THE DIRECTOR of Public Prosecutions has made an unprecedented application to the Supreme Court to find a newspaper editor and a journalist guilty of contempt of court and to impose a jail sentence, a fine or seizure of the newspaper’s assets.
The DPP has made the application in his appeal to the Supreme Court against a High Court finding that Independent Newspapers (Ireland) Ltd, then Evening Herald editor Gerry O’Regan and journalist Ann Marie Walsh were not in contempt of court over articles published in the Evening Herald in December 2004 about the appearance before the District Court of Patrick O’Dwyer on a charge of murdering his sister Marguerite.
The DPP’s appeal against Ms Justice Dunne’s decision opened yesterday before the five-judge Supreme Court.
The articles included a front-page article under the headline “Tragic Marguerite beaten to a pulp” and another page three article with the headline, “Grieving parents stay away as teen remanded”, which included an account of the postmortem examination of the dead girl and described the appearance and demeanour of the accused man.
In June 2006, O’Dwyer (21), of Shrohill, Ennistymon, Co Clare, was jailed for six years after being convicted of the manslaughter of his 17-year-old sister who was battered with a hammer and stabbed multiple times.
The DPP contends the articles amount to what his counsel, Feichin McDonagh SC, described as “a serious contempt” of court. Among the issues the court has to decide is whether the DPP can bring an appeal to the Supreme Court against what Independent Newspapers has described as “an acquittal” on the merits in a criminal case, and whether the Supreme Court has jurisdiction to allow such an appeal and impose a conviction and sentence.
In submissions, the DPP contends that the High Court judge wrongly took into account the likely time lag between the date of publication and the probable date of trial, and had confined her consideration to possible prejudice to a fair trial rather than prejudice to the much broader concept of the proper administration of justice.
The articles, whatever the intention of their author or publisher, were calculated to interfere with the administration of justice and were apt to convey the distinct impression that the person remanded by the District Court was in fact responsible for the death of his sister, the DPP said. Ms Justice Dunne appeared to accept the articles suggested this and, once she did so, it could not logically be said they did not create a real risk of prejudice.
The law governing contempt of court is not just about protecting the fairness of particular proceedings, but is also about preserving the integrity of the administration of justice, it was argued.
While a trial date may not have been available for many months in the case, other steps in the criminal process would continue in the interim during which readers would be predisposed to a negative view of the accused.
Mr McDonagh said Indepen-dent Newspapers had never really said the articles were not capable of being regarded as contempt but rather argued the “fade factor” should apply. This was a “prima facie” case of contempt.
In opening submissions opposing the appeal, Shane Murphy SC, for the respondents, argued that the application was unprecedented in the life of the State as the DPP was effectively arguing the Supreme Court should overturn an acquittal on the merits in criminal proceedings, conduct its own hearing and impose a sentence.
Neither the DPP nor the Attorney General had ever previously sought to do this and for good reason. The DPP was seeking to apply a blunt instrument and his clients were in “a twilight zone” where, after an acquittal, they found themselves subject to an appeal to the Supreme Court with no rules governing that process, including no rules for sentencing.
