'Herald' case ruling clarifies law on criminal contempt of court

THE SUPREME Court has found in favour of the Director of Public Prosecutions (DPP) in an appeal against the High Court's rejection of contempt proceedings brought over reports in the Evening Heraldnewspaper about a man being charged with murder.

The ruling gives clarification of the law on criminal contempt of court.

One of the Supreme Court judges, Mr Justice Adrian Hardiman, also urged the Oireachtas to consider whether to enact new laws to replace the “complex and in some respects archaic” common law on contempt of court.

The law prohibiting prejudicial comment in a pending criminal trial protects “a very basic human and civil right” – to have guilt or innocence assessed by the proper tribunal, untroubled by outside pressure or public assertions to the effect a defendant is guilty or not, he said.

It was absolutely essential the courts should have a jurisdiction to protect the integrity of their proceedings against “loud and plangent assertions” made long before any trial begins of the guilt or innocence of a person.

Newspaper editors and others 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 vivid or lurid terms, he added.

Such views were rarely based on an examination of the evidence which would eventually come before the trial.

The five-judge Supreme Court yesterday allowed the DPP's appeal against the High Court's rejection of contempt proceedings against Independent Newspapers (Ireland) Ltd, then Evening Heraldeditor Gerry O'Regan and journalist Ann Marie Walsh, over articles in the Evening Heraldin December 2004.

The articles related to the appearance before the District Court of Patrick O’Dwyer (22), Shrohill, Ennistymon, Co Clare, on a charge of murdering his 17-year-old sister Marguerite, who was found battered and stabbed at their home in Ennistymon, Co Clare.

Mr O’Dwyer in 2006 became the first person in the State to be convicted of a killing on grounds of diminished responsibility arising from his suffering a mental disorder and is serving a six-year sentence. In May 2005, Ms Justice Elizabeth Dunne, while criticising aspects of the articles, dismissed the contempt proceedings.

Yesterday, Mr Justice Hugh Geoghegan, giving the Supreme Court’s judgment allowing the DPP’s appeal, said he was setting aside the High Court order on the ground that Ms Justice Dunne should have refused a direction sought by Independent Newspapers to halt the contempt proceedings.

However, the Supreme Court would not direct a fresh trial on the alleged contempt given the time that had elapsed and other factors, and would also refuse all further relief sought in the DPP’s appeal, he said. While the case was stale, it was important from the DPP’s viewpoint to establish the correct legal position.

The judge said the High Court had erred in two respects. In his view, there was clearly an arguable case for a conviction [of criminal contempt] having regard to the nature of the publication and, if there was a prima-facie case, the judge should have refused the direction sought.

Unfortunately, nowhere did she appear to have teased out whether there was at least a prima-facie case, he said. It appeared she had delivered what appeared like a final judgment on the contempt matter in the context of the direction application.

He stressed the Supreme Court could not itself make any finding on the contempt issue, or on any penalty to be imposed, as the trial of the contempt matter had been stopped at the stage of the direction application.

Even if the contempt issue had been decided after a full hearing, the High Court, not the Supreme Court, would have to first determine sentence, he added.

The second error arose because the trial judge should not have attached significance to the “so-called fade factor”, he said. While a fade factor (lapse of time between a publication and trial) might be relevant in an application to stop a trial on grounds of prejudicial publicity, it was not normally a relevant factor in a contempt motion.

A central issue in the appeal was whether the DPP could appeal at all to the Supreme Court against what Independent Newspapers had described as “an acquittal” on the merits in a criminal case.

Mr Justice Geoghegan ruled there is a right of appeal from a refusal of a motion for contempt, whether that refusal arose from a direction or otherwise, or whether or not a High Court judge was sitting with a jury on the matter.

He said a High Court judge, when hearing contempt proceedings, could sit with a jury in the case of a serious criminal contempt. Where there was controversy over actual facts, the facts could be determined by the jury, but the ultimate issue of whether a contempt existed was for the trial judge.