Ireland: Court Of Appeal Broadens Ambit Of The Doctrine Of Contempt Of Court

Last Updated: 1 February 2018
Article by Darryl Broderick and Ciara Ní Longaigh

Introduction

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'Neill 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.

Background

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 Ors .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.   

Conclusion

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.  

Comments
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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions