The Supreme Court ruled that the Director of Public Prosecutions may appeal a High Court decision refusing an application to commit newspaper respondents for contempt of court. The court decided only a preliminary question about its jurisdiction to hear the appeal; it did not decide whether the publication was contemptuous or whether the original refusal was correct.
The DPP’s application arose from material published in the Evening Herald on 2 December 2004, after Patrick O’Dwyer had appeared before Ennis District Court charged with murder. In an affidavit, a solicitor for the prosecution alleged that the material risked prejudicing O’Dwyer’s fair trial and breached the sub judice rule. The application sought attachment and committal or sequestration of the respondents’ assets, as well as an order restraining further publication of material said to interfere with the trial process.
The High Court, in a judgment delivered on 3 May 2005, refused the application. It treated the alleged contempt as criminal and applied the criminal standard of proof. The judge concluded that the prosecution had not shown beyond reasonable doubt a real risk of prejudice to the fairness of the trial, as distinct from a remote possibility.
The newspaper respondents raised a preliminary objection, arguing that no appeal lay from what they said amounted to an acquittal in a criminal proceeding. They relied on provisions abolishing appeals from decisions of the Central Criminal Court to the Supreme Court and defining that court as the High Court exercising its criminal jurisdiction.
In the 5 March 2008 judgment, Justice Fennelly accepted that contempt jurisdiction is criminal in character but concluded that the High Court judge had not been exercising the jurisdiction of the Central Criminal Court. He said the relevant statutes and court rules pointed to that court’s ordinary role as conducting trials on indictment, and the source did not suggest that the judge had been formally assigned to sit as the Central Criminal Court in this case. The statutory appeal bar therefore did not prevent the DPP from appealing.
The judgment leaves open other arguments raised by the respondents, including their reliance on the rule against appeals from acquittals. It does not determine the merits of the DPP’s appeal or make a finding that the respondents committed contempt.