Murphy v British Broadcasting Corporation

JurisdictionIreland
JudgeMr. Justice William M. McKechnie
Judgment Date21 December 2004
Neutral Citation[2004] IEHC 420
CourtHigh Court
Docket Number[2001 No. 49 MCA]
Date21 December 2004

[2004] IEHC 420

THE HIGH COURT

[Record No. 2001/49 MCA]
MURPHY v. BRITISH BROADCASTING CORPORATION & DPP

BETWEEN

COLM MURPHY
APPLICANT

AND

THE BRITISH BROADCASTING CORPORATION
RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSEUCTIONS
NOTICE PARTY

Citations:

RSC O.44 r3

OFFENCES AGAINST THE STATE ACT 1939 S41(4)

OFFENCES AGAINST THE STATE ACT 1939 S43(1)(e)

CONSTITUTION ART 30.3

CONSTITUTION ART 38.3

OFFENCES AGAINST THE STATE ACT 1939 45(1)(e)

DPP, PEOPLE V O'CALLAGHAN 2001 1 IR 584

MCAULEY V MCDERMOTT 1997 2 ILRM 486

CARL ZEISS STIFTUNG V RAYNER & KEELER LTD (NO. 2) 1967 1 AC 853

KELLY (EDWARD N) V AG & IRELAND 1986 ILRM 318

BREATHNACH V IRELAND 1989 IR 489

CORPORATION OF DUBLIN V FLYNN 1980 IR 357

COX V DUBLIN CITY DISTILLERY 1915 1 IR 345

CARROLL V RYAN & ORS 2003 1 IR 309 2003 2 ILRM 1

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S9

ENNIS, STATE V FARRELL 1966 IR 107

SPUC V COOGAN 1989 IR 734

IRISH PERMANENT BUILDING SOCIETY V CALDWELL 1979 ILRM 273

MCARTHUR, RE 1983 ILRM 355

DE ROSSA V INDEPENDENT NEWSPAPERS LTD 1998 2 ILRM 293

KELLY V O'NEILL 2000 1 IR 354 2000 1 ILRM 507

COMMINS, STATE V MCRANN 1977 IR 78

DOBSON V HASTINGS 1992 ALL ER 394

CHIEF CONSTABLE OF LEICESTERSHIRE V GARAVELLI 1997 EMLR 543

AG V O'KELLY 1928 IR 308

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3

DPP, STATE V WALSH 1981 IR 412

CONSTITUTION ART 35.2

SHANNON REGIONAL FISHERIES BOARD V CAVAN CO COUNCIL 1996 3 IR 267

AG V NEWSPAPER PUBLISHING PLC 1997 WLR 926 TLR 2.5.97

DESMOND & DEDEIR v GLACKIN & ORS 1993 3 IR 1 1992 ILRM 490

SUNDAY TIMES V UK 1979 2 EHRR 245

AG V O'KELLY 1928 IR 308 62 ILTR 78

EARLE, RE 1938 IR 485

AG V CONNOLLY 1947 IR 213 81 ILTR 92

HAUGHEY, RE 1971 IR 217

KEEGAN V DE BURCA 1973 IR 223

COMMINS, STATE V MCRANN 1977 IR 78

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S8(2)

DPP, PEOPLE V O'SHEA 1982 IR 384 1983 ILRM 549

TORMEY V IRELAND 1985 IR 289

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

CONSTITUTION ART 34.1

CONSTITUTION ART 50.1

CONSTITUTION SAORSTAT EIREANN 1922 ART 64

CONSTITUTION SAORSTAT EIREANN 1922 ART 72

CONSTITUTION ART 38.5

CONSTITUTION SAORSTAT EIREANN 1922 ART 73

AG V TIMES NEWSPAPER LTD 1974 AC 273

R V ALMON 1765 WILM 243

AG V KISSANE 1893 32 LR IR 220

SKIPWORTH'S CASE LR 9 QB 230

MCENROE V LEONARD UNREP HIGH COURT PARKE J 9.12.1975

ARLIDGE EADY & SMITH ON CONTEMPT 2ED PARA 3.56

BROWN, STATE V FERAN 1967 IR 147

LAW REFORM COMMISSION REPORT ON CONTEMPT OF COURT (1994) 206

KELLY ON THE CONSTITUTION 4ED PARA 6.5.405

S (PS) V S (JA) (ORSE CO) & INDEPENDENT NEWSPAPERS (IRL) LTD & ORS UNREP HIGH COURT BUDD 22.5.1995 1998/10/2967

O'DONNELL SOME REFLECTIONS ON THE LAW OF CONTEMPT 2002 2 JSIJ 88

S (J) V S(C) (ORSE T (C)) 1997 3 FAM LJ 78

Synopsis:

CONSTITUTIONAL LAW

Constitution

Continuance of common law position - Carrying over law of Free State into body of law of present State - Whether pre-1922 common law surviving enactment of constitutions - Constitution of Saorstát Éireann 1922, art 72 - Constitution of Ireland 1937, art 50 - Declarations granted (2001/49MCA - McKechnie J - 21/12/2004) [2004] IEHC 420

Murphy v British Broadcasting Corp.

CONSTITUTIONAL LAW

Personal rights

Fair trial - Right to trial by jury - Criminal contempt - Whether contemnor entitled to trial by jury - Whether contempt criminal in nature or sui generis - Constitution of Ireland 1937, art 38.5 - Declarations granted (2001/49MCA - McKechnie J - 21/12/2004) [2004] IEHC 420

Murphy v British Broadcasting Corp.

1

Mr. Justice William M. McKechnie delivered on the 21st day of December 2004.

Questions for Decision:
2

1. Both the applicant and the respondent, in these proceedings, have agreed that this court should determine as preliminary issues the following two questions:

3

2 "1.

4

(a) Is the respondent estopped by the decision of the Special Criminal Court made on 26 th day of February, 2001 (sic) or by its stance before that court from arguing that the applicant does not have locus standi to bring these proceedings in the High Court.

5

a (b)if the respondent is not so estopped, does the applicant have locus standi to bring these proceedings in the High Court?

6

2. Is the respondent entitled to have these proceedings tried with a jury?"

7

The actual date of the decision referred to was not in fact the 26th day of February, 2001, the date when final argument was made, but rather was the 16 th of March, 2001, when the judgment of that court was delivered by the presiding judge namely Mr. Justice O'Donovan.

8

In a separate and unconnected action in which the respondent's counsel also appeared, similar questions of law arose with the result that the decision in this case awaited the determination in that action. As it happened that matter I am informed has been resolved by the parties and therefore there is no judgment delivered by the court of trial.

Background
9

2. On 15 th August, 1998, an atrocity, planned by utmost evil and wicked minds, executed with profound depravity and perpetrated with inhuman savagery, caused the deaths of 31 people, including unborn twins, and otherwise gravely maimed multiple other innocent people. It was and is known as "the Omagh Bombing". On 5 th October, 1999, the applicant in this motion, Mr. Colm Murphy, was charged with two offences directly connected with this horrific slaughter. The first alleged that between 13 th and 16 th August, 1998, at Dundalk in the county of Louth, he, as an accused person, unlawfully and maliciously conspired with others to cause by an explosive substance, an explosion of a nature likely to endanger life or cause serious injury to property whether within the State or otherwise. The second charged the applicant with being, on 14 th August, 1998, a member of an unlawful organisation styling itself the Irish Republican Army otherwise known as Óglaigh na hÉireann. whilst these charges were pending before the Special Criminal Court and at a time when the trial of the applicant was fixed for 16 th January, 2001, the respondent ("the BBC") decided to broadcast a special Panorama programme on the bombing. It is that programme, and its pre-broadcast publicity, as well as related material on its website, which gives rise to this motion and to the preliminary issues above identified.

10

3. In late September 2000 the applicant, as he left Dundalk Garda Station, was accosted and asked questions by a film and sound crew of the BBC. This was part of its then intended Panorama film which was scheduled for transmission on 9 th October, 2000. On 4 th October "The Star" newspaper, which is circulated within this jurisdiction, published, on page 1 of that edition under the heading "Omagh Bombers unmasked — Top TV show to name mass murderers", an "exclusive" about this programme. The report continued on inside pages with Mr. Murphy being named as a person facing charges in connection with the bombing.

11

4. Being concerned that the proposed programme could possibly prejudice the trial of their client, Messrs E. Hanahoe & Company Solicitors wrote, without satisfaction, to the BBC by way of letter dated 6 th October, 2000. On the 9 thOctober immediately prior to its transmission, the Northern Ireland Human Rights Commission failed in its High Court attempt to prevent the programme proceeding.

12

5. As scheduled, the programme was broadcast by the respondent corporation and was received extensively in this and in the neighbouring jurisdiction. It was repeated at 12.25 a.m. on Friday 13 th October, and a transcript of its detail, together with additional material, were placed on the BBC's internet website. During the course of the transmission it was stated inter aliathat Mr. Murphy was a seasoned terrorist with previous convictions and that he had admitted to the gardaí that, on the eve of the bombing, his and another person's mobile phone were given to a named individual in the knowledge that the same "were being used to move bombs". A great number of other matters were also mentioned with repeated and detailed references being made to both the direct and surrounding circumstances of the bombing and the subsequent investigation thereof by the relevant authorities.

Proceedings before the Special Criminal Court
13

6. On 9 th January, 2001, Mr. Murphy the applicant issued a notice of motion against the BBC seeking the following relief:-

14

2 "(1)Leave to issue an order of attachment and/or committal against the British Broadcasting Corporation, its directors, managers, servants or agents pursuant to O. 44 r. 3 of the Rules of the Superior Courts, 1986 as applied by s. 41(4) of the Offences Against the State Act, 1939.

15

3 (2)Subject to the order sought at para. 1 an order of attachment and/or committal against the British Broadcasting Corporation its directors, managers, servants or agents pursuant to s. 43(1)(e) of the Offences Against the State Act, 1939.

16

4 (3)Directions as to the remedying of the effects of the contempt of court committed by the British Broadcasting Corporation, its directors, managers, servants or agents herein.

17

5 (4)Further and other relief."

18

This was grounded upon an affidavit of Michael Farrell sworn on 9th January, 2001. In that affidavit it was claimed inter aliathat, by the programme and the associated articles, the BBC sought to and did influence public opinion on Mr. Murphy's trial. Furthermore it was suggested that the published material proceeded on the assumption of his guilt, that its content had pre-judged the trial and that its content had conveyed that pre-judgment to the general public. Moreover, potential witnesses and persons generally were influenced in a manner prejudicial to the applicant. These and other matters led Mr. Farrell to the opinion that the accused might...

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