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

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

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

IN THE MATTER OF A CONTEMPT OF COURT AND IN THE MATTER OF AN APPLICATION PURSUANT TO ORDER 44

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONSApplicant/Appellantand

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED, GERRARD O'REGAN AND ANN-MARIE WALSHRespondent/Respondents

Judgment of Mr. Justice Geoghegan delivered the 5th day of March 2008

By a notice of motion grounded on a single affidavit of one John Forde, the Director of Public Prosecutions ("DPP") sought an order directing the attachment and committal and/or sequestration of the assets of the above-named respondents for contempt of court in respect of material published in the Evening Herald newspaper of the 2nd December, 2004 and a further order restraining the said respondents from further publishing material calculated to interfere with the trial process then in being between the DPP and Patrick O'Dwyer as referred to in the grounding affidavit. The notice of motion was dated 1st February, 2005. A short replying affidavit sworn by the solicitor for the respondents was filed and apart from those affidavits and a few exhibits therein, there was no other evidence adduced at the hearing of the motion. The purpose of the replying affidavit was to place before the court certain reports concerning the pending proceedings referred to as contained in other Irish newspapers. As will have been inferred from what I have already stated, the application was made in connection with alleged advance adverse publications relating to a person charged with a criminal offence namely, a particularly serious assault. It was the DPP's contention that publications in the Evening Herald were calculated to interfere with the course of justice and the trial process and to prejudice the fair trial of one Patrick O'Dwyer. Contempt of court, from time immemorial, has been categorised in different ways but one of them is that all contempts are either civil or criminal. It is not in contention that the alleged contempt in this case, if it had been proved, was criminal and that therefore the respondents would have been punished for a criminal offence.

As this particular case illustrates, however, from time immemorial criminal contempt of court, if not prosecuted upon indictment in the ordinary way, has been dealt with summarily in the High Court. The historical reason for this was the urgency of obtaining such an order in many instances. Indeed there appears to be English authority to the effect that the summary procedure was only appropriate if there was this element of urgency. On this appeal, the court will not be called upon to consider any question as to whether, in cases of serious criminal contempt, a jury would be required, under the Constitution, to try disputed issues of fact. None of that arises in this case, as the application was dealt with, without objection by any party, as an ordinary motion on affidavits in the High Court. Dunne J. who heard the motion, by a reserved judgment, granted the respondents a "direction" and accordingly, refused the application. It is not necessary to consider whether "direction" was the correct terminology in the procedural circumstances of this case. The fact of the matter is that the order made was one of refusal of the application. On the findings of Dunne J. that was the correct order. Verdicts such as "guilty" and "not guilty" are not normal or appropriate in criminal contempt cases dealt with summarily upon motion.

The DPP has purported to appeal to this court from that decision. The respondents have raised a jurisdictional objection to the hearing of the appeal. Although the objection raises different and alternative issues of law, it is nevertheless one single objection and that is to an appeal from what is described as an acquittal on merits in a criminal case. That this is the objection is clear from both the written and oral submissions made on behalf of the respondents.

When the appeal came on for hearing, it was agreed between the parties and indeed encouraged by the court that the jurisdictional question would be dealt with first and the court indicated that that issue would probably have to be decided in advance of any further submissions on the merits. In a context which I will be explaining, an argument has been made in support of the jurisdictional objection that although nobody thought of it that way or would ever have thought of it that way, nevertheless Dunne J. hearing this motion for committal was, in point of law, "The Central Criminal Court". Again for reasons which I will, in due course, explain, I have come to the conclusion that at this stage that is really the only question which this court can fairly decide. It will emerge from the judgment that I take the view that the High Court presided over by Dunne J. hearing this motion for contempt was not the Central Criminal Court. If that view were to find favour with the majority of this court it would not, in my opinion, be appropriate to give any definitive view, without further argument, by the parties on the issue of whether notwithstanding the provision in the Constitution providing for appeals to this court from all decisions of the High Court unless the right of appeal has been removed either expressly or by necessary implication by law, there is nevertheless no appeal against an "acquittal". A number of issues arise on this aspect of the jurisdictional contention which have not yet been aired in open court and an opportunity for that to be done would, in my view, have to be given. The basic response of the DPP to the jurisdictional objection is in the terms of Article 34.4.3 of the Constitution. The relevant part of that provision reads as follows: "The Supreme Court shall, subject to such exception and such regulations as may be prescribed by law, have...

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