Title: DPP -v- Independent Newspapers (Ireland) Ltd & Ors. SUPREME COURT:The majority judgments were given by Mr Justice Geoghegan and Mr Justice Fennelly on March 5th 2008, Chief Justice Murray and Mr Justice Finnegan concurring. Mr Justice Hardiman gave the minority judgment.
JUDGMENT
The issue being examined was the specific one as to whether the Supreme Court had jurisdiction to hear an appeal from the High Court of a decision on criminal contempt of court, or whether the High Court was at the time acting as the Central Criminal Court, from which there could not be an appeal to the Supreme Court. The majority of the Supreme Court held that the High Court in this instance was not acting as the Central Criminal Court.
BACKGROUND
The case concerned the trial of Patrick Dwyer, who appeared in Ennis District Court on December 1st, 2004 charged with the murder of his sister, Marguerite. Coverage of the case in the Evening Herald led to the DPP bringing contempt proceedings against Independent Newspapers on the basis that the material published was "calculated to interfere with the course of justice . . . and to prejudice the fair trial of Patrick Dwyer". The DPP sought the attachment and committal and/or the sequestration of assets of the respondents.
His application was heard in the High Court before Ms Justice Dunne in May 2005, and on May 3rd Ms Justice Dunne delivered a written judgment dismissing the DPP's application and refusing to grant him the relief sought. In June the DPP sought to appeal that decision to the Supreme Court.
The respondents claimed that the decision could not be appealed to the Supreme Court, on the grounds that the accusation was of criminal contempt, with penal sanctions, and so Ms Dunne was sitting as a judge of the Central Criminal Court. Its decisions could only be appealed to the Court of Criminal Appeal, not to the Supreme Court. Therefore the Supreme Court lacked the jurisdiction to hear the appeal.
The court decided to consider this as a preliminary issue.
DECISION
Mr Justice Fennelly said that the entire issue depended on whether Ms Justice Dunne was sitting as a judge of the Central Criminal Court.
Central to this was the correct interpretation of section 11 of the Criminal Procedure Act 1993, along with section 11 of the Courts (Supplemental Provisions) Act of 1961.
The right of appeal to the Supreme Court from the Central Criminal Court was abolished by the 1993 Act. The 1961 Act sets out the jurisdiction of the Central Criminal Court.
He acknowledged that a court, in exercising its contempt jurisdiction, is dealing with a criminal matter, with sanctions appropriate to criminal acts. However, he said that no-one thought that Ms Justice Dunne, in hearing the summary application for sanction for criminal contempt, was acting as a judge of the Central Criminal Court.
The Central Criminal Court has responsibility for dealing with serious crimes on indictment, before a judge and jury. Criminal contempt is tried summarily, without a jury. "The right to appeal from conviction in the Central Criminal Court to the Court of Criminal Appeal applies only to persons convicted on indictment . . . It is clear that a person found to have been in contempt of court has no right of appeal to the Court of Criminal Appeal," he said.
If the respondents were right that there could be no appeal of their acquittal to the Supreme Court, then there could be no appeal of a conviction either, so no avenue of appeal against conviction remained open, thus abolishing the right of appeal.
"I do not believe that applications for attachment or committal . . . come within the jurisdiction of the Central Criminal Court. It follows that, since Dunne J was not exercising the jurisdiction of the Central Criminal Court, S 11 of the Act of 1993 does not prevent appellant from appealing to this court," he concluded.
Mr Justice Geoghegan agreed, stating: "There is nothing in the section which indicates that there was any intention to change the long established summary procedures (which were intended to deal with urgent situations) in relation to criminal contempt.
"Contempt motions were never dealt with in the Central Criminal Court and indeed there would have been administrative problems if they were."
Adopting a purposive approach to interpretation, he said it was reasonable and appropriate to interpret section 11 as not including summary applications for attachment or committal to the High Court.
In his minority judgment, holding there was no right in this case to appeal to the Supreme Court, Mr Justice Hardiman said that the High Court, in exercising a criminal jurisdiction, was the Central Criminal Court. Whether or not there was a jury was not material. The defendants were subjected to a criminal trial in the High Court, in which, had they been convicted, they might have been imprisoned for a length of time and deprived of their property without limitation on the amount. They were acquitted. "It is an utterly novel proposition that an acquittal in those circumstances can be the subject of an appeal."
He said, however, that the same chain of reasoning would exclude any appeal from a conviction for contempt, or any appeal in other circumstances, like against an order for costs. "This is a matter for urgent legislative attention," he said.
Solicitors:Chief Prosecution Solicitor (for the DPP); Simon McAleese Solrs,Upper Pembroke Street, Dublin. ( for the respondents)
Counsel for the DPP:Feichin McDonagh SC and Tom O'Malley BL.
Counsel for the Respondents:Shane P Murphy SC and Paul Anthony McDermott BL