THE COURT OF APPEAL
REDACTED VERSION Neutral Citation Number:  IECA 333
Finlay Geoghegan J.
Record No. 2016, 104
IN THE MATTER OF A CONTEMPT OF COURT AND IN THE MATTER OF AN APPLICATION PURSUANT TO ORDER 44 OF THE RULES OF THE SUPERIOR COURTS 1986
THE DIRECTOR OF PUBLIC PROSECUTIONS
- AND –
INDEPENDENT NEWS AND MEDIA PLC, CLAIRE GRADY, STEPHEN RAE AND INTERNET INTERACTIONS LIMTIED
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 21st day of December 2017
1. With a view to avoiding any possible prejudice to a pending criminal trial or trials, the full version of this judgment will not be published until the completion of these trials. This redacted version of this judgment may, however, be reported in full and will be published on the Courts Service website. The unredacted version of the judgment was delivered yesterday, 20th December 2017, but following an application in that behalf made on behalf of the Director of Public Prosecutions following the delivery of the judgment, the full version of this judgment lies currently under court embargo pending the outcome of certain criminal trials. The full version of this judgment will be published once these trials are completed. The fact that I am taking this step should not be understood as detracting in the least from the sentiments I express at paragraph 39 of this judgment.
2. In this application the Director of Public Prosecutions seeks orders of attachment and committal as against the defendants. The basis for the application is the publication by that newspaper of certain material relating to an individual who is currently awaiting trial by jury in the criminal courts amounted to a contempt of court.
3. The extent of the redactions are, of necessity, considerable and invariably affect the flow and the discourse and, doubtless at times, the comprehensibility of the judgment. I have, however, preserved as much of the background to the case recorded in the full judgment as possible. If, as a result, the judgment reads somewhat disjointedly and is oblique in places, I hope that I may nonetheless be pardoned given the special circumstances of how this judgment came to be delivered.
4. The The Irish Independent’s five page commentary on certain events which it published on a certain date in 2014 was acerbic, bitter, unsympathetic and unforgiving.
5. To the modern reader acquainted with contemporary journalism all of this might seem unexceptionable. The Irish Independent had secured a good story and was determined to exploit it for its own purposes. There was only one difficulty, however, namely, that a particular individual had already been charged in December 2013 with certain offences. A trial date had been scheduled for January 2016.
6. Following receipt of correspondence from the solicitors for the accused to the effect that the publication constituted a contempt of court, the Chief Prosecution Solicitor immediately wrote protesting that this publication was a contempt of court;
7. The respondents’ solicitors replied about an hour and a half later. The replying letter denied that anything in the articles or on the accompanying website interfered with the accused’s right to a fair trial. It was observed that nothing in the Chief Prosecution Solicitor’s letter had specified what aspects of the material had amounted to an interference with the accused’s right to a fair trial. The solicitors inquired whether it was to be suggested that no articles whatever concerning these events was to be published while criminal prosecutions were pending.
8. As it happens, the DPP had applied to the High Court later that day for short service of the Ord. 44 contempt motion and the respondents were informed that such liberty had been granted. The DPP then set out her position. She did not demand that no articles concerning these topics be published: it was rather the nature of this particular publication to which she objected.
9. It is next necessary to say something about the respondents to this application. The first respondent is the parent company of the publisher of The Irish Independent. The second respondent, Ms. Claire Grady, was the then editor of the newspaper. She has, however, since left that position and no further order has been sought against her. The third respondent is the editor in chief of the newspaper. The fourth respondent is a wholly owned subsidiary of the first respondent. This company owns and operates The Irish Independent website.
The judgment of the High Court
10. In a judgment delivered on the 24th April 2015 O’Malley J. found that the respondents were guilty of contempt of court. (Only a redacted version of the judgment was made publicly available at the time given the fact that the trials were pending, but this Court has been supplied with the full version).
11. In essence O’Malley J. found that the publications amounted to a contempt of court because they associated the accused with the offences with which he had been charged:
12. Following the delivery of that judgment, O’Malley J. heard submissions as to sentence. On 9th June 2015 the judge imposed a fine of €50,000 on each of the corporate defendants and imposed a purely nominal fine of €100 upon Mr. Rae. These penalties were stayed pending an appeal this Court. The respondents have now appealed to this Court against both conviction and penalties.
The submissions of the parties
13. The applicant’s case is that the publications in question had the potential to prejudice the fair trial of the accused, in particular by portraying the individuals in question in an unflattering light and by associating him so directly with what many would regard as the objectionable behaviour. The publication(s) in question therefore amounted to a contempt of court. The intentions of the respondents were irrelevant in this regard. Nor did it matter that the publication did not, in fact, interfere with the capacity of the criminal justice system to ensure a fair trial.
14. The essence of the respondents’ defence is that the articles in question constitute protected speech for the purposes of Article 40.6.1 of the Constitution, namely, the right of citizens “subject to public order and morality”, to express “freely their convictions and opinion.” They also point to the fact this same Article acknowledges the special role of the media in the education of the public opinion and that it seeks to ensure that the rightful liberty of expression of the media (including criticism of Government policy) is maintained. The respondents say that their publication did just that by informing the public of matters of considerable public importance and, in essence, criticised Government policy (in the broadest sense of this term) by exposing what it claimed was unethical conduct of an entity subject to the strictures of a form of supervision established by the Oireachtas and the Government.
15. The respondents disclaimed any intention to prejudice any pending trial and contended that, not least by reason of the welter of adverse publicity which the actions of Anglo and its executives had already generated, there was nothing in these publications which could realistically be said to prejudice a fair trial.
Pre-trial adverse publicity and contempt of court
16. As many have previously observed, the use of the phrase “contempt of court” is something of a misnomer. In this context, at least, it has nothing to do with judges being offended by media comment or from some exaggerated sense of judicial lése majesté. Contempt of court it is rather entirely concerned with ensuring that the fairness in the administration of criminal justice will not be compromised. As Hardiman J. put it in Director of Public Prosecutions v. Independent Newspapers (Ireland) Ltd.  IESC 20,  3 I.R. 598, 601:
17. Second, it is also clear that the fact that the trial can nonetheless fairly and safely proceed, the offending comment notwithstanding, is, as such, irrelevant to the question of whether there has been a contempt of court. In particular, the fact that a particular publication tends to fade from public memory cannot, in itself, take from the fact that the offending publication can constitute a contempt of court. As Hardiman J. said in Independent Newspapers ( 3 I.R. 549, 601):
“On the contrary, the law which prohibits prejudicial comment one way or the other in a pending criminal trial protects a very basic human and civil right: the right to have the guilt or innocence of persons accused of crime assessed by the proper tribunal, untroubled by outside pressures or by public assertions, express or implied, to the effect that the defendant is or is not guilty or should or should not be convicted.
Many Irish people will remember how strange and how utterly unfair it seemed, thirty years ago, when the media in another jurisdiction appeared, with impunity, to assume the guilt of certain Irish people facing criminal charges. It is no less inappropriate in this jurisdiction. In relation to almost every sort of criminal charge there are some persons who will be gratified or advantaged if the alleged criminals are “led out in handcuffs”. But such persons, especially if they are newspaper editors or others who are powerful or influential in the shaping of public opinion, must take care not to pollute the fountain of justice by expressing, or seeming to express, a view as to the guilt or innocence of accused persons, especially in lurid or vivid terms. Apart from anything else, such views are rarely based on an examination of the evidence which will eventually come before the trial court.”
18. The leading authority in this jurisdiction remains that of Kelly v. O’Neill  IESC 81,  1 I.R. 354. In that case the applicant in the contempt proceedings was an accused who had been convicted of drugs offences following a trial with a jury in the Circuit Court. Between the date of his conviction and his sentence The Irish Times published an article under the headline “Gardaí believe Kelly was involved in other major crimes.” The article also gave details of claims from “Garda sources” which had not been disclosed in the course of the criminal trial. These included allegations that he had been personally involved in violent crime and that he “mixes with a group of criminals which has been involved in a range of illicit activities, including fraud and kidnapping.”
“It may be a matter of great significance on an application to prohibit a trial on the ground of prejudicial publicity, but that is an application of quite a different sort from the present. The question of whether a publication is or is not a contempt of court falls to be decided as to of the time it was published and to that issue the fade factor is not relevant at all. On the other hand, on an application to prohibit a trial, it may be of the greatest significance and may in particular suggest that an adjournment of the criminal proceedings is the appropriate remedy. But I would also observe, as I believe I have done elsewhere, that the question of the “fade factor” is often dealt with on both sides in an impressionistic and unscientific fashion but, of course, the question of what evidence is deployed on these issues is a matter for the parties.”
19. The trial judge imposed a fine of IR£5,000 for contempt of court. This newspaper appealed this fine to the High Court which, in turn, stated a case for the opinion of the Supreme Court.
20. The Supreme Court stressed that the contempt jurisdiction did not cease simply because the publication was only published after the jury verdict. The ratio of the judgment is captured by the following pithy head note in The Irish Reports:
21. As Keane J. observed ( 1 I.R. 354, 374):
“…..freedom of expression was not an absolute right and the temporary nature of the limitation in cases of sub judice contempt was not a disproportionate restriction when weighed against the damage which could be done to the administration of justice from unrestricted comment. The contempt jurisdiction could not be lightly invoked by the courts as the right to freedom of expression should only be curtailed to the extent necessary to protect the administration of justice.”
“the contempt of court jurisdiction should not be lightly invoked by the courts: the freedom of expression guaranteed by the Constitution should not be curtailed save to the extent necessitated in protecting the administration of justice.” (emphasis supplied)
22. Given that the Supreme Court was answering a case stated, the Court confined itself to answering affirmatively the questions posed as to whether the article was capable of being regarded as a contempt of court with the Court saying that, in the words of Denham J., it was for the trial judge ( 1 I.R. 354, 370) to decide “taking into account all the circumstances (some of which may not yet have been established), whether there has been a contempt of court.”
23. In his judgment Keane J. explained the range of factors which the trial judge might wish to take into account ( 1 I.R. 354, 379-380):
24. Judged by these comments, it is probably fair to say that the Supreme Court considered that the publication in question was a marginal case, although both Denham J. and Keane J. made it clear that it had been open to the trial judge in that case to find that there had been a contempt once the matter.
“…I have no doubt that [an article] which simply summarised the facts of the case as they had been presented to the jury could not be regarded as calculated to interfere with the administration of justice and one would have little difficulty in reaching the same conclusion where the article also included background material of an innocuous nature concerning the accused. Different considerations, as I have already suggested, might apply to an article which urged a court in strident and intemperate terms to adopt a particular approach in sentencing the convicted person.
The publication with which we are concerned falls into neither category. It does not urge the imposition of any particular sentence. But it does go considerably further than simply recounting the facts adduced in evidence at the trial and adding innocuous background material concerning the accused. It puts into the public domain allegations derived from “Garda sources” concerning the applicant which it is not suggested were adduced in evidence at the trial or would be admissible in evidence at the sentencing hearing and which, if any regard were had to them, could only be seriously damaging to him.
There are other features of the article which would have to be taken into account if the conclusion were reached that it was calculated to interfere with the administration of justice. First, the circumstances of the case, particularly the applicant’s previous criminal record, indicated that the likelihood of the publication being seen to influence the sentence, let alone actually influence it, was clearly of a low order. Secondly, no notice to cross-examine the second named respondent on his affidavit appears to have been served and, if that remained the position, the trial judge would be entitled to conclude that the article had been published in good faith on a matter of public interest without any intention of influencing the court. That in turn would raise the question as to whether the offence of criminal contempt had been committed at all, given the absence of any guilty mind or mens rea on the part of the respondents. (The respondents could also, of course, point to the uncertainty reflected by this litigation as to whether press comment after the verdict but before the sentence was imposed was in contravention of the sub judice rule.) While undoubtedly the generally accepted view of the law has hitherto been that the offence is absolute in its nature and does not require the establishment of mens rea one certainly could not exclude the possibility that, in the absence of any modem Irish authority, the courts in this country might have come to the conclusion that mens rea was a necessary ingredient of the offence. On any view, the circumstances of this case would clearly have called for the imposition of no more than a modest penalty and, for the reason I have suggested, the respondents might have been found innocent of any contempt.
The questions the court has been asked in this case are not, however, whether, in the light of the circumstances to which I have referred, the High Court would have been entitled to acquit the respondents of the charge of criminal contempt or whether the factors to which I have referred could be taken into account by the court in imposing a penalty. The first question this court has been asked is, in effect, whether the respondents must be acquitted of the charge of criminal contempt solely by reason of the fact that the jury had completed their consideration of the case. If the answer to that question is yes”, the same conclusion would follow no matter how intemperate the terms of the article were. It would equally follow that no contempt had been committed in a case where the article contained the grossest falsehoods about the convicted person which were deliberately published with a view to influencing the sentence. It would even be the result if the publication were part of what was described in R. v. Duffy & Ors. Ex Parte Nash as a “deliberate campaign” to influence the court and contained material, not merely false, but known to be false. Such conduct would attract no form of criminal sanction. The only redress the law would afford would be a civil action for defamation at the instance of the convicted person which, in the circumstances, would hardly be regarded as a particularly effectual remedy or, indeed, any form of remedy.”
Application of the principles in Kelly v. O’Neill to the present case
25. If, therefore, one endeavours to apply the principles in Kelly v. O’Neill to the present case, the fundamental question confronting the Court is whether there was a real risk that the publication(s) in question would prejudice the trial of certain persons. If there was no such real risk then it is clear that the publications in question must be regarded as protected speech for the purposes of Article 40.6.1 and that there was no contempt.
26. Admittedly, we have not, I think, the same respect for the constitutional protection of free speech which has been one of the great glories of the U.S. constitutional tradition since the days of Holmes and Brandeis. It is also true that, as the Supreme Court has recently explained, Article 40.6.1 of the Constitution does not protect “calumny and detraction”: see McDonagh v. Sunday Newspapers Ltd.  IESC 46,  2 I.L.R.M. 217, 233 per Charleton J. (This statement was, I think, fundamentally a metaphorical way of saying that the right of free speech is not and could not be regarded as absolute). But the right freely to speak one’s mind and to comment on the public affairs of the day is essential to the rule of law and to the democratic nature of the State envisaged by Article 5 of the Constitution.
27. Looking even beyond the language of Article 5 and Article 40.6.1, the entire system of government created by the Constitution – ranging from the electoral system to the referendum process – presupposes that, as I put the matter in my judgment in the High Court in Doherty v. Referendum Commission  IEHC 211,  2 I.R. 594, 694, this is reflected “by urging the citizenry to engage in robust political debate so that the forces of deliberation will prevail over the arbitrary and irrational so that, in this civic democracy, reasoned argument would prevail in this triumph of discourse.”
28. What, therefore, is not in dispute is the very high value which Article 40.6.1 places on newspaper articles and commentary of this kind. Information concerning the background to the criminal allegations is part of the education of public opinion envisaged by Article 40.6.1. The associated commentary can be said to be part of the criticism of Government policy in the broadest sense of that term, since the entire thrust of these articles was the criticism of what the writers perceived as the unacceptable nature of these practices, itself said to be a product of a lax regulatory environment.
29. Returning now to the fundamental question: did the publications in question pose a real risk to the fairness of the pending trial? One can usefully compare and contrast the facts of Kelly v. O’Neill with the facts of the present case, with particular reference to both timing, the contents of the publication and context.
30. It is true that in contrast to Kelly, the publication here was just after the accused had been charged, so that the possibility of influencing a jury trial was still real. This was in contrast to the position in Kelly where the jury verdict had just been delivered. But, critically, the trial in the present case was still some eighteen months away at the date of the publication in question. As Denham J. acknowledged in Kelly, the timing of any publication in this context is of “great importance”, with the time “immediately prior to the jury trial is very sensitive”: see  1 I.R. 354, 368. This publication was therefore well distant from any immediate jury trial. This, of course, does not mean that no contempt of court was possible, but this issue it rather goes to making an overall assessment of the risk to the integrity of the trials by reason of The Irish Independent articles.
31. So far as the contents of the publication is concerned, it is clear that the publication at issue in Kelly did not shirk from publishing allegations of grave criminal behaviour such as violent crime, drugs importation on a large scale, fraud and kidnapping. That cannot be said in the present case, because there are no direct allegations of criminal conduct contained in the publication on the part of the accused. Of course, as I have already indicated, the accompanying commentary was far from flattering and it cannot be said that the material which formed the background to the articles portrayed either man in a positive light.
32. The worst that might, however, have been said about either accused is as follows. [Further details are contained in the unredacted judgment which will be published following the completion of the criminal trials.]
33. It must, however, be observed that the publications in question did not, as such, allude to the fact that such conduct was potentially criminal. The conduct was, accordingly, not presented by the newspaper as criminal as such, but rather as unethical. Here again, however, there is rather a wide gulf between what was published in Kelly and what was published in the present case.
34. The context of the two publications is also quite different. The publication in Kelly concerned an individual who was admittedly involved in a form of organised crime in Dublin. He was, nonetheless, for the most part an anonymous figure unknown to the general public. The offending article was published in the short interval between the date of conviction (15th May 1993) and the scheduled sentencing date (27th May 1993). The Irish Times would accordingly have been quite free to publish these details had it just waited for a period of about twelve days until sentence had been pronounced. The fact, moreover, that the accused in that case was largely anonymous and unknown to the wider public meant that the potential risks posed by the publication of highly particular, fact specific allegations personal to this accused made the risk of a potential contamination of the sentencing process all the greater.
35. By contrast, the events in question have been endlessly discussed in numerous books, articles, television documentaries, radio programmes, opinion pieces and reams of newspaper articles. Indeed, as the respondents observed, much of what was discussed in these publications had already long since entered the public domain.
36. Against this particular background, The Irish Independent’s journalistic coup in publishing certain details added but little to the welter of commentary which had gone before. I appreciate – and commend – the DPP’s proper concerns for the integrity of the trial and ensuring that the accused secured a fair trial. But for my part I doubt if any juror would have paid any real attention to this publication and I consider that the average juror would regard it as just simply another article in a long and apparently endless line of publications concerning these events..
37. Viewed thus, therefore, it is the surfeit of publications concerning these events which take this case into a very different category. Any jurors hearing the criminal prosecution would, of course, have to be warned to base their decision simply on the evidence which they heard at the trial. But it seems unrealistic to say that this publication – of all publications concerning these events – could have made all the difference or, for that matter, any difference. It might, of course, have been different had, for example, the publication in question asserted that the accused was guilty as charged or had urged the court to impose a condign sentence in order to make an example of him. But where I respectfully differ from the trial judge is that I think that the risk of the trial being contaminated by a publication of this kind in this context is so low that the real risk test cannot be said to be satisfied.
38. A further consideration, to my mind, is that if this publication amounted to contempt it would have had a chilling effect on all discussion regarding these events and its implications of this for the wider economy and society. It would be hard to say where the possible boundaries of contempt lay and newspapers and other media might well refrain from discussing these issues for fear of falling foul of the law of contempt. It is true that in her judgment O’Malley J. concluded that it would be:
39. Yet it must be recalled that the Irish Independent publications made no reference to any pending criminal trials and nor was there any direct suggestion of criminal conduct. It revealed no information directly concerned with the offences with which the accused had been charged and there was no suggestion that the accused were guilty of these offences. If The Irish Independent’s publications amounted to contempt, the same might also be said with as much justification of almost any publication which was critical of certain other persons or which discussed certain events forming the background to this trial. Unlike, moreover, the facts of Kelly v. O’Neill - where the newspaper simply had to hold off publication for a week or two pending sentence – the accused’s trial was not scheduled to start for another eighteen months.
“..... both wrong and futile for the courts to attempt to impose a general limitation on such discussion by reference to the ongoing investigations, whether civil or criminal, or by reference to standards of sobriety and taste.”
40. Free speech is the lifeblood of democracy and the democratic, rule of law based State envisaged by Article 5 of the Constitution. While the right to a fair trial must naturally be protected, we cannot live in some sort of antiseptic and sterile society where robust comment on public affairs is treated like some kind of hostile germ against which the most elaborate anti-bacterial precautions must be taken. The courts would accordingly be failing in their duty to uphold the substance of the right of free speech in Article 40.6.1 of the Constitution – not least when viewed through the prism of Article 5 - if they did not protect publications of this kind, save where a restriction of this right was objectively necessary in the interests of securing a fair trial. For all the reasons set out in this judgment I do not consider that any such real risk to the integrity of the trial was presented by The Irish Independent’s articles and the associated commentary.
41. In all the circumstances, therefore, I am of the view that both the content and context of this publication took this particular case well outside the parameters of Kelly v. O’Neill. Given that these publications were in reality just another in a long line of publications which were highly critical of certain individuals, I cannot say that it presented any real risk to the fairness and integrity of the trial which was then pending. In these circumstances, and absent any such risk, the publication of this material was constitutionally protected by the guarantees of Article 40.6.1 of the Constitution.
42. Although I differ only with hesitation from the views just expressed by my colleagues, it follows, nonetheless, that for the reasons stated, I would allow the appeal.