preserve their lustre and dignity, it is a part of the legal system of justice...