Thursday 20 October 2016

Phoenix magazine wins appeal over judge's refuse to withdraw from Ian Bailey contempt case

Published 11/05/2016 | 17:34

Ian Bailey
Ian Bailey

Phoenix magazine has won its appeal over a High Court judge’s refusal to withdraw from hearing contempt proceedings over two articles concerning the Ian Bailey case.

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Comments by Mr Justice John Hedigan gave rise to reasonable apprehension of objective bias, the Court of Appeal held.

This arose out of "repeated stern criticism" about one of the articles and its publisher before the contempt proceedings were initiated, plus the judge's invitation to bring contempt proceedings should there be "any repetition" of that article, the appeal court said.

A reasonable person having knowledge of the invitation to bring contempt proceedings might well apprehend the judge had pre-determined the article amounted to contempt of court, it said.

Ms Justice Mary Irvine, giving the three judge court's decision, sympathised with Judge Hedigan in the position he found himself on October 10, 2014, when the first article was drawn to his attention by the State six weeks before the Bailey case was to open before a jury.

The State's lawyers, while not then seeking any orders against Phoenix, had described the article as "throughly impermissible" and said it might be "a matter of more controversy later".

Judge Hedigan's "surefootedness" was not helped by the fact Phoenix was not present at that hearing, she said. Phoenix had said they were given short notice of the matter but the State did not accept that.

While Judge Hedigan said nothing about the second article, both articles were subject of the one contempt motion and he should not deal with the entire motion, she said. It will now be decided by another judge.

Penfield Enterprises and Paddy Prendiville, publisher and editor of Phoenix, is still facing the contempt case which was brought by the State and Garda Commissioner, as defendants in Mr Bailey's case. They are seeking attachment and committal to prison orders and/or sequestration of the magazine's assets.

Both articles concerned Mr Bailey’s civil action for damages over alleged conspiracy to frame him for the 1996 murder of Sophie Toscan du Plantier.

The first was published before the case on September 26, 2014 and the second on April 24, 2015, some weeks after the jury rejected Mr Bailey’s case.

Ms Justice Irvine said the test for objective bias is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend there would not be a fair trial from an objective judge.

Each case turns on its own facts and circumstances and it was also relevant to consider if any comments or actions by a judge might suggest an element of prejudgement.

Something "quite outside the bounds of proper judicial behaviour" was necessary to establish objective bias.

It is "all too easy" for judges, because of long association with the legal process, to fail to recognise the extent to which litigants may be affected by "strongly worded criticism or forceful expression of their opinion on issues to be decided".

A reasonable person, having knowledge of the relevant circumstances, might well apprehend Phoenix would not get a fair and impartial hearing on the contempt matter because of the opinions expressed by the judge, she held.

A reasonable observer might consider his comments as indicative of a view the article might amount to contempt and that the judge had singled out Phoenix from the rest of the media as lacking professional integrity.

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