Independent New & Media has lost, by a two-to-one majority, its appeal against a ruling that articles and commentary published by it in 2014 about certain events – which cannot be referred to by court order – were contempt of court.
On foot of an application by the Director of Public Prosecutions, the three-judge Court of Appeal ruled that, because of potential risk of predjudicing forthcoming criminal trials, details of the events at issue cannot be published.
Ms Justice Mary Finlay Geoghegan, sitting with Mr Justice Gerard Hogan and Mr Justice John Edwards, said the court was releasing redacted judgments only. Its unredacted judgments will be provided to the parties and remain on the court file but cannot be published pending further order, she directed.
The DPP had brought the contempt proceedings in response to which Independent Newspapers denied contempt but agreed to take the relevant articles off its website pending the court determinations.
Dismissing the newspaper's appeal against a High Court finding of contempt, Mr Justice Edwards, with whom Ms Justice Finlay Geoghegan agreed, found the articles amounted to "egregious and blatant" contempt, particularly because they were published in 2014 after a certain person was charged. Mr Justice Hogan dissented.
Risk to trial
Mr Justice Edwards said the publication created a real risk of prejudicing a particular trial and the matter could have been adequately reported without any need to name the particular person, and certainly without also offering, expressly or by implication, “gratuitous judgments as to the ethics, morality and honesty of certain persons without discrimination”.
He rejected arguments that the findings of contempt were disproportionate to any risk to the trial or could have a “chilling effect” on discussion in the media of matters of “undoubted public importance”.
Had Independent Newspapers chosen to do so, they could have reported the great majority of their story in a “matter-of-fact way and without recourse to the accompanying prejudicial commentary”.
Addressing arguments that similar publications by other entities covering similar ground were not made subject of contempt proceedings, he said those other publications were all published before the person was charged.
“The fact that a fire may already exist does not justify the further feeding of that fire, much less the throwing of petrol upon its flames.” This publication could only have had the effect of “significantly adding” to any existing potential for prejudice.
He agreed with Mr Justice Hogan that the constitutional right to freedom of expression is the “lifeblood of democracy” and any interference with that for the purpose of vindicating the right to a fair trial must be proportionate to the risk involved. The risk to a fair trial must be a real one and, in this case, he was satisfied it was.
Voice of dissent
Dissenting, Mr Justice Hogan said the articles were “in reality just another in a long line of publication which were highly critical of certain individuals”, “added but little to the welter of commentary that had gone before” and he did not consider they presented any real risk to the fairness and integrity of the particular trial.
In the absence of such risk, the publication of the material was constitutionally protected by the guarantees of freedom of expression set out in article 40.6.1 of the Constitution, he said.
“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 antibacterial precautions must be taken.”
Article 40.6.1 placed a very high value on such newspaper articles and commentary, the thrust of which was criticism of government policy, he said. If such publication amounted to contempt, that would have had a “chilling effect” on discussion of the events involved and their wider implications.
The matter has been adjourned to next month to address costs and the newspaper's outstanding appeal against the €50,000 fine imposed on it, plus a €100 nominal fine on editor-in-chief Stephen Rae, over the contempt.
