A Court of Appeal judge has concluded that a 2014 Irish Independent article created a real risk to the fairness of the pending criminal trial of John Bowe, and would dismiss the publishers’ appeal against a contempt finding. The judgment is Mr Justice John Edwards’s opinion; it records a disagreement with Mr Justice Gerard Hogan on whether the publication posed a real risk of an unfair trial.
The case concerns material published on 17 July 2014 under the headline “ANGLO THE NEW TAPES REVEALED”. At the time, Bowe had been charged with conspiracy to defraud and an offence under the Criminal Justice (Theft and Fraud Offences) Act 2001. His trial was scheduled to begin in January 2016. The High Court had found Independent News and Media plc, Stephen Rae and Internet Interactions Limited in contempt, ruling that the publication was calculated to create a real risk of an unfair trial.
Edwards considered the publication’s commentary as well as its accounts of recorded conversations between Bowe and former Anglo Irish Bank chief executive David Drumm. He said the coverage associated Bowe with alleged dishonesty, concealment and deceit among bank executives. One panel linked him to a reported conversation about a €7 billion figure sought in emergency loans from the Central Bank, and said executives “plotted to mislead authorities”. Edwards considered that this material could bear directly on charges involving dishonesty and conspiracy.
The appellants argued that most of the coverage did not concern the specific conduct charged, that a judge’s directions could protect a jury, and that similar material had already been published. Edwards rejected those points. In his view, a jury direction was not relevant to whether contempt had occurred, and earlier publications had appeared before Bowe was charged. He also reasoned that commentary about potentially dishonest conduct could prejudice a jury even if that material might be inadmissible at trial.
Edwards stressed that freedom of expression is a fundamental constitutional right and must be treated as equal in importance to the right to a fair trial. He concluded, however, that the risk here was real and that the contempt finding was proportionate. He would dismiss the appeal against conviction.
The judgment does not resolve the appeals against the fines or the injunction. Edwards expressly left those matters for further consideration and gave no final view on the injunction’s scope, although he said some form of injunction was required. His conclusion is his individual view in a divided appeal, not a statement that the Court of Appeal as a whole dismissed the conviction appeal.