Supreme Court reserves its judgment in appeal against drug-case contempt of court

An article in The Irish Times about a Dublin criminal, Eamonn Kelly, published after his conviction in 1993 on drugs charges but before sentence to 14 years' imprisonment, was not a contempt of court because it did not affect the sentencing judge's view or the administration of justice, counsel representing the editor of The Irish Times and a journalist on the newspaper told the Supreme Court yesterday.

Kelly (50), formerly of Furry Park Road, Dublin, was convicted on May 15th, 1993, of having £500,000 worth of cocaine in his possession for supply in September 1992. On May 27th, 1993, he was jailed for 14 years. A similar sentence was imposed after a retrial.

Kelly had successfully argued before Dublin Circuit Court that an Irish Times article of May 17th, 1993, headlined "Gardai believe Kelly was involved in other major crimes", amounted to contempt of court. He claimed the article was "a grave and scandalous contempt" and "completely untrue" and that a dispassionate assessment of his case had been destroyed.

The then Circuit Court judge, Judge Cyril Kelly, decided that, while he, as trial judge, was incorruptible, the article was a contempt, and he fined the editor of The Irish Times, Mr Conor Brady, and the author of the article, Paul O'Neill, £5,000 each.

Mr Brady and Mr O'Neill appealed the matter to the High Court, which in 1997 referred two points arising from it to the Supreme Court. The hearing on those matters concluded before the five-member court, presided over by the Chief Justice, Mr Justice Hamilton, yesterday afternoon, and judgment was reserved.

Question one asks whether it can be a contempt of court to publish the article complained of after a criminal trial has passed from a jury and where the remainder of the hearing will take place before a judge sitting alone.

The second question posed is whether, given the constitutional right of freedom of expression of the press, the publication of the article complained of could ever constitute a contempt of court when it was published after conviction and before sentencing.

Mr Richard Law Nesbitt SC, with Mr Hugh Mohan, for Mr Brady and Mr O'Neill, said the answer to question 1 should be no. He submitted that the court did not have to deal with question 2, but, if it did, that answer was also no.

He read an affidavit in which Mr Brady said both he and Mr O'Neill were distressed and disturbed by the assertion by Kelly that they were, or intended to be, contemptuous of court.

Following the conviction of Kelly, Mr Brady said that he, The Irish Times and Mr O'Neill understood the proceedings had passed from the hands of the jury and believed themselves free to comment upon what they believed to be a matter of public importance, namely the fact of the jury's decision and the history of Kelly's previous court appearances and actions which had involved him in legal proceedings.

Mr Nesbitt said the court should address the issue of what a criminal contempt was and also address the balance between protecting the rights of an accused and the right of freedom of expression of organs of public opinion.

He said the article complained of was a strong piece of journalism, but it did not, nor was it intended to, interfere with the administration of justice, and there was no serious or real possibility of such interference. It did not suggest that the trial judge should act in any particular way.

Mrs Justice Denham, in a Law Reform Commission consultation paper on contempt of court, had addressed contempt in a situation where a person was convicted but not yet sentenced. While a judge was less likely to be influenced by extraneous matters, it was too narrow just to focus on the possibility of influencing a judge. The court must not only be free from any extraneous influence: it must be seen to be free.

Mr Nesbitt accepted that justice must be seen to be done, but he submitted that justice had been done in the case. Neither side was arguing that the sentencing judge was affected by the article. Judges were professionals trained to take only the evidence into account.

There was also an issue of common sense and a belief in the ability of the public to do the right thing, he added. The courts should not intervene if there was no risk of ill or contempt.

Mr Rex Mackey SC, for Kelly, said there was no pressing social need for publication of the article about his client. The article involved speculation of the most extraneous nature and the whole tenor of it was intended to influence the trial judge. It had stated that Kelly had been involved in the drugs trade for some time and had featured in investigations into other crimes. There was no evidence regarding these claims put before Kelly.

The administration of justice did suffer and one of the longest sentences was imposed.

Mr Mackey agreed that a similar sentence was later imposed following a retrial.

Mr Michael O'Higgins, also for Kelly, said the question was whether there was a real risk that justice had been prejudiced by the article, which was a subtle, but open, invitation to "throw the book" at his client. It spoke of the Garda spotlight falling on Kelly during investigations into offences including violent crime, fraud and drug-smuggling. This was as effective as putting "Lock Him Up For As Long As Possible" in six-inch letters.

He said the rights of the court, the accused and The Irish Times had to be taken into account. The administration of justice extended from charging through to sentence, and the principles of fairness must apply at all stages.

The court was entitled to make orders unfettered by any outside influence and a court had to be seen to extend justice. The accused was entitled to a fair trial and that included a sentence hearing. The Irish Times had no greater rights than ordinary citizens who would be guilty of contempt if they made remarks to a sentencing judge.

Mr O'Higgins noted that a number of politicians and others, in "hysterical articles", had last week urged the courts to impose certain sentences on those who pleaded guilty to the manslaughter of Det-Garda Jerry McCabe and that the Special Criminal Court had remarked in very unfavourable terms on such comments. This underlined the fact that courts must not only be free, but must be seen to be free, from any extraneous influences.