Court of Appeal Broadens Ambit of The Doctrine of Contempt of Court
By Darryl Broderick and Ciara Ní Longaigh
1 February, 2018
On 22 December 2017, Mr. Justice John Edwards delivered the Court of Appeal decision in the case of Director of Public Prosecutions v Independent News and Media PLC, Claire Grady, Stephen Rae and Internet Interactions Limited. The decision explored the doctrine of contempt of court and indicated that a publication may be found to be in contempt of court even where the material published does not deal directly with the subject of the charges against an accused. While Justice Edwards acknowledged that Kelly v O’Neill1 remains the leading authority in terms of balancing constitutional rights, he was cognisant of the judicial shift away from the hierarchy of constitutional rights and examined the consequential impact on the offence of contempt of court.
Independent News and Media PLC, Claire Grady, Stephen Rae and Internet Interactions Limited (the “Appellants”) appealed the decision of Judge O’Malley of the High Court who found the first, third and fourth named appellants guilty of contempt of court in publishing certain material in the Irish Independent newspaper. Judge O’Malley was of the view that the material in question was calculated to create a real risk of an unfair trial for a particular individual. Appeals against the sentence and the granting of injunctive relief were also lodged, however, Judge Edwards proposed that for the purposes of this appeal, he would only deal with the appeal against the conviction for contempt of court.
Balancing of Constitutional Rights
The key issue for consideration was whether or not the published material presented any real risk to the fairness and integrity of the trial of the individual concerned which would justify invoking the doctrine of contempt of court. Judge Edwards acknowledged that Judge O’Malley had endeavoured to engage in a balancing act between an individual’s right to be tried in due course of law as guaranteed in Article 38.1 of the Constitution and the appellants’ claim that the court should uphold their right to freedom of expression guaranteed in Article 40.6.10. He recognised that Kelly v O’Neill is the leading authority and while he agreed with Judge O’Malley’s use of Judge Denham’s test in Kelly v O’Neill, he believed the conclusive test is whether there is a real risk that the accused would not receive a fair trial. He was of the belief that the material in this case did in fact present a real risk to the fairness and integrity of the trial and he did not believe that the material in question should be protected by Article 40.6.10.
Judge Edwards recited the words of Judge Denham in Kelly v O’Neill and accepted that where there is doubt as to the balance between the protection of the administration of justice and the right of freedom of expression, the balance should be tipped in favour of the administration of justice. However, he also noted the recent decision of Gilchrist v Sunday Newspapers Limited and Ors2 .Judge Edwards interpreted Judge O’Donnell’s judgment in that case as movement away from the long-established view that a hierarchy of constitutional rights exists and suggested that a more novel approach may involve taking account of all “potentially relevant values, interests and material considerations”. He noted that previous case law had indicated that the accused’s right to a fair trial might be regarded as being superior to other rights but he believed that taking a wide range of factors into account may be more conducive to finding the right course of action.
Contempt of Court
Judge Edwards referred to the judgment of Judge Keane in Kelly v. O’Neill and noted that the ultimate test in determining whether the offence of contempt of court has been committed is whether the publication was calculated to create an interference with the administration of justice. He agreed with long-standing authorities and contended that strict liability applies to the offence. As it is not necessary to show actual interference, he explored the interpretation of “calculated” and concluded it should be taken to mean “likely to”. Judge Edwards considered the actual mens rea of the crime at issue as he believed this should be one of the factors taken into consideration. In applying this approach to the present case, he explored the mens rea of conspiracy to defraud, which was the offence with which the accused was charged.
While the material published in the present case did not deal with the subject of the charges against the accused, Justice Edwards was of the view that the material did tar the individual in questioning his general morality and ethics and portrayed him as an individual “without a functioning moral compass”. He acknowledged that the individual in question was not alone and that others were implicated in the material published. Given the mens rea of the charge against the individual, he agreed that the material published would portray a dishonest individual.
There were a number of other alleged errors on the part of Judge O’Malley which Judge Edwards briefly addressed. The Appellants argued that a charge to the jury would have been sufficient to prevent any prejudice. Judge Edwards disagreed with this contention and believed that the fact that a trial can continue fairly despite the offending comment is irrelevant to the question of whether contempt of court has occurred. The Appellants also argued that other publications in the public domain at the time should have been considered. In this regard, Judge Edwards contended that the date of the publication of the material in this regard is crucial and as the offending material had been published after the individual in question was charged and in the knowledge of what he was charged with, it was outright contempt.
As the “lifeblood of democracy”, Judge Edwards was of the view that the right to freedom of expression protected by Article 40.6.10 should be respected and only proportionate interference should be permitted where there is a reasonable possibility of a risk to the administration of justice. In the present case, he believed that the story could have been adequately reported without naming the individual concerned. Judge Edwards was clear that he was not expressing a view on whether the concurrent injunction was proportionate in terms of the scope of the restriction that it imposed and dismissed the appeal against the conviction for contempt of court.
The decision carries considerable weight as it suggests a definite judicial shift from the traditional hierarchy of constitutional rights, particularly in relation to the doctrine of contempt of court. The judgment illustrates that many factors may be at play and a harmonious construction of the competing rights may be more appropriate than a balancing act. It also puts news editors and others in similar positions on notice of the risks in publishing anything negative about an individual who is the subject of existing criminal charges, even where the article does not deal with matters surrounding the events giving rise to the charges.
As an aside, the Contempt of Court Bill 2017 was presented to the Dáil Eireann in October 2017 and seeks to clarify the law on contempt of court in Ireland. The Bill is significant as it puts the offence of contempt on a statutory footing and provides a legal definition for both civil and criminal contempt. The Bill, as it currently stands, takes a particularly modern approach to the concept of contempt of court and allows judges to enforce orders in relation to online content. The Bill also includes a number of defences designed to protect an individual’s constitutional right to freedom of expression. While the Bill has made it through the First Stage of the Dáil process, it remains to be seen if the judge-made law in this jurisdiction will soon be subject to a legislative overhaul.