Sunday 19 November 2017

Independent Newspapers identified an accused person in part of its coverage of the Anglo Tapes - High Court

The Four Courts
The Four Courts

Tim Healy

A HIGH Court judge has accepted that there was no evidence of intention on the part of the Irish Independent to interfere with the course of justice after ruling that the paper was in contempt of court.

Ms Justice O’Malley said Independent Newspapers had "gratuitously identified" an accused person in part of its coverage of the Anglo Tapes.

However, she added that there was no evidence of intention on the part of the Independent or editor-in-chief Stephen Rae to interfere with the course of justice - although there is no requirement in law to prove intent for the offence of contempt of court.

She made the comments in the summary and conclusions of her judgment in which she found the paper was in contempt two weeks ago because the tapes were published after an accused person had been charged and returned for trial.

Only the summary and conclusions, along with the fact that the DPP had sought a contempt of court order, can be published until further order.

The judge gave her decision that the paper was in contempt last month but adjourned the matter  to allow the Independent's lawyers make submissions in relation to her order that only her summary and conclusions could be published.

When the case came before her again today, Paul O'Higgins SC, for the DPP, said his side had no difficulty with her ruling that only the summary and conclusions should be published pending further order.

Brian O'Moore SC (with Shane English BL), for the Independent, said his side also had no objection.

In the section which can be published, the judge said the publication at issue "gratuitously identified and associated the accused person with particular types of behaviour relevant to the charges to be considered by the jury".

She did not accept the paper's argument that lapse of time between publication and the trial meant there was no risk to the fairness of the (accused's) trial.

While the authorities on the relevancy of lapse of time are clear, they have no bearing on the question of contempt, she said.

The relevant date here was the date of the charge and the publication here undoubtedly occurred after the charges were brought.

She also did not accept the case that other persons published material relevant to the criminal charges without action being taken against them by the DPP. 

This was not a defence unless there is evidence of bad faith on the part of the prosecutor, she said.

In the action, the DPP claimed the publication of material on the Anglo Tapes was calculated to interfere with the criminal trial process in relation to events at the former Anglo Irish Bank.

The DPP sought orders for attachment and commital to prison of Mr Rae and sequestration of the paper's assets.    An injunction had also been sought preventing further publication.

The Independent denied the claims but agreed to remove from its website extracts of the tapes without prejudice to the newspaper's position in relation to the case taken by the DPP.

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