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

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

Judicial Review221/05

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 Hardiman delivered the 5th day of March, 2008.

Background.

On the 1st December, 2004, a man called Patrick O'Dwyer appeared before the District Court in Ennis, Co. Clare, having been charged with the murder of Marguerite O'Dwyer, his sister, on the 29th November, 2004.

On the 2nd December, 2004, a number of articles were published in a newspaper published by the first-named respondent, edited by the second-named respondent and carrying the by-line of the third named respondent. Shortly afterwards, the Director of Public Prosecutions instituted contempt proceedings against the three respondents saying that the material published on the 2nd December, 2004: "… was calculated to interfere with the course of justice and the trial process then in being between the applicant and Patrick O'Dwyer and to prejudice the fair trial of the said Patrick O'Dwyer. Furthermore, the said publications took place subsequent to the criminal charge preferred against the accused and to his remand in custody and in breach of the sub judice rule and contained details in respect of the remand hearing before Ennis District Court on the 1st December, 2004 which further amounted to contempt of court." The above quotation is taken from the Notice of Motion issued by the applicant on the 1st February, 2005. In this Notice of Motion he seeks, at paragraph 1: "An order directing the attachment and committal and/or sequestration of the assets of the respondents herein, as the case may be, and each of them for contempt of court in respect of material published in the Evening Herald newspaper on the 2nd day of December, 2004, which material is exhibited and described with particularity in the affidavit sworn herein on the 1st day of February, 2005, by John Forde on behalf of the applicant." It will be noted, accordingly, that the first relief sought by the applicant in the contempt proceedings was committal to prison of the individual defendants, because they had committed a contempt of court. Such a deprivation of liberty would obviously be penal in nature. The other relief sought, presumably against the corporate respondent, was sequestration of property. This is undoubtedly a penal deprivation of assets, by reason of the fact that the company must have been, before any sequestration is ordered or takes place, found guilty of contempt of court.

The Director's application for committal and sequestration was heard before the High Court (Dunne J.) in May, 2005. On the 3rd May of that year a written judgment was delivered by the learned High Court judge dismissing the Director's application and acceding to an application made by the respondents for a non-suit or "direction", at the end of the prosecution case. The order of the High Court, perfected on the 12th May, 2005, records that: "The Court doth refuse the relief sought." By a document dated the 14th June, 2005, the appellant, the Director of Public Prosecutions, has purported to appeal this decision of the High Court to this court. Some time after this notice was lodged the respondents decided that they would take the point that, in the circumstances outlined above, no appeal lies from the decision of the High Court with which the Director is aggrieved. When the appeal came into the list for hearing this Court directed that that issue be dealt with first.

Constitutional and statutory provisions.

By virtue of Article 34.4.3 of the Constitution: "The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law." The main relevant "exception… prescribed by law" is contained in s.11 of the Criminal Procedure Act, 1993 which provides as follows:"(1) The right of appeal to the Supreme Court, other than an appeal under s.34 of the Criminal Procedure Act, 1967, from a decision of the Central Criminal Court is hereby abolished." At the hearing before this Court the Director conceded that...

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