The Court of Appeal allowed an appeal by Independent News and Media plc, newspaper editors and the operator of The Irish Independent website against findings of contempt over articles published while criminal charges against former Anglo Irish Bank executive John Bowe were pending.
In a judgment delivered by Mr Justice Gerard Hogan on 20 December 2017, the court held that the publications did not create a real risk to the fairness of Mr Bowe’s trial. Hogan J said the articles were protected by the constitutional guarantee of freedom of expression.
The articles, published on 17 July 2014 under the title “Anglo: the New Tapes Revealed”, included recordings of conversations between Mr Bowe and former Anglo chief executive David Drumm. The judgment describes discussions about buying back the bank’s bonds and how to present the bank’s funding difficulties to its board. It says the coverage portrayed the executives unfavourably but made no direct allegation that either had committed a crime.
Mr Bowe had been charged in December 2013 with conspiracy to defraud and false accounting. The charges related to a transaction between Anglo and another credit institution on 30 September 2008. The prosecution alleged the transaction created a false and misleading impression of the bank’s deposits. His trial was scheduled for January 2016, about 18 months after the articles appeared.
The Director of Public Prosecutions brought contempt proceedings, arguing the coverage could prejudice the trial by associating Mr Bowe with dishonesty. In April 2015, the High Court found the respondents guilty of contempt. It fined each corporate respondent €50,000 and imposed a nominal €100 fine on Stephen Rae. Those penalties were stayed pending the appeal.
Hogan J acknowledged the importance of protecting a fair trial but said the articles appeared against years of extensive public coverage of Anglo and its executives. In his view, this publication added little to what was already in the public domain, did not say Mr Bowe was guilty, and was published well before the scheduled trial. He concluded the risk of trial contamination was too low to meet the real-risk test.
The judgment says Hogan J would allow the appeal. It does not set out in the supplied text the formal orders made by the Court of Appeal or the disposition of the fines.