Justice Hardiman agreed with the order proposed by Justice Geoghegan in the Director of Public Prosecutions’ appeal concerning contempt of court, while recording that he did so on the assumption that an appeal lay. His judgment, delivered in the Supreme Court on 5 March 2009, does not set out the proposed order’s terms.
The case concerned an application by the DPP against Independent Newspapers (Ireland) Limited, Gerard O’Regan and Anne Murray-Walsh. Hardiman said that in a judgment delivered a year earlier, he had concluded that the court should not entertain the purported appeal because he considered the DPP’s application to be criminal in nature and the High Court to have been acting as the Central Criminal Court. His colleagues had disagreed on that point, holding that the High Court was not acting as the Central Criminal Court. After further argument on the merits, Hardiman said he considered the court’s majority decision binding on him and proceeded on the basis that an appeal lay.
Hardiman specifically agreed with Geoghegan’s conclusions on whether a person facing a contempt application was entitled to a jury trial under constitutional provisions concerning the trial of offences. He suggested that, if a jury were involved, it would answer specific questions put by the judge. The judge would decide whether the facts found amounted to contempt.
He also agreed with Geoghegan’s view that the “fade factor” was irrelevant when deciding whether a publication amounted to contempt: that question had to be assessed at the time of publication. He distinguished this from an application to prohibit a trial because of prejudicial publicity, where the passage of time might matter and an adjournment could be an appropriate remedy.
Hardiman said contempt jurisdiction was essential to protect court proceedings from public assertions about the guilt or innocence of people awaiting trial. He argued that prejudicial comment could undermine an accused person’s right to have the case decided by the proper tribunal without outside pressure. He also maintained that the High Court application was “essentially criminal” in nature, while noting that it did not attract the same procedures as a trial on indictment.
The source is Hardiman’s judgment only. It does not provide the terms of the order he supported or the full judgment setting out Geoghegan’s proposal.