DPP -v- Independent Newspapers (Ireland) Limited & ors, [2008] IESC 8 (2008)

Docket Number:221/05
Party Name:DPP, Independent Newspapers (Ireland) Limited & ors
Judge:Fennelly J.
 
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THE SUPREME COURT

JUDICIAL REVIEW[221/05]

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

Between

THE DIRECTOR OF PUBLIC PROSECUTIONSApplicant/AppellantAND

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED AND ORS.Respondents

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

  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.

  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).

  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.

  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.

  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 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.

  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: "an acquittal made by a court of competent jurisdiction and made within its jurisdiction...

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