THE SUPREME Court has ruled by a four-to-one majority that it will hear an appeal by the Director of Public Prosecutions against a High Court judge's decision refusing to jail a newspaper editor and journalist for alleged contempt of court.
A date for the appeal hearing will be set later.
The appeal is against Ms Justice Elizabeth Dunne's decision that the DPP had not established contempt of court against the then Evening Heraldeditor Gerard O'Regan and journalist Ann Marie Walsh over articles in December 2004 about the appearance at the District Court of Patrick O'Dwyer on a charge of murdering his sister Marguerite (17).
Ms Justice Dunne refused the DPP's application to attach and commit Mr O'Regan and Ms Walsh and/or to sequester the assets of the newspaper after finding the published articles did not create a serious risk, as opposed to a possibility, of an unfair trial of O'Dwyer.
O'Dwyer (21), Shrohill, Ennistymon, Co Clare, was subsequently convicted in June 2006 of the manslaughter of his sister. He became the first person in the State to be convicted of a killing on grounds of diminished responsibility and was jailed for six years.
The trial heard he battered his sister over the head with a hammer and stabbed her about 90 times. Psychiatrists said he suffered from "depersonalisation disorder".
Yesterday, the Supreme Court delivered its decision on a preliminary issue in the appeal related to whether the DPP was entitled to bring an appeal to the Supreme Court.
Independent Newspapers had argued that the DPP was effectively trying to appeal against an acquittal in a criminal case when, it submitted, no such right of appeal to the Supreme Court existed. The DPP rejected those arguments.
The Supreme Court ruled that Ms Justice Dunne was not exercising the jurisdiction of the Central Criminal Court when she made her ruling and, therefore, the Criminal Procedure Act 1993 did not prevent the DPP from appealing to the Supreme Court.
Section 11 of the Act prevents an appeal over a decision of the Central Criminal Court.
Mr Justice Nial Fennelly said he did not believe applications for attachment or committal come within the jurisdiction of the Central Criminal Court and therefore the DPP was not prevented from appealing to the Supreme Court.
Mr Justice Hugh Geoghegan, while agreeing the High Court presided over by Ms Justice Dunne in hearing the contempt motion was not the Central Criminal Court, said he believed that was the only issue the Supreme Court should determine at this stage.
Noting the Constitution provided for appeals to the Supreme Court against all High Court decisions, he said that notwithstanding those provisions, the Supreme Court should hear further submissions in the DPP's appeal on the issue of whether there may be an appeal against an "acquittal".
In his dissenting judgment, Mr Justice Adrian Hardiman said the defendants had been subject to a criminal trial before the High Court, exercising its criminal jurisdiction, and that court's decision acquitting them had therefore to be regarded as a decision of the Central Criminal Court.
It was "an utterly novel proposition" that an acquittal in those circumstances could be appealed, the judge said.
Ms Justice Dunne's verdict was an acquittal and such a verdict had never, to his knowledge, been capable of appeal in any common law jurisdiction.
The judge added the same reasoning would seem to exclude any appeal against a "conviction" for contempt or an appeal against a refusal of costs to a citizen tried in the Central Criminal Court. This was a matter for "urgent legislative attention", he said.