The Supreme Court allowed the Director of Public Prosecutions’ appeal in a contempt of court case against Independent Newspapers (Ireland) Limited, Gerard O’Regan and Ann-Marie Walsh, but did not decide whether contempt had occurred.
In a judgment delivered on 5 March 2009, Mr Justice Geoghegan said the High Court judge had erred when she granted a direction at the close of the DPP’s case. The motion concerned an article published on 2 December 2004 and the prospective criminal trial of Patrick O’Dwyer.
The Supreme Court said there was an arguable case for conviction, considering the nature of the publication. The High Court judge should therefore have refused the direction. The Supreme Court also criticised the significance apparently given to the “fade factor”, saying whether publication amounted to contempt had to be assessed at the time it appeared, rather than by reference to later events.
The appeal followed a preliminary Supreme Court decision in March 2008. By a four-to-one majority, the court had rejected the respondents’ argument that the High Court judge, hearing the attachment and committal motion, was in effect the Central Criminal Court. The respondents also argued that no appeal could lie from what they characterised as an acquittal, and later asked the Supreme Court to overrule its earlier decision in DPP v O’Shea. Mr Justice Geoghegan concluded that an appeal lay from the refusal of an attachment and committal motion, at least on essential issues of law, given the special character of contempt proceedings.
The Supreme Court declared the appeal allowed on the basis that the direction should have been refused and set aside the High Court order. It refused all further relief sought in the notice of appeal. Because the case was stale after a lengthy appeal process, it declined to order a new hearing. The case had stopped at the direction stage, so the Supreme Court made no final determination on contempt and imposed no penalty.