Criminal Liability
Cases
Truloc Ltd v McMenamin
[1994] 1 ILRM 151
Truloc Ltd carry on an adhesive manufacturing plant in premises located in Main Street, Carndonagh, Co. Donegal. Donegal County Council prosecuted them before District Judge McMenamin in 1991 on a number of charges under s. 24(2) of the Air Pollution Act 1987. It was alleged that on divers dates between March 1990 and February 1991 (inclusive) the company had been guilty of nuisance contrary to s. 24(2) of the Act by reason of emissions from the said premises. The charges were listed for hearing on 16 April 1991; adjourned for hearing to 25 June 1991, and for further hearing to special sittings on 2 and 16 July 1991, with a final hearing on 29 July 1991.
On that date — 29 July 1991 — the first of eight charges was struck out, and the applicant in the present proceedings (Truloc Ltd) was convicted on the seven remaining charges. A fine of £300 was imposed in relation to each of the seven charges and the applicant was further ordered to pay sums of £2,000 for costs and £2,000 for witnesses’ expenses. During the hearing of the charges evidence was taken from ten witnesses called in support of the prosecution, including an executive chemist and a chemical technician. No evidence was tendered on behalf of the applicant.
No notice of appeal to the Circuit Court was served on behalf of the applicant within the time prescribed by the rules. An application for extension of time to serve notice of appeal was made after the time had expired and the necessary extension of time was granted, but no notice of appeal has since been served.
An application was made to the High Court for leave to apply for judicial review for the purpose of seeking an order quashing the said convictions. This application was made in or about the month of January 1992, just within the period prescribed by the Rules of the Superior Courts, but was not supported by an adequate affidavit and no order was made at that stage. The application was renewed on 22 June 1992, a further affidavit having been sworn for the purpose on 19 May 1992, and an order was then made giving leave to apply for judicial review. A notice of motion was then served returnable for 27 July 1992.
Many grounds are put forward for challenging the validity of the convictions.
The applicant claims that:
(1) No evidence was given of the quantity or composition of the emission complained of, and that this is required by s. 4 of the Air Pollution Act 1987.
(2) No evidence was given that the emission complained of was injurious to public health or had a deleterious effect on flora or fauna or property or impaired or interfered with amenities or the environment, and that this also is required by s. 4 of the Act.
(3) The district judge was bound to, but did not, take into account all the circumstances referred to at s. 5(2)(a) and (b) of the Act, as to what were the best means practicable to prevent or limit emissions.
(4) He did not require the notice party to prove that ministerial regulations exist regarding adhesive manufacturing industry, and the area, as required by s. 10 of the Act.
(5) No regulations are in force specifying the best practicable means for preventing or limiting emissions, and until such limits are introduced the applicant cannot be shown to be in breach of the law.
(6) The reference in s. 11 of the Act to a ‘person’ being capable of committing an offence, envisages that a body corporate may only be sued if an officer of the company is sued at the same time.
(7) Under s. 12 of the Act penalties can only be imposed on a person and not on a body corporate, and an officer or officers of the company should have been named as a defendant or defendants.
(8) The applicant should have been given a right of election for summary or jury trial, having regard to the provisions of s. 12(1)(b) of the Act.
(9) Evidence was accepted from witnesses who were not duly appointed or authorised for the purposes of the Act—
John McCullins
Donal Casey B.Sc.
(10) As no emission limit values had been set under s. 51 of the Act, and no air quality management plan had been made under s. 46 of the Act, and no air quality standards specified under s. 50, the applicant was using the best practicable means to prevent or limit emissions and could not know it was infringing the law because of absence of standards.
(11) A breach of natural justice was involved in prosecuting the applicant when it could not know the nature and extent of the offence committed.
The following are my conclusions in relation to these several complaints:
(1) No evidence of quantity or composition as required by s. 4 of the Act
S. 24 of the Act provides as follows:
(1) The occupier of any premises, other than a private dwelling, shall use the best practicable means to limit and, if possible, to prevent an emission from such premises.
(2) The occupier of any premises shall not cause or permit an emission from such premises in such a quantity, or in such a manner, as to be a nuisance.
(3) In any prosecution for a contravention of this section it shall be a good defence to establish that—
(a) the best practicable means have been used to prevent or limit the emission concerned, or
(b) the emission concerned was in accordance with a licence under this Act, or
(c) the emission concerned was in accordance with an emission limit value, or
(d) the emission concerned was in accordance with a special control area order in operation in relation to the area concerned, or
(e) in the case of an emission of smoke, the emission concerned was in accordance with regulations under s. 25, or
(f) the emission did not cause air pollution.
‘Air pollution’ is defined for the purposes of the Act, in s. 4, as meaning a condition of the atmosphere in which a pollutant is present in such a quantity as to be liable to—
(i) be injurious to public health, or
(ii) have a deleterious effect on flora or fauna, or damage property, or
(iii) impair or interfere with amenities or with the environment.
S. 5(1) then provides as follows:
(1) Subject to subs. (3) a reference in this Act to the use of the best practicable means to prevent or limit an emission shall be construed as meaning the provision and proper maintenance, use, operation and supervision of facilities which, having regard to all the circumstances, are the most suitable for such prevention or limitation.
And in s. 5(3) as follows:
(3) The minister may from time to time as occasion demands, issue directions specifying the best practicable means for preventing or limiting such emission as may be specified in the direction, either generally, or from premises of a particular class, or description, and regard shall be had in the administration of this Act, to any such directions.
I do not consider that it is part of the function of the High Court on an application for judicial review, to examine in detail the evidence tendered in support of a prosecution in the District Court for the purpose of assessing whether, in the opinion of the High Court judge that evidence was sufficient to support the conviction which has been entered against a defendant.
Lord Brightman in Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155 dealt as follows with the true function of judicial review proceedings:
Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed the court will, in my view, under the guise of preventing the abuse of power be itself guilty of usurping power …. Judicial review, as the words imply, is not an appeal from a decision but a review of the manner in which the decision was made.
This passage was referred to with approval by Griffin J in his judgment in State (Keegan) v. Stardust Victims’ Compensation Tribunal [1986] IR 642, and by Finlay CJ in his judgment in O’Keeffe v. An Bord Pleanála [1992] ILRM 237, with which the other members of the court agreed. The Chief Justice continued at p. 262:
I am satisfied that in order for an applicant for judicial review to satisfy a court that the decision-making authority has acted irrationally in the sense which I have outlined above, so that the court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision.
These statements of principle were again reiterated by the Chief Justice in the recent decision of Garda Representative Association v. Ireland [1994] ILRM 81, where he stated:
It is quite clear from the decisions to which I have referred … that judicial review is what it says it is, namely, a review and not an appeal ….
Having made this point clear, I may add that I have been given no reason to believe that the evidence in the present case was insufficient to sustain the conviction of the applicant on the charges referred to in the present application.
Before ever the Act of 1987 was passed, it was a criminal offence at common law to commit a public nuisance. Such an offence is committed by every person who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all subjects. It is immaterial whether the annoyance arises from noise, stench, unwholesomeness or interference with public health or convenience. (Archbold, Criminal Pleadings, Evidence and Practice , 35th ed., paragraphs 3821-3; Attorney General v. Keymer Brick and Tile Co. (1903) 67 JP 434).
In the present case, Mr McMullin’s affidavit refers to the fact that evidence was given by Mr Donal Casey in his capacity as executive chemist in relation to his inspections of the factory, the pollutants being emitted therefrom, the results of tests carried out by him, his reports thereon and results of tests. He further avers that residents of Main Road, Carndonagh, gave evidence that there was an offensive emission/smell emanating from the applicant’s premises and that they had suffered respiratory problems including sore throats as a result of emissions from the said factory and the smell emanating therefrom and that the said factory and the emissions therefrom were a serious nuisance to them.
In my opinion this was evidence of such nature and character as satisfied the requirements of s. 4 of the Act if accepted by the district judge, and it has already been noted that no rebutting evidence was offered on behalf of the applicant.
This finding also disposes of the second ground relied on by the applicant, viz., that no evidence had been adduced that an emission from the factory had been injurious to public health or had a deleterious effect on flora or fauna or property, or impaired or interfered with amenities or with the environment.
(3) Alleged failure by district judge to take into account all the circumstances referred to at s. 5(2)(a) and (b) regarding the best means practicable to prevent or limit emissions.
This is a matter of defence and is not a matter which the prosecution are called upon to establish as part of the proof of commission of an offence contrary to the provisions of s. 24(2) of the Act.
The offence is prima facie committed by an occupier of any premises who causes or permits an emission from such premises in such a quantity, or in such a manner, as to be a nuisance.
The Act provides, however, in s. 24(3) that in any prosecution for a contravention of the said section, it shall be a good defence to establish that (inter alia) the best practicable means have been used to prevent or limit the emission concerned.
In the present case no such evidence was tendered on behalf of the applicant and there was no onus on the prosecution to prove the negative.
(4) Alleged failure to prove that the minister had made regulations in accordance with s. 10 of the Act, dealing with the adhesive manufacturing industry and the area in which the applicant’s factory is located.
The section provides that the minister may make regulations—
(a) for prescribing any matter referred to in the Act as prescribed,
(b) in relation to any matter referred to in the Act as the subject of regulations, and
(c) for the purpose of giving full effect to the Act.
It does not appear to me that any ministerial regulations under s. 10 of the Act were required before the provisions of s. 24 of the Act could be invoked and prosecutions brought in reliance on the terms of that section, and I find against the applicant in relation to this ground of objection.
(5) No regulations are in force under the Act specifying the best practicable means for preventing or limiting emissions and in the absence of such regulations the applicant should be held to be acting in accordance with law.
It is certainly open to the minister, if he sees fit to do so, to issue directions in accordance with the powers given to him by the provisions of s. 5(3) of the Act, specifying the best practicable means for preventing or limiting such emission as may be specified in the direction, either generally or from premises of a particular class or description, and regard shall be had in the administration of the Act to any such directions.
It was not suggested, however, that the minister had issued any such directions relevant to the emissions complained of in the prosecutions brought against the applicant. Had such directions been issued they could be relied on by a defendant seeking to show that he had, for example, a good defence under s. 24(3)(a) of the Act in a prosecution for contravention of s. 24. But no such defence was put forward by the applicant in the present case, and I do not accept that the making of regulations by the minister or the issue of directions by him on this topic is a necessary prerequisite to the prosecution for offences under s. 24 of the Act. Accordingly this ground of objection to the proceedings also fails.
(6) and (7) The claim that where a charge under the Act is brought against a body corporate it is necessary to join in the proceedings some officer of the company, having regard to s. 11 of the Act, and the imposition of penalties under s. 12 also requires the concurrent prosecution of an officer of the company.
The word ‘person’ as used in s. 11 and 12 of the Act clearly includes a corporate body. The Interpretation Act 1889, s. 2 provides as follows:
2.—
(1) In the construction of every enactment relating to an offence punishable on indictment or on summary conviction, whether contained in an Act passed before or after the commencement of this Act, the expression ‘person’ shall, unless the contrary intention appears, include a body corporate.
A corporation is exempt from prosecution for offences which can only be committed by a human person, such as perjury or bigamy, or for which death or imprisonment are the only punishments, but the modern view is that a corporation can even be convicted of the crime of manslaughter, which can be punished by the imposition of a fine. (Halsbury, Laws of England , 4th ed., Vol. 11 (1), paragraph 35; R. v. ICR Haulage Ltd [1944] KB 551, 556–7).S. 11(2) of 159the Air Pollution Act 1987, expressly recognises that an offence under the Act may be committed by a body corporate, and I can find nothing in s. 11 or s. 12 of the Act to suggest that it is necessary to join an officer of the company in any such prosecution, or for the purpose of imposing a penalty by way of fine under s. 12 of the Act.
(8) The contention that the applicant should have been put on election between summary trial and trial on indictment.
S. 12 of the Act permits the bringing of a prosecution under the Act by way of summary charge (in which case the penalties which may be imposed are on a much lower scale than the penalties which may be imposed if convicted on indictment) or by way of indictment. A local authority is empowered by s. 13 of the Act to bring a summary prosecution. If it elects to do so then no question arises of the accused being put on election to choose between summary trial and trial on indictment before a jury. It is not contended by the applicant that the offences charged could not properly be regarded as minor offences. (State (McEvitt) v. Delap [1981] IR 125).
(9) It was contended by the applicant that evidence was taken from persons not properly authorised.
Two persons were named in this context — one being John McCullins and the other Donal Casey. I understand that it is now accepted that John McCullins did not, in fact give evidence at the hearing of the prosecutions. In the case of Donal Casey it was contended that he was not properly appointed as an authorised person for the purposes of the Air Pollution Act 1987, but this contention appears to have been based on a confusion on the part of the applicant’s legal advisers as to the identity of the person by whom the appointment was made. The applicant claimed that Mr Maloney who made the appointment signed himself as county manager of the Donegal County Council on 4 July 1989 (the date of Mr Casey’s appointment) ‘though his (Mr Maloney’s) appointment to the position of county manager was made … on 24 January 1991’.
In fact, the person making the appointment of Mr Casey by order of 4 July 1989, was Mr Frank Maloney, who at that time was the county manager, whereas the person referred to in paragraph 9 of the statement grounding the application was Mr William Maloney who was appointed deputy county manager by order of the county manager dated 4 February 1991.
(10) Convictions said to be invalid in absence of emission limit values under s. 51, air quality standards under s. 50, and air quality management plan under s. 46.
A local authority may, and shall if the minister so directs, make an air quality management plan in relation to all or any part of their functional area. (S. 46). The minister may, for the purposes of the Act, by regulations specify air quality standards, which may be different for different areas or classes of areas, different circumstances or different periods of time. (S. 50). The minister may make regulations specifying emission limit values, which again may vary according to areas, premises, circumstances, or periods of time. (S. 51).
I do not interpret any of these statutory provisions as inhibiting the bringing of prosecutions for offences under s. 24 of the Act pending the exercise of these functions by the local authority and/or the minister. They are not expressed in mandatory terms. There is nothing in the wording of s. 24 itself to suggest that proceedings under the section must await the making of regulations under other parts of the Act. In effect what it does is to create a statutory offence akin to the common law misdemeanour of public nuisance, carrying the special penalties referred to in s. 12 of the Act, and subject to the special defences referred to in s. 24(3). Some of these possible defences can only arise, however, if and when further steps have been taken under other provisions of the Act, such as the grant of a licence under the Act (Part III), the making of regulations concerning emission limit values (s. 51), emission of smoke into the atmosphere (s. 25), and the making of special control area orders (Part IV). The fact that some ground of defence may thus arise in the future which does not yet exist is not, in my opinion, a sufficient basis for challenging the validity of a prosecution brought in the meantime under the provisions of s. 24 of the Act.
(11) Alleged breach of natural justice by reason of uncertainty
It is claimed that the applicant, in the absence of the regulations and orders which may be made under the Act, could not know the nature and extent of the offence committed and that the prosecutions were invalid for this reason. I refer again to the common law misdemeanour of public nuisance, and conclude that there is no greater element of uncertainty involved in identifying the commission of an offence contrary to the provisions of s. 24(2) of the Act of 1987 than there was at any time in the past in bringing and defending a charge of commission of the offence at common law. I decide against the applicant in relation to this ground also.
I therefore decide that no grounds have been made out for challenging the validity of any of the convictions which are the subject of review in the present proceedings, and I dismiss the application for relief by way of certiorari to quash the said convictions.
People (DPP) v TN
[2018] IECA 52
JUDGMENT of the Court delivered on the 29th day of January 2018 by
Mr. Justice Birmingham
1. On 27th October, 2015, following a lengthy trial the respondent, Mr T.N., was acquitted by direction of the trial judge in respect of two counts of holding or disposing of waste in a manner that causes or is likely to cause environmental pollution, and six counts of disposing of or undertaking the recovery of waste otherwise than under and in accordance with a waste license. The Director of Public Prosecutions has applied to this Court, pursuant to s. 23(3)(b) of the Criminal Procedure Act 2010, for a determination that the court of trial in directing a verdict of not guilty was wrong in law and that the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned. She has sought an order within the terms of s. 23(3)(b) of the Criminal Procedure Act 2010, an order that the subsequent acquittals be quashed, and an order that the respondent be re-tried in respect of all charges of which he had been acquitted by the jury in the court of trial.
2. Section 23 of the Criminal Procedure Act 2010, so far as material, provides as follows:
“23.— (1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, may, subject to subsection (3) and section 24 , appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court [now the Court of Appeal].
…
(3) An appeal under this section shall lie only where—
(a) a ruling was made by a court during the course of a trial referred to in subsection (1) or the hearing of an appeal referred to in subsection (2), as the case may be, which erroneously excluded compelling evidence, or
(b) a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where—
(i) the direction was wrong in law, and
(ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.
…
(11) On hearing an appeal under this section the [Court of Appeal] may—
(a) quash the acquittal … and order the person to be re-tried for the offence concerned if it is satisfied—
(i) that the requirements of subsection (3)(a) or (3)(b), as the case may be, are met, and
(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,
or
(b) if it is not so satisfied, affirm the acquittal …
…
(12) In determining whether to make an order under subsection (11)(a), the Supreme Court shall have regard to—
(a) whether or not it is likely that any re-trial could be conducted fairly,
(b) the amount of time that has passed since the act or omission that gave rise to the indictment,
(c) the interest of any victim of the offence concerned, and
(d) any other matter which it considers relevant to the appeal.
…
(14) In this section “compelling evidence”, in relation to a person, means evidence which—
(a) is reliable,
(b) is of significant probative value, and
(c) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.”
3. The respondent has contended that his oral and written submissions can only address the issues raised by s. 23(3)(b)(i) of the Criminal Procedure Act i.e. the issue of whether the direction in the Circuit Court was wrong in law. The respondent says that if this Court finds in favour of the Director and concludes that the direction granted by the trial judge was wrong, it is only then that it would be possible to properly consider the issues raised by subs. (2), these being the adequacy of the evidence and whether in the light of what the Court has said about the applicable law, the evidence that was adduced was such that a jury might reasonably have been satisfied beyond a reasonable doubt of the guilt of Mr T.N. Furthermore, the respondent says that at this stage it is not possible for him to address the issues raised by subss. (11) and (12), the issue as to whether a retrial should be directed.
4. This Court accepts that there is merit in the procedural issues raised by the respondent and so this judgment will deal only with the question of whether the trial judge in the Circuit Court was correct to direct a verdict of not guilty. It will be necessary to say something about the evidence that was before the Circuit Court but what is said in that regard is tentative, and at this stage the reference to the evidence in the Circuit Court is only for the purpose of giving context to the legal arguments that were in issue in the Circuit Court and now on appeal.
The charges faced by Mr T.N.
5. At the outset, it should be explained that there were in fact two accused on the indictment, Mr. T.N. and Jenzsoph Limited. Jenzsoph Limited was not professionally represented and did not play an active part at trial. Its relevance to the matters in dispute will be referred to later. In all, Mr T.N. was charged with nine counts contrary to provisions of the Waste Management Act 1996. Counts 1 – 6 consisted of general charges of causing environmental pollution in the form of nuisance through odours between 1st November, 2007 and 25th November, 2008 and specific contravention of Condition 5.3 in Waste License W0047-02. It is to be noted that no evidence was offered in respect of Count 4. Counts 7, 8 and 9 related to the accumulation of waste in the northwest portion of the waste site in a manner likely to cause environmental pollution and otherwise than in accordance with the provision of two waste licences which regulated the operation of that facility between 22nd October, 2003 and 26th September, 2006 and then between 27th September, 2006 and 25th November, 2008. In general terms, all charges related to dumping and waste related activities at a facility at Kerdiffstown, Naas, County Kildare, between 22nd October, 2003 and 25th November, 2008. The lands where dumping and waste activity took place were owned by Jenzsoph Limited. There, dumping and waste activity was carried by Neiphin Limited which occupied the facility on foot of a licence from Jenzsoph Limited. Neiphin Limited was a wholly-owned subsidiary of Dean Waste Limited, which operated from a premises at Broomhill Road, Dublin 24. Dean Waste Limited traded as “A1 Waste” and it was in effect owned by Mr Tony Dean. It does not appear that either Neiphin Limited or Jenzsoph Limited had any employees. Neiphin’s commercial transactions were limited to intercompany transactions involving itself and Dean Waste.
6. The Environmental Protection Agency (EPA) issued two waste licences to Neiphin Trading Limited governing the operation of the Kerdiffstown facility. The first was valid from mid-September, 2003 and the second from the 26th September, 2006 (Licence Reg. No. W0047-02). The words contained in the introduction to that licence are specifically stated not to be part of the licence, and do not amount to a legal interpretation of the licence. Notwithstanding that, it does however merit quotation as it gives an overview of what was happening in Kerdiffstown and the scale of the operation. The introduction states:
“This licence is for the operation of an integrated waste facility consisting of a composting facility, a non-hazardous waste landfill, inert waste land-filling and infrastructure for the processing and recovery of commercial/industrial/household waste and construction and demolition waste at Kerdiffstown, Naas, County Kildare. The facility covers an area of approximately 30.6 hectares. It is a sand and gravel pit, which has a history of various extractive and backfilling operations.
The licence allows up to 630,000 tonnes of waste per annum to be processed at the facility, providing adequate processing capacity is available. This waste includes commercial/industrial waste, household dry recyclables, construction and demolition waste, compostable waste and waste previously land-filled at the facility. A lined land-fill is proposed in the void created from the extracted waste. Only pre-treated residual waste and inert waste may be land-filled.
The licensee must manage and operate the facility to ensure that the activities do not cause environmental pollution. The licensee is required to carry out regular environmental monitoring and submit all monitoring results, and a wide range of reports on the operation and management of the facility to the Agency. The licence sets out in detail under which Neiphin Trading Limited will operate and manage the facility.”
The form of indictment and the statutory provision in issue at trial
7. It is to be noted that the respondent was initially indicted as a principal. By way of example, Count 1 on the indictment stated:
“Statement of offence
Holding or disposing of waste in a manner that causes or is likely to cause environmental pollution, contrary to s. 32(1) and (6)(a) of the Waste Management Act 1996, and contrary also to s. 9(1) of the Waste Management Act 1996.
Particulars of offence
T.D. (otherwise T.Y.) N. and Jenzsoph Limited at dates unknown between 1st February, 2007 and 25th November, 2008 (both dates inclusive) at Kerdiffstown in the County of Kildare held or disposed of waste in a manner that caused or was likely to cause environmental pollution in the form of nuisance through odours.”
8. While the charge was stated to be contrary to s. 32(1) and (6)(a) of the Waste Management Act 1996, it will be seen that there was also reference to s. 9(1) of the Waste Management Act 1996.
9. At the start of the case, counsel for Mr T.N. raised issues about the form of the indictment. In responding to the issues raised, counsel for the prosecution made it clear that his case was that there had been breaches of a licence by Neiphin Trading Limited in that as the licence holder, in various ways it had failed to operate within the terms of the licence and secondly it had caused environmental pollution. His case in relation to T.N., the other defendant was that he was a manager or in fact held himself out as being a manager of Neiphin Trading Limited. Having heard that debate, the trial judge indicated that he was proposing to invite the prosecution to redraft the counts in order to show that Neiphin Trading Limited had a role and that the accused’s culpability was alleged to arise because of his involvement with that company. Counsel for the prosecution agreed that the indictment would be redrafted over night. Again, by way of example the redrafted Count 1 read as follows:
“Statement of offence
Holding or disposing of waste in a manner that causes or is likely to cause environmental pollution, contrary to s. 32(1) and (6)(a) of the Waste Management Act 1996, and contrary also to s. 9(1) of the Waste Management Act 1996.
Particulars of offence
Jenzsoph Limited and Neiphin Trading Limited on diverse dates between 1st February, 2007 and 25th November, 2008 (both dates inclusive) at Kerdiffstown in the County of Kildare held or disposed of waste in a manner that caused environmental pollution in the form of nuisance through odours. T.D. (otherwise T.Y.) N. being during that period a director, manager or other similar officer of Neiphin Trading Limited or purporting to act in such capacity consented to or connived in the commission by Neiphin Trading Limited of the said offence.”
10. The terms of s. 9(1) of the Waste Management Act 1996 were central to the proceedings in the Circuit Court and are now at the heart of the present with prejudice appeal brought by the director. Section 9(1) of the Waste Management Act 1996 provides as follows (so far as material):
“Where an offence … has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other similar officer of the body corporate… that person as well as the body corporate shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.”
11. The application for a direction was on the basis that the prosecution evidence taken at its high water mark did not establish that T.N. was a director, manager, secretary or other similar officer of Neiphin Trading Limited.
12. Before coming to deal with the submissions that were addressed to the Circuit Court and indeed to this Court on the issue of who is a director, manager, secretary or other similar officer, it is appropriate to say just a little about the evidence that was before the Circuit Court. This is done simply to offer a degree of context for the legal issues that arise and as already indicated the respondent, T.N., has made clear that depending on the view the Court forms on the question of whether the judge was right or wrong to grant a direction, he may want to make further submissions in relation to the adequacy of the evidence and the appropriateness of a retrial. The fact that matters are mentioned at this stage does no more than establish that there was a reference to this at the trial and should not be misunderstood as an acceptance by the Court that a particular point was actually established in evidence. By the same token, the fact that a particular piece of evidence which one side or the other may regard as significant is not referred to at this stage does not in any way preclude reliance being placed on it at a later stage.
13. The licences issued by the Environmental Protection Agency required that the Kerdiffstown facility be under the control of a suitably qualified facility manager whose identity and qualifications were to be communicated to them. By letters of 19th March, 2004, and 7th June, 2004 which enclosed a management structure chart the Environmental Protection Agency were informed that T.N. was the facility manager of Kerdiffstown. His professional experience and employment history were also provided. This correspondence was cc’ed to T.N., Neiphin Trading Limited. Annual environmental reports referred to T.N. as the facility manager at the top of the management pyramid. T.N. corresponded frequently with the EPA in relation to the Kerdiffstown facility. Correspondence was sent on A1 Waste headed paper. From early 2004 to 2008 correspondence was signed “T.N. Director”, from October, 2008 to mid 2009 letters were signed “T.N. Managing Director”, and late in 2009 letters were signed simply “T.N.” Subsequently letters, were signed “T.N. Environmental Consultant”. Companies Registration Office documents indicate that he was a director of Dean Waste from late 2008 until mid 2009 but he has never been recorded as a director of either Neiphin or Jenzsoph.
14. The case for the respondent was that T.N. was neither a manager nor a director of Neiphin and had never purported to be one, that he was a consultant. T.N. was remunerated for his role by way of fees paid to N… Environment Services Limited, a company of which he and his wife were directors.
The application for a direction
15. Following the conclusion of the prosecution evidence, counsel on behalf of T.N. indicated that he was first of all seeking a ruling from the Court in respect of the meaning of s. 9(1) of the Waste Management Act and clarity as to the ingredients of the offence with which his client was charged. Secondly, he submitted that there was insufficient evidence on which a jury could properly convict T.N. He drew attention to the fact that while s. 9(1) of the Waste Management Act spoke about consent or connivance or being attributable to neglect, here there was no allegation of neglect and the indictment was framed in terms of consent or connivance. He submitted that it was an essential proof that it be established that his client was a director, manager, secretary or other similar officer of the body corporate. He indicated that he would be referring the Court to authorities which suggested that it was not any management role that the legislation envisaged, but a management role central to the operation of the company, in effect the guiding mind of the company. He submitted that s. 9(1) was a penal provision and as such should be strictly construed. Dealing with the concept of a director, manager, secretary or other similar officer, he indicated that his main point was that the reference to a “similar officer” limits the meaning of the word “manager”. So, he submitted, the reference to “manager” cannot be interpreted as a reference to anyone involved in management at any level, it must be read in the context of the reference to a director, being an officer of the company, a secretary, being an officer of the company and the reference to other similar officers. Accordingly, it was his submission that the manager referred to had to be a manager at officer level with functions in respect of the body corporate as a whole.
16. He then referred to a number of authorities, some dating back to the 19th Century. In exchanges with the trial judge, he submitted that a manager is a person who has managerial control of the company, who has both the authority and the power to make decisions on behalf of the company. Further, management has to be at a high level within the company in respect of the general affairs of the company, approximating to a managing director role. In further exchanges, counsel submitted that running the operations at the waste site was not a sufficiently senior level. He responded to an interjection from the judge as to what the position would be sufficiently senior, if a company was doing nothing else other than running the site. Counsel responded, “Well, the company must be involved in financing, the company has other aspects to its existence.” In response, counsel for the prosecution submitted that it was necessary for the Court to adopt a common sense view in relation to construction of the Act. He took the example of a company that had appointed a manager in relation to fire safety strategy. Counsel went on to submit that he did not accept that it was only those at the very top of a company who can be made responsible under s. 9 and he submitted that those who had roles of management in relation to a particular matter have responsibilities that go with the role. He gave the example of safety officers within a company and compliance officers in banks. Following the debate, the trial judge gave an ex tempore ruling as follows:
“The argument and submission being made by Mr Ó Briain [Senior Counsel for T.N.] at this juncture is a succinct and singular one, namely that the act under s. 9(1) describes a person answerable to the criminal law and sanctions under the provisions of the 1996 Act as being a person who is either a director, manager, secretary or other similar officer, or a person purporting to be such. And he says that in the evidence at its highest from the prosecution point of view does not establish those facts vis-à -vis Mr N. It is common case Mr N. was actively involved in the affairs of Kerdiffstown over a long number of years and through all the relevant times of the indictment. He was active to the extent that he was to be found in correspondence at the A1 Waste head office in Broomhill; he was on site at every occasion when a visit was announced; he dealt with the members of the public and the neighbours concerned; and he engaged in exhaustive correspondence with The Environmental Protection Agency on behalf of the operation of Kerdiffstown. Mr Ó Briain says that that does not amount to manager within the concept of s. 9, as defined by the authorities which he has opened to the Court. He says that if the Court was of a mind to say there was evidence there, it was ambiguous and incapable of being consistent with Mr N. acting as a consultant advisor and not a manager. The State’s answer advocated very forcibly by Mr Owens [Senior Counsel for the Prosecution] is and can be succinctly put as this: common sense must be applied and that the narrow or strict interpretation sought to be put upon the section by Mr Ó Briain defies common sense, and that in all measure and means of appreciation of the role and position of Mr N. amounts to a man who was in charge, managing, making the big decisions, as Mr Owens would describe it. This is a penal statute. The views of Hardiman J., as outlined, apply. There can be no simple application of common sense, frankly. The statute has to be strictly construed, and in so construing it, one has to look then at the terminology, director, manager, or secretary: it is not argued that Mr N. was a director, he was for a very short time a director of A1 Waste, less than a year, approximately nine months in 2007/2008 period or thereabouts. He was not a secretary so it is in the capacity of manager and throughout it has been sought to ascribe him, in particular as a facility manager, in effect the man running the facility which is something defined within the Act under s. 5, Kerdiffstown. The authorities opened to the Court by Mr Ó Briain are, based on the principle of penal sanction where there are significant penalties potentially open to the Court to impose, that a strict interpretation is given. And all of the authorities from beginning to end say that it is not a provision that can be broadened, based upon common sense or any other basis, to in effect entrap in the penal structure of the section what is described colourfully in one as “underlings” and in others in effect as a matter of law, those who act as consultants, advisors or the like. It is to entrap those who are in charge of the whole of the company as the word is used. It is in Gibson we have to say, and I am quoting as has already been opened (p. 336):
‘A person who has the management of the whole affairs of the company. In WH Smyth ‘We have to say it is one who has considered a manager, a manager would be in ordinary talk, a person who has the management of the whole affairs of the company, not an agent who is to do a particular thing, or a servant who is to obey orders, but a person who is entrusted with power to transact the whole affairs of the company.’
In Woodhouse, perhaps the most illustrative one in terms of the role undertaken or given or ascribed to that man, outlined powers far beyond those of Mr N. on any account in this action, and in dealing with perhaps the common sense approach, as argued and advocated by Mr Owens merely to speak in real authority amounts to my judgment to nothing. They did not finish Simon Browne’s sentence. Had they done so, it seems to me that they could not possibly have arrived at the conclusion that they did because there was nothing in the evidence which could properly have led them to conclude that the appellant was a decision maker within the company, having both the power and responsibility to decide corporate policy and strategy. In Boal’s case, and again the phrase is used ‘the management of the whole affairs of the company’, was entrusted with power to transact the whole of the affairs. The intended scope of the section is to fix criminal liability only on those who are in a position of real authority, the decision makers within the company who have both the power and responsibility to decide corporate policy and strategy. It is to catch those responsible for putting proper procedures in place, it is not meant to strike at underlings. It seems to me that the constant line of authority is this: that a manager is as described in those judgments as a person who runs or holds authority over the whole of the affairs of the company. Similarly, officer, in my view does not in any way seek to dilute that status or position that is and must be proved. The principle of interpretation ejusdem generis applies so that when one comes to what a similar officer means, it has to be taken in the context of director, manager or secretary, someone, as I say who holds either an appointed position or a position effecting the whole affairs of the company, who has authority to lay strategy and to be answerable for it. The evidence in this case does not establish that Mr N. held such a position of management within Neiphin Trading Limited. He is described as the person with whom the authority, the Environmental Protection Agency, should liaise and correspond with. It is no doubt that he took a very active position, arguing trenchantly and, and it can often be said fairly, not disingenuously, dishonestly on behalf of the company to argue their position. When comes to mind the annual reports indicating over some four or five years that no landfill was taking place in the northwest section when it was happening almost on a daily basis, it would seem. But nevertheless, his involvement goes no further than that on the evidence. Mr Howley (EPA Inspector) himself says that there is no direct evidence available to him, the lead investigator, that Mr N. was in any way on a day-to-day basis directing operations on site, that he was playing the active daily role. It seems from the evidence of Mr Darcy [Chartered Accountant and expert witness] that the accounts show significant fees being paid, not to Mr N., but to his consultancy company, of which he was part owner with his wife. He was present on site whenever notification was sent that an audit inspection was to take place. There is finally, for what it’s worth, the evidence of the three Lithuanian employees who say that the day-to-day running was in the hands of others, Mr Conway and the man known as John, never Mr N. And in the evidence of Mr Darcy, the corporate matrix mix and analysis does not place Mr N. in any role of any significance within the companies. I have to come to the conclusion that the submissions made by Mr Ó Briain, that in fact perhaps the wrong charge, if any, has been brought. The s. 9(1) was not designed to deal with someone in the position of Mr N. who could and might well have been made answerable for his conduct under a different charge or a different section. He does not, in my view, come within the terms of s. 9(1) either in the director capacity, as manager, and that being so, as someone purporting to act as a manager. For these reasons I am satisfied that I must accede to the application or submission made by Mr Ó Briain that the case for the State has not been made out having regard to the provisions of s. 9(1) of the Act and that Mr N., therefore, is entitled to be discharged from each of the indictments to which he stands answerable.”
17. The Director summarises the approach of the trial judge as having concluded that the prosecution had not established that the accused respondent was a manager or other similar of Neiphin or purported to act in such capacity because the evidence did not establish that he was a decision maker within the company “with power to direct the whole of the affairs of the company” and who had the “power and responsibility to decide corporate strategy”. According to the Director, the trial judge took the view that “manager” was someone holding an appointed position in the company, one effecting its whole affairs and that it had not been proved that the accused/respondent had held “an appointed position or a position effecting the whole affairs of the company” or “was responsible for policy”. The judge took the view that he was not the sort of manager contemplated by the statutory provisions and not being such, could not be considered to be purporting to act as such either. The judge felt that the purpose of this section was to catch those in charge of the company as a whole.
18. The Director criticises the trial judge’s approach and says that it had insufficient regard to the fact that the evidence at trial suggested that the operation of the facility at Kerdiffstown and the business of Neiphin were in substance the same thing. The Director says that over the relevant period the respondent was and acted as manager of the Kerdiffstown facility and held himself out as such. The Director says that while there may have been some aspects of the company such as finance for which Mr N. did not bear responsibility the areas for which he had direct responsibility were all inextricably linked with an obligation to ensure compliance with the terms of the licenses.
19. As will be evident from the terms of the ruling quoted above, the judge was heavily influenced by his assessment of the state of the law based on a review of a number of authorities that were opened to him. Those authorities have also been opened in the course of this appeal and it is appropriate to refer to them at this stage even if only briefly.
20. The first case referred to was that of Gibson v. Barton [1875] L.R. 10 QB 329. The case related to the obligation pursuant to s. 26 of the Companies Act 1862 to furnish the registrar of joint stock companies with a list of all the members of the company within 14 days after the ordinary general meeting of the company. S. 27 provided that if a company made default it incurred a penalty and “every director and manager of the company who shall knowingly and willingly authorise or permit such default shall incur a like penalty.” The appellant was the Secretary of the company involved. Its articles of association did not provide for the appointment of a manager and none had been appointed. In the course of his judgment, Blackburn J. commented:
“In what sense are the words “director” and “manager” used in that section? When the section says “director,” it is plain enough a director is a director, but the words are “and manager.” We have to say who is to be considered a manager. A manager would be, in ordinary talk, a person who has the management of the whole affairs of the company; not an agent who is to do a particular thing, or a servant who is to obey orders, but a person who is intrusted with power to transact the whole of the affairs of the company.”
21. In Registrar of Restrictive Trading Agreements v. WH Smith [1969] 3 All E.R. 1065, the case arose from the ambitions of Mrs S. to sell newspapers from her dairy shop in Newport. It seems there were only three wholesale suppliers in Newport and all three refused to supply the dairy. The Registrar of Restrictive Trading Agreements served a notice on each of the three wholesalers requiring them to give particulars of the agreement. The Registrar applied to court for an order to examine C., an individual, one of the three wholesalers, and also for an order to examine the Branch Manager of WH Smith and Menzies, the third wholesaler. The Court of Appeal upheld the decision of the High Court declining to make an order against the branch managers of WH Smith and Menzies in Newport holding:
“… that orders for the examination of the branch managers could not be made. Manager meant a person managing the affairs of the company as a whole and officer had a similar quotation: accordingly, since the two branch managers were not concerned with the management of WH Smith and Menzies as such, they did not fall within the class of persons against whom orders could be made.”
In the course of his judgment Lord Denning M.R. commented:
“I can understand the registrar’s point of view; but I do not think that it is correct. It is not right in this section to give the word “manager” or “officer” an extended meaning. It is contrary to the spirit of our law. The law of England abhors inquisitorial powers. It does not like to compel a man to testify against himself. It never wants him to incriminate himself or to be faced with interrogation against his will. It prefers the case to be proved against him rather than that he should be condemned out of his own mouth. When Parliament thinks it right to give the power to administer questions, it should do so in clear terms, specifying who is the person to be interrogated: just as it should make clear who is the person to be made guilty of a criminal offence.”
22. It must be said that the decision in Registrar of Restrictive Trading Agreements v. WH Smith [1969] 3 All E.R. 1065 is far from surprising. The Newport Branch Manager was no doubt just one of hundreds of similar managers across Britain, he was certainly not responsible for managing the affairs of the company as a whole or indeed any significant aspect of the company’s affairs. He would have had no role in relation to formulating a strategy regarding restrictive practises. The case of R. v. Boal [1992] 3 All E.R. 177 involved Foyles, the famous bookshop on Charing Cross Road in London. The appellant was employed as an Assistant General Manager of the bookshop. He had responsibility for the day-to-day running of the shop but had been given no specific training in management, health and safety at work or fire precautions. On a day when he was in charge of the shop, while the General Manager was away on holidays, breaches of the requirements of the Fire Certificate were identified. Notwithstanding that Mr Boal pleaded guilty in the trial court, the Court of Appeal was prepared to entertain an appeal against conviction and indeed allowed the appeal.
23. The case of Woodhouse v. Walsall Metropolitan Borough Council [1994] 1 BCLC 435 was the case which the trial judge felt was most on point. Mr Woodhouse was the site manager and was charged with an offence under the Control of Pollution Act. He was convicted but his appeal was allowed, on the basis that the magistrates, in determining whether he was a manager within the meaning of s. 87 of the 1974 Act, had misdirected themselves by asking the question whether he was a person in real authority when he would only be criminally liable if it could be shown that he was a decision maker within the company having both the power and responsibility to decide corporate strategic policy and strategy. The appellant’s job description was as General Manager of the Minworth site, which was the largest site within the company. He reported to the Special Waste Director, who was one of the directors of Caird Environmental Limited and was a member of the Group Executive Management Committee. Mr Woodhouse was not a member of this committee.
24. A case that goes the other way is the case of In Re a Company [1980] 1 All E.R. 284. That involved an application by the DPP for an order under s. 441 of the Companies Act 1948 authorising a police officer and civil servant to inspect all the books and records of the company. An affidavit supporting the application indicated that there was reasonable cause to believe that fraudulent statements were sent to customers of the company on the instructions of a departmental manager in which the company claimed more money than it was entitled to receive. Templeman L.J. felt the functions performed by the Departmental Manager were quite sufficient to constitute him a manager. However, it is to be noted that he observed that s. 441 did not convict anyone. It merely enabled a judge of the High Court on the application of experienced and responsible officials mentioned in the section to make quite sure that where there is a slightly unpleasant aroma hanging around, somebody should be sent in to trace the source and find out what is going on. It will be immediately apparent that what is in issue here goes far beyond sending someone to find out what is going on. Here, Mr N. was charged with serious offences carrying significant penalties.
25. The decision of the House of Lords in the case of Tesco Supermarkets Limited v. Nattrass [1971] 2 All ER 127 involved a prosecution under the Trade Descriptions Act in a situation where washing powder was being sold in a particular Tesco store at a price higher than was advertised in the shop window. The appellants contended that they had a defence to the charge in that the commission of the offence was due to the act or default of another person, in this case the Store Manager. The House of Lords concluded that Mr Clement, the Store Manager, was one of several hundred store managers who could not be identified with the company. The case of J. Armour v. Skeen [1977] I.R.L.R. 310 related to a prosecution of the Director of Roads for Strathclyde Regional Council under various provisions of the Factories Act. It was argued, referring to cases such as Tesco v. Nattrass that the appellant did not fall within the class of Manager, Secretary or other similar officer. However the High Court of Justiciary had no difficulty in holding that he came within the ambit of the class of persons referred to.
26. While the Court has taken some time to refer to some of the authorities that were opened to the trial court and to this Court, it is somewhat hesitant about the continuing relevance of some of the older authorities. The Waste Management Act 1996 is a modern statute. The phrase “Director, Manager, Secretary or other similar officer of a body corporate or a person who is purporting to act in any such a capacity” must be seen in a modern context. It is to be noted that the section deals with directors, managers, secretaries or other similar officers of a body corporate. It is clear therefore that the individuals must hold responsibility at a corporate level. The manager of an individual branch of a bank is not to be equated with a manager of the bank. At the same time it must be appreciated that time has moved on since the discussions in Gibson v. Barton [1875] L.R. 10 QB 329. Nowadays it is not unusual to find Finance Directors, Human Resource Directors and IT Directors in large corporations, to give but some examples. In other companies the titles may vary, so one may have Finance Managers, Human Resources Managers and IT Managers. Other companies may have Chief Financial Officers or Chief Marketing Officers. Responsibilities may be distributed in such a way that it would be difficult to say that any one individual was responsible for the management of the whole affairs of the company. However, if the individual’s role is a significant one then the fact that there may be some particular areas of the company activity with which he does not have an involvement does not mean that he is not to be regarded as a manager of the corporation. Very significant responsibilities can be entrusted to an Assistant General Manager, to regional managers but also individuals such as safety managers to whom very important areas of responsibility are entrusted. Such individuals may properly be regarded as “other similar officers” within the terms of s. 9(1) of the Waste Management Act 1996 and comparable provisions of other statutes where the same formula is used. The Court has already made the comment that the manager of a branch of a bank would not be regarded as a manager of the bank. This was with reference to a bank having a nationwide branch network. The situation would be quite different if the bank only had one place of business or a very small number of places of business. The phrase “other officer” as distinct from “Director” or “Secretary” of the company must refer to individuals having a similar stature and exercising similar responsibility to what might be expected of a company director or company secretary. Certainly, on one view of the evidence at least Mr N. was managing the Kerdiffstown facility which was Neiphin’s core activity. It may not be to overstate matters to say that Kerdiffstown was Neiphin.
27. In the Court’s view, the trial judge was in error in focusing his attention on whether there was evidence that Mr N. had the capacity to direct the whole of the affairs of the company and the power and responsibility to decide corporate strategy. The question, really, to have been asked was whether Mr N. was functioning as a Senior Manager, having functional responsibility for a significant part of the company’s activities and having direct responsibility for the area in controversy, namely the management of the Kerdiffstown waste site. Having indicated its view that the trial judge was in error, the Court will, in accordance with the indications it gave at an earlier stage, hear counsel on both sides in relation to what further orders should follow.
O’Brien v DPP
[2014] IESC 39
This is an appeal by Breifne O’Brien, the applicant/appellant, referred to as “the appellant”, from the judgment of the High Court (Kearns P.) delivered on the 16th May, 2013, which refused the primary relief sought by the appellant, i.e. the prohibition of his trial, but ordered that the trial, the subject matter of the proceedings entitled The DPP v. Breifne O’Brien, Bill No. DUDP 1081/2012, pending before the Dublin Circuit Criminal Court, be stayed for a period of twelve months from the 16th May, 2013.
2. The Director of Public Prosecutions, the respondent, referred to as “the DPP”, filed a cross appeal in respect of that part of the judgment and order where the High Court granted a temporary stay until the end of the second quarter of 2014.
Background Facts
3. The President described the background facts as follows:-
“The [appellant] a former businessman, stands charged with 45 charges of theft and deception contrary to ss. 4 and 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 relating to five complainants namely, Evan Newell, Louis Dowley, Martin O’Brien, Pat Doyle and Daniel Maher, all allegedly committed between the 4th December, 2003 and the 27th November, 2008 at various locations in counties Dublin and Kildare. In essence, it is alleged that the [appellant] operated a pyramid or ponzi type scheme during the course of which he sought and received large sums of money from the five complainants on the basis of fictitious investment opportunities. His alleged modus operandi was to seek money from one investor and, having promised that investor a return, when the time came for the return of the investment, if he was not able to convince the investor to reinvest in another further bogus transaction, he would seek a different investor and would use the new investment to pay off the first investment and its bogus return. This process is alleged to have been repeated over a ten to fifteen year period, but in December 2008 it became apparent that the [appellant] was in financial difficulty and was unable to repay sums allegedly invested by the complainants and other investors. It transpired that substantial monies had not been held in the manner agreed or used for the purpose agreed but rather were appropriated to fund various uses including meeting the [appellant’s] own personal lifestyle, alleged to be of a lavish and high profile nature.”
4. The appellant brought an application by way of judicial review seeking to prohibit his criminal trial on grounds that he could not now, or in the future, receive a fair trial by reason of substantial and ongoing adverse publicity.
The High Court
5. The President of the High Court stated that despite the lengthy interval since the discovery of the appellant’s alleged wrongdoing, and the proposed date of trial, it was argued by the appellant that the adverse and negative publicity surrounding his activities were such as to preclude the possibility that he would ever receive a fair trial, and that the primary relief sought was a complete bar to any trial. However, at the hearing in the High Court, and with the Court’s leave, counsel for the appellant indicated to the Court that if they did not receive the primary relief, they would seek a lengthy stay or adjournment of his trial to permit the operation of a “fade factor”.
6. The High Court reviewed the material complained of, which was categorised into four headings as follows:-
(i) remarks by Kelly J. during the course of civil proceedings against the appellant;
(ii) a chapter in a book entitled “Bust: How the Courts Have Exposed the Rotten Heart of the Irish Economy” by Dearbhail McDonald;
(iii) numerous articles, many of a lurid and sensational nature, contained in newspapers between 2008 and 2012;
(iv) a television documentary entitled “Beware Ireland, Con Artists Caught in the Act”, first televised on the 29th February, 2012, repeated on the 3rd October, 2012, and again repeated on channel 3e on the 1st January, 2013.
7. The High Court considered each of these categories, and described the material. The learned trial judge also analysed the relevant case-law.
8. The High Court accepted that there had been extensive factual and emotive publicity, and evaluated the potential impact of the material in the context of empanelling a jury, in the second quarter of 2014, to hear and determine the case.
9. The President of the High Court concluded:-
“I think the television broadcasts, taken in conjunction with the huge volume of printed newspaper articles, are such as to suggest a trial in present circumstances would constitute an appreciable risk of an unavoidably unfair trial having regard to the legal tests outlined about.
I would thus have reservations about a trial proceeding in the immediate future. That said, I see no reason why, after a reasonable interval of time, a trial, suitably managed by a judge who would give all necessary warnings and directions, could not take place.
In the case of this particular application, counsel for the [appellant] indicated that, if his application for a permanent prohibition was unsuccessful, he would in the alternative seek as long a stay as possible to allow the ‘fade factor’ to operate.
On the unchallenged evidence before the Court, a trial is unlikely to occur before the second quarter of 2014. Counsel for the [appellant] stressed that if an earlier trial date became available due to the adjournment or non-commencement of some other lengthy case, the present case might be leapfrogged to an earlier hearing date.
In those circumstances I will direct a stay on the actual trial of the [appellant] for twelve months from today’s date. This need not hold up or otherwise affect the making now of arrangements for the holding of the trial in 12 months time. I do not believe any of the material relied upon [by] the [appellant] in making this application justifies granting any more extensive relief, and certainly not the total prohibition of the trial sought on his behalf. However, that is not to say that the [appellant] would be precluded from bringing a further application if, apart from reports of this judgment and decision, there were to be a significant recrudescence of adverse publicity between now and a trial scheduled for the second quarter of 2014.”
10. The appellant filed a notice of appeal to this Court on the 24th June, 2013. In the notice, he sought a permanent order of prohibition of his trial, or, in the alternative, an order staying the trial of the appellant for such time as the Court deems appropriate, and a declaration that the criminal prosecution is a violation of the appellant’s right to trial in due course of law. The appellant set out nine grounds of appeal, as follows:-
(i) The learned trial judge erred in law and in fact in holding that the [appellant] herein would be capable of receiving a fair trial at a point in time after May of 2014 or at any point in the future.
(ii) The learned trial judge erred in law and in fact in holding that the comments of Mr. Justice Peter Kelly made in the course of prior civil proceedings and widely repeated in the print broadcast and electronic media, do not give rise to a real and unavoidable risk of unfairness.
(iii) The learned trial judge erred in law and in fact in concluding that the above comments were proportionate and balanced in all of the circumstances and that their making had been permissible and appropriate.
(iv) The learned trial judge erred in law and in fact in holding that the contents of the book entitled Bust: How the courts have exposed the rotten heart of the Irish Economy, authored by Dearbhail McDonald, a full chapter of which is devoted to the [appellant] and the allegations made in respect of him, does not give rise or contribute in any significant way to a real and unavoidable risk of unfairness.
(v) The learned trial judge erred in law and in fact in failing to have regard, when reaching his decision in the case, to the extent to which prejudicial material which is unlikely to be deemed admissible in any subsequent criminal trial of the [appellant] has been widely and repeatedly referenced and disseminated in the print, broadcast and electronic media.
(vi) The learned trial judge erred in law and in fact in failing to have any or any sufficient regard, when considering his decision in this case, to the cumulative effect of the prejudicial material, identified by the appellant in these proceedings, in relation to the appellant personally and his alleged involvement in the criminal conduct the subject matter of the said criminal trial.
(vii) The learned trial judge erred in law and in fact in holding that in all the circumstances any risk of unfairness which might arise by reason of the adverse publicity complained of, could adequately be dealt with by way of appropriate judicial warnings and directions.
(viii) The learned trial judge erred in law and in fact in holding that in all the circumstances any risk of unfairness which might arise by reason of the adverse publicity complained of, would dissipate sufficiently with the passage of time or by operation of the so-called “fade factor”.
(ix) The learned trial judge erred in law and in fact by attaching in his decision, undue weight to both the efficacy of appropriate judicial warnings and directions and the operation of the so-called “fade factor”, in remedying the impact of adverse pre-trial publicity on the minds of jurors and the attendant risk of unfairness arising therefrom, in the absence of any genuine empirical evidence for same.
Submissions
11. The Court received written submissions from the appellant and the DPP.
Oral Submissions from the Appellant
12. The appellant made oral submissions to the Court, as a lay litigant.
Adjournment Application
13. First, the appellant sought an adjournment on two grounds.
14. The appellant stated that he was a lay litigant, that he could not now afford a legal team, and that he had been unable to obtain legal aid. In those circumstances he sought an adjournment.
15. A person is entitled to legal aid if they fit the established criteria. Applications for legal aid are not a matter within the jurisdiction of this Court. Consequently, this is not a ground upon which to grant an adjournment, and so this application was refused.
16. The second ground upon which the appellant sought an adjournment was his application that the recent decision of this Court in DPP v. Gormley & White [2014] IESC 17, was relevant to his case. However, that case is not relevant to the facts and basis of this appeal, and thus is not a ground upon which to grant an adjournment in these proceedings.
Appellant’s Submissions on the Substantive Issues
17. The appellant’s oral submissions were based on a lengthy document. The Court requested the appellant to file a copy of this document with the Court, which he has done. Thus, with the assistance of this document, the key aspects of the appellant’s submissions on this appeal may be identified and considered.
18. The submissions made by the appellant were essentially threefold, although there was a degree of interconnection. These were:-
(i) The breach of the appellant’s presumption of innocence owing to the comments of Kelly J. made in the course of civil proceedings in the Commercial Court.
(ii) These comments are in breach of the appellant’s entitlement under the European Convention of Human Rights, particularly Articles 6.1 and 6.2.
(iii) The passage of 365 days will not erase the issues Kearns P. considered extant and preventative of a fair and impartial trial at that time.
Submissions on behalf of the DPP
19. On behalf of the DPP, it was submitted, in essence, that a jury properly directed can fairly try this case; that there is no real or demonstrated risk that a jury, properly directed, will decide this case on anything other than the evidence properly adduced in the trial. The DPP submitted that there was no requirement in the first instance to allow a period of “fade” in order to safeguard the appellant’s fair trial rights, particularly with regard to the limited impact of the most recent television broadcast on 3e with an apparently low viewership, the historic nature of the balance of the other publicity relied upon, and the commonsense intelligence that a jury brings to bear in dealing with a case on the basis of the evidence adduced. It was submitted that juries can be relied upon to discharge their duties carefully and cognisant of the court’s directions. It was also submitted that the order made was unnecessary in that the evidence before the Court was that the case would not come on for hearing before the second quarter of 2014 in any event.
Decision
20. In this appeal, the appellant, while advancing the threefold aspects of his appeal, relied significantly on the European Convention on Human Rights, referred to as “the ECHR”, and cases from the European Court of Human Rights, referred to as “the ECtHR”. This appears to have been a nuanced difference to the case advanced in the High Court.
21. The Court has considered carefully the documents in the case, the exhibits which set out the printed media coverage complained of, and the DVD of the TV programme which has been viewed by the members of the Court.
Charge
22. The appellant was charged on the 20th September, 2012, and in November, 2012. He had been arrested first on the 7th July, 2011, and released.
23. Much of the publicity complained of by the appellant occurred before he was charged.
24. Under s. 4A of the Criminal Justice Act, 1967, as inserted by s. 9 of the Criminal Justice Act, 1999, provisions relating to indictable offences are set out. There are provisions providing that the proceedings are not to be published or broadcast in accordance with s. 4J of the Act of 1967, which provides as follows:-
“4J.—(1) No person shall publish or broadcast or cause to be published or broadcast any information about a proceeding under this Part other than—
(a) a statement of—
(i) the fact that the proceeding has been brought by a named person in relation to a specified charge against a named person, and
(ii) any decision resulting from the proceeding,
and
(b) in the case of an application under section 4E for the dismissal of a charge against the accused, any information that the judge hearing the application permits to be published or broadcast at the request of the accused.”
25. Marie McGonagle in Media Law (Roundhall, 2003, 2nd edn.) at p. 257 refers to the section as follows:-
“The purpose of the restriction is undoubtedly to protect the accused and ensure his/her right to a fair trial. However, it could be argued that it is phrased in very broad terms and is overly restrictive in its reach. In practice, the section that it replaces was constantly breached, not necessarily in a prejudicial manner but certainly in a technical sense. The Law Reform Commission, however, recommended no change. [Consultation Paper on Contempt of Court, 1991, at p. 248; and Report on Contempt of Court (LRC 47 – 1994) at para 6. 36].”
While not determining that the section is overly restrictive, the view as expressed is of interest.
26. Once the criminal process has been commenced by a charge, there is a clear responsibility on all publishing and broadcasting bodies not to disrupt these court proceedings. This responsibility includes not publishing material which creates a real risk of an unfair trial. Publication of such information may be a contempt of court.
27. Also, there is a duty on the DPP, as the prosecutor on behalf of the people, to take all reasonable steps to protect a fair trial. This duty includes, where necessary, instituting proceedings for contempt of court.
28. Although a letter was written, prior to the hearing of the High Court on the appellant’s application, to certain media organisations, the DPP took no legal proceedings, or any proceedings, in this case.
29. The first and second of the appellant’s threefold submissions will be taken together and considered by the Court. These are:- (i) the alleged breach of the presumption of innocence of the appellant owing to the comments of Kelly J.; and (ii) that these comments are in breach of the appellant’s entitlement under the ECHR, particularly Articles 6.1 and 6.2.
30. The presumption of innocence is a fundamental principle under the Constitution, embedded in the right to a fair trial, and in the right to due process. Consequently, it is an inherent aspect of Article 38.1° of the Constitution. However, the appellant commenced his legal argument by reference to the ECHR and decisions of the ECtHR.
Case-law of the ECtHR
31. In this appeal the appellant laid stress on the ECHR. In particular, the appellant submitted that the comments of Kelly J. breached rights as protected under Articles 6.1 and 6.2.
32. Articles 6.1 and 6.2 of the ECHR provides as follows:-
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable and impartial tribunal established by law…
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
33. The European Convention on Human Rights Act, 2003, referred to as “the Act of 2003”, expressly provides in s. 4 that judicial notice shall be taken of the ECHR provisions and of:-
“(a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention or any question in respect of which that Court has jurisdiction,
(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction,
(c) any decision of the Committee of Ministers established under the statute of the Council of Europe on any question in respect of which it has jurisdiction,
and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.”
34. The appellant argued that there had been a breach of his rights under the ECHR. The ECHR does not form part of domestic law, and there is of course no cause of action or claim for a breach of the Convention as such. However, the Court considered his submissions for comparative purposes to ascertain whether the protection provided under the Constitution comprises elements of Articles 6.1 and 6.2 of the ECHR. Arising from the Act of 2003, judicial notice is taken of the provisions of the ECHR and the principles laid down in that document, in addition to the judgments of the ECtHR.
35. The appellant referred the Court to a number of cases of the ECtHR, including the following, which were of assistance to the Court.
36. In Eckle v. Germany (Application no. 8130/78, 15 July 1982) the ECtHR held that the difficulties of an investigation and the behaviour of the applicants did not, on their own, account for the length of the proceedings exceeding a reasonable time in breach of Article 6.1 of the ECHR. Unreasonable delay is not in issue before this Court, and the decision is therefore not relevant and, accordingly, references in the judgment to procedures are not relevant either.
37. The appellant relied on Deweer v. Belgium (Application no. 6903/75, 27 February 1980). The applicant in this case claimed to be a victim of “the imposition of a fine paid by way of settlement under constraint of provisional closure of his establishment” contrary to Article 6.1 of the ECHR. The issue was whether the manner in which the law was applied in the specific circumstances was compatible.
38. The ECtHR considered the issue of “charge” at para. 42 and stated:-
“In ‘criminal’ matters, the ‘reasonable time’ stipulated by Article 6 par. 1 (art. 6-1) ‘necessarily begins with the day on which a person is charged’ (see the Neumeister judgment of 27 June 1968, Series A no. 8, p. 41, par. 18). And the ‘reasonable time’ may on occasion ‘start to run from a date prior to the seisin of the trial court, of the ‘tribunal’ competent for the ‘determination … of [the] criminal charge’(see the Golder judgment of 21 February 1975, Series A no. 18, p. 15, par. 32).”
39. The ECtHR reviewed the relevant Belgian law and held, at para. 46:-
“There accordingly exists a combination of concordant factors conclusively demonstrating that the case has a criminal character under the Convention. The ‘charge’ could, for the purposes of Article 6 par. 1 (art. 6-1), be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence. In several decisions and opinions the Commission has adopted a test that appears to be fairly closely related, namely whether ‘the situation of the [suspect] has been substantially affected’ (Neumeister case, Series B no. 6, p. 81; case of Huber v. Austria, Yearbook of the Convention, vol. 18, p. 356, 67; case of Hätti v. Federal Republic of Germany, ibid., vol. 19, p. 1064, 50, etc.). Under these circumstances, the Court considers that as from 30 September 1974 the applicant was under a ‘criminal charge’.
Article 6 (art. 6) was therefore fully applicable by virtue of the last-mentioned phrase.”
40. The applicant in Deweer agreed to settle his case. However, in the circumstances, the ECtHR held at para 54:-
“To sum up, Mr. Deweer’s waiver of a fair trial attended by all the guarantees which are required in the matter by the Convention was tainted by constraint. There has accordingly been breach of Article 6 par. 1 (art. 6-1).”
41. The ECtHR held that the question whether Article 6.2 and Article 6.3 were observed was absorbed into the question. The finding of a breach of Article 6.1 dispensed the Court from also examining the case in light of Articles 6.2 and Art. 6.3.
42. The Deweer v. Belgium decision does not assist this Court on the issues raised before it on this appeal as there is no question of settlement in the proceedings or constraint on the appellant.
43. The appellant relies on the above mentioned authorities to support the contention that, as Kelly J. referred the case to the Garda Síochána on the 19th January, 2009, that constitutes the effective date of charge.
44. However, the Court dismisses this submission. It is not a ground of appeal. Addressing the matter, notwithstanding, it is clear from the quotation above that ‘charge’ for the purpose of Article 6.1 of the ECHR is official notification given to an individual by the competent authority of an allegation that he or she has committed a criminal offence.
45. In this case, in civil proceedings, a judge merely indicated that he was referring the papers to the Garda Bureau of Fraud. That is not official notification to the appellant by the competent authority of an allegation that he has committed a criminal offence.
46. The appellant was arrested first on the 7th July, 2011, and released. He was charged on the 20th September, 2012, and in November, 2012, in accordance with the procedure set out previously in this judgment. The referral to the Garda Bureau of Fraud of the papers by Kelly J. in the civil proceedings before the Commercial Court was not the date of charging the appellant in criminal proceedings.
47. The appellant submitted that he supported his appeal with a range of decisions of the ECtHR which set out the fundamental requirement in a democratic society that the courts inspire confidence in the public and, importantly, as far as criminal proceedings are concerned, above all in the accused. The appellant submitted that, following the remarks of Kelly J., he has little prospective confidence in the impartiality of a tribunal convened to “criminally try him on the charges currently before the Court”.
48. The DPP has argued that decisions of the ECtHR raised by the appellant are not relevant to his appeal. The Court has considered this submission together with the submissions of the appellant.
49. The applicant in Kyprianou v. Cyprus (Application no. 73797/01, 15 December 2005) alleged a breach of a number of articles of the ECHR, including Articles 6.1 and 6.2. The applicant was a lawyer defending a person accused of murder before the Limassol Assize Court. He was subsequently convicted and imprisoned for contempt of court. The applicant claimed that although the domestic court had provided the opportunity for him to make submissions on the issue of contempt, they had been limited to the issue of mitigation of penalty. It was contended that the judges of the Limassol Assize Court had failed to satisfy the requirement of impartiality under both an objective and subjective test.
50. The appellant drew the attention of this Court to p. 29 of the decision, which was a consideration by the ECtHR of the issue of subjective bias. This aspect of the case was directed to the judges’ personal conduct. The ECtHR examined a number of aspects of the judges’ conduct. The Court was referred to the specific language adopted by the judges and held:-
“… the emphatic language used by the judges throughout their decision conveyed a sense of indignation and shock, which runs counter to the detached approach expected of judicial pronouncements. In particular, the judges stated that they could not ‘conceive of another occasion of such a manifest and unacceptable contempt of court by any person, let alone an advocate’ and that ‘if the court’s reaction is not immediate and drastic, we feel that justice will have suffered a disastrous blow’.”
The ECtHR held that the Limassol Assize Court had failed to satisfy the objective and subjective tests for impartiality, and held that the domestic court was not impartial within the meaning of Article 6.1 of the ECHR. While the applicant had raised Article 6.2, the ECtHR held that as it had already found that there was a violation of Article 6.1 of the ECHR, the Grand Chamber considered no separate issue arose under this heading and therefore did not address the presumption of innocence issue raised by the applicant.
51. The above case is not applicable to the circumstances of this appeal. The statements of Kelly J. were made in a civil court, after the appellant had not contested the matters brought by plaintiffs before that Commercial Court. These were not the criminal proceedings and indeed Kelly J. has no role as a judge in the criminal proceedings. Consequently, the issue of alleged bias by Kelly J. has no relevance to the criminal trial of the appellant, except as to the issue of pre-trial publicity, which will be addressed further in this judgment. There arises no issue of pre-judgment or bias in this appeal.
52. The appellant referred the Court to Minelli v. Switzerland (Application no. 8660/79, 25 March 1983) and in particular para. 37 of that decision. The applicant in Minelli was a journalist who had published an article in the ‘National Zeitung’ containing accusations of fraud against a company, Télé – Répertoire S.A. and its director, Mr. Vass. The facts recounted by the applicant had previously been the subject of an article by another journalist, Mr. Fust, in the daily newspaper, ‘Blick’. The company and Mr. Vass brought a criminal complaint of defamation against both journalists. The Zurich Assize Court decided it could not hear the complaint against the applicant because the absolute limitation period of four years had expired. The domestic court also held that the applicant should bear two thirds of the costs. This finding was based on an article of the Swiss Code of Criminal Procedure which provided that the losing party bear the costs of the proceedings and pay compensation to the other party in respect of his expenses, save in such special circumstances which warrant departure from the rule. The Zurich Assize Court held that it must make a costs order reflecting the judgment that would have been given had the limitation period not expired. It held that it was to be assumed that if the proceedings had not been prevented by reason of the expiration of the limitation period that the criminal complaint would “very probably lead to the conviction of the accused”.
53. In the circumstances of that case, the ECtHR stated, commencing at para. 37:-
“37. In the Court’s judgment, the presumption of innocence will be violated if, without the accused’s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty. The Court has to ascertain whether this was the case on 12 May 1976.
38. The Chamber of the Assize Court based its decision on Article 293 of the Zürich Code of Criminal Procedure, which, in the case of a private prosecution for defamation, permits a departure, in special circumstances, from the rule that the losing party is to bear the court costs and pay compensation to the other party in respect of his expenses (see paragraph 19 above). In the light of Zürich case-law, it found that in the present case “the incidence of the costs and expenses should depend on the judgment that would have been delivered” had the statutory period of limitation not expired. To decide this point, it had regard to four matters (see paragraph 13 above): the fact that the case was virtually identical to that of the journalist Fust, which had resulted on 2 September 1975 in a conviction (see paragraph 10 above); the seriousness of the applicant’s accusations against Mr. Vass; the applicant’s failure to verify his allegations; and the negative outcome of the 1972 prosecution of Mr. Vass (see paragraph 9 above).
For these reasons, which were set out at length and cannot be dissociated from the operative provisions (see the above-mentioned Adolf judgment, Series A no. 49, p. 18, § 39), the Chamber of the Assize Court concluded that, in the absence of limitation, the ‘National Zeitung’ article complained of would ‘very probably have led to the conviction’ of the applicant. In setting out those reasons, the Chamber treated the conduct denounced by the private prosecutors as having been proved; furthermore, the reasons were based on decisions taken in two other cases to which, although they concerned the same facts, Mr. Minelli had not been a party and which, in law, were distinct from his case.
In this way the Chamber of the Assize Court showed that it was satisfied of the guilt of Mr. Minelli, an accused who, as the Government acknowledged, had not had the benefit of the guarantees contained in paragraphs 1 and 3 of Article 6 (art. 6-1, art. 6-3). Notwithstanding the absence of a formal finding and despite the use of certain cautious phraseology (‘in all probability’, ‘very probably’), the Chamber proceeded to make appraisals that were incompatible with respect for the presumption of innocence.”
Accordingly, the ECtHR found that there had been a violation of Article 6.2.
54. However, no such circumstances arise in this case. The particulars are entirely different, and distinguishable. The appellant is charged with criminal offences and has not yet had his trial. The question of his guilt or innocence has not yet been determined, and he is presumed innocent of the criminal charges. Kelly J. did not make any decision of criminal guilt, and did not make any finding as to the probability of the success of any criminal proceedings, as was then the case, if instituted. Thus, in contrast, in the Minelli case a court made a costs findings in favour of an unsuccessful party on the basis that a conviction in the case of the applicant was probable (if no limitation period applied) It was the references to the probability of a conviction in that case that constituted a violation of the presumption of innocence. Furthermore, the prosecution’s case was treated as having been proved. In contrast, in this case, Kelly J. referred to prima facie evidence in civil proceedings that will not be treated as having been proved in the forthcoming trial.
55. The Court’s attention was also brought to the decision in Allenet de Ribemont v. France, (Application no. 15175/89, Strasbourg 10 February 1995). In that case, some of the highest ranking officers in the French Police Force referred to the applicant, without any qualification or reservation, as being one of the instigators of the murder of a member of Parliament, and thus an accomplice in the murder. The ECtHR considered this to be a declaration of his guilt, which encouraged the public to believe him guilty, prejudged the assessment of the facts, and thus found that there was a breach of Article 6.2.
56. However, the facts of that case are different and distinguishable from this case. Notably, in Allenet de Ribemont the statement announcing the guilt of the applicant was made at a press conference reported by two news programmes on two French television channels, and those making the statements were two high ranking police officers and the Minister of the Interior. Further, the two police officers making the statements were conducting the investigation of the crime with which the applicant was subsequently charged.
57. Thus, this case may be distinguished by factors including that, in the Allenet de Ribemont case, the assertions of guilt were made in public press conferences, by two high ranking police officers who were directly involved in the criminal investigation. In contrast, in this case, the remarks made by Kelly J. were in the context of civil proceedings, which the appellant did not oppose, and where there was a subsequent referral to the police for investigation. Further, the remarks of Kelly J. do not constitute “clearly a declaration” as to the appellant’s guilt, as was found in the Allenet de Ribemont case.
58. The decision of the ECtHR in Burkevicus v. Lithuania (Application no. 48297/99, 26 March 2002), was also brought to the attention of the Court. Commencing at para. 49, the ECtHR held:-
“49. The Court recalls that the presumption of innocence enshrined in Article 6 § 2 of the Convention is one of the elements of a fair criminal trial guaranteed- by Article 6 § 1. It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty. Moreover, the presumption of innocence may be infringed not only by a judge or court but also by other public authorities (Daktaras v.Lithuania, no. 42095/98. In the above mentioned Daktaras case the Court emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence. Nevertheless, whether a statement of a public official is in breach of the presumption of innocence must be determined in the context of they particular circumstances in which the impugned statement was made (ibid.).
50. The Court notes that in the present case the impugned statements were made by the Prosecutor General and the Chairman of the Seimas in a context independent of the criminal proceedings themselves, i.e. by way of an interview to the national press.
The Court acknowledges that the fact that the applicant was an important political figure at the time of the alleged offence required the highest ‘State officials, including the Prosecutor General and the Chairman of the Seimas, to keep the public informed of the alleged offence and the ensuing criminal proceedings. However, it ‘cannot agree with the Government’s argument that this circumstance could justify any use of words chosen by the officials in their interviews with the press.
…
51. Furthermore, the statements at issue were made just a few days following the applicant’s arrest, except one impugned statement of the Chairman of the Seimas which was made more than a year later (see § 30 above). However, it was particularly important at this initial stage, even before a criminal case had been brought against the applicant, not to make any public allegations which could have been interpreted as confirming the guilt of the applicant in the opinion of certain important public officials.
52. The applicant relies on two statements of the Prosecutor General, the first made on the day on which leave was sought from the Seimas to institute criminal proceedings against the applicant, in which the Prosecutor General confirmed that he had ‘enough sound evidence of the guilt’ of the applicant, and the second, two days later, when he qualified the applicant’s ‘offence as an attempt to cheat’. . While the statements, in particular the reference to the applicant’s guilt, give some cause for concern, the Court accepts that they may be interpreted as a mere assertion by the Prosecutor General that there was sufficient evidence to support a finding of guilt by a court and, thus, to justify the application to the Seimas for permission to bring criminal proceedings.
53. Of more concern are the statements made by the Chairman of the Seimas to the effect that he entertained no doubt that the applicant had accepted a bribe, that he had taken money ‘while promising criminal services’, and that he was a ‘bribe-taker’. In this respect the Court has had particular regard to the fact that the Seimas had lifted the applicant’s parliamentary immunity to enable criminal proceedings to be instituted against him.
The Court does not agree with the Government that all the Chairman’s references to ‘bribery’ were irrelevant to this application. It is undisputed that the facts of the offence committed by the applicant, whilst subsequently classified by the prosecutors and the courts as an attempt to cheat, had frequently been interpreted by the media and the general public, prior to the applicant’s conviction, as ‘bribery’ (see, for instance, § 30 above). It has not been contended by the Government that, by stating that the applicant was a “bribe-taker’, the Chairman of the Seimas was not referring to the criminal proceedings in question. In the Court’s view, this remark could therefore be interpreted as confirming the Chairman’s view that the applicant had committed the offences of which he was accused.
While the impugned remarks of the Chairman of the Seimas were in each case brief and made on separate occasions, in the Court’s opinion they amounted to declarations by a public official of the applicant’s guilt, which served to encourage the public to believe him guilty and prejudged the assessment of the facts by the competent judicial authority.
54. There has therefore been a breach of Article 6 § 2 of the Convention.”
59. The facts of the above case and this appeal are different. In Burkevicus, the impugned statements were made by the Prosecutor General in an interview by the press, just a few days after the applicant’s arrest for obtaining property by deception. The Prosecutor General included that he had “enough sound evidence of the guilt” of the applicant. The ECtHR was satisfied that this could be interpreted as a “mere assertion” that there was sufficient evidence to support the bringing of criminal proceedings.
60. However, it was the statements made by the Chairman of the Seimas, including that he had no doubt that the applicant had accepted a bribe, and that he was a bribe taker, that caused the ECtHR concern. It was held, as set out above, that the statements of the Chairman of the Seimas were declarations by a public official of the applicant’s guilt, which encouraged the public to believe him guilty, and was a breach of Article 6.2 of the ECHR.
61. However, Burkevicus is also distinguishable from the case before the Court, for the following reasons. The impugned statements in Burkevicus included those of the Chairman of Parliament in a public interview to the national press. The Chairman, in public, stated that he had “no doubt” but that the applicant was guilty. This was an unequivocal statement of the applicant’s guilt. There was no such statement in this case. Also, it is noteworthy, that the Prosecutor General’s statement to the effect that he had “enough sound evidence” of the guilt of the applicant, was taken by the ECtHR to be a mere statement of the justification for the institution of proceedings.
Irish Law
62. The right to a fair trial is a constitutional right rooted in Article 38.1° of the Constitution, which contains as an element of that right the presumption of innocence.
63. The relevant law as to the right to a fair trial is well established in cases including Savage v. DPP [2009] 1 IR 185; Devoy v. DPP [2008] 4 IR 235; Z. v. DPP [1994] 2 I.R. 476; D. v. DPP [1994] 2 I.R. 465; Redmond v. DPP [2002] 4 I.R. 133; DPP v. Haugh [2000] 1 I.R. 184, Rattigan v. DPP [2008] 4 IR 639.
64. There is no necessity to restate the law, other than to state that the courts intervene to prohibit criminal proceedings in circumstances where, it is established that there is a real risk that by reason of the circumstances of the case the applicant could not obtain a fair trial. The onus rests upon the applicant who seeks to prohibit his or her trial. The appellant in this case submitted that he could not receive a fair trial due to the prejudicial pre-trial publicity. The individual’s right to a fair trial is a superior right to that of the community to prosecute, and a trial should not proceed if there is a real risk to a fair trial. However, the right of the community to prosecute, especially serious crime, and the position of victims, must also be considered by the Court
65. As Geoghegan J. stated in Rattigan v. DPP [2008] 4 IR 639 at para. 50:-
“What I mean by that is that a court will only stop a trial if it is satisfied that the normal safeguard procedures in a trial, including the making of appropriate directions, will not, in fact, achieve a fair trial. In practice, this will rarely be the case. As far as adverse pretrial publicity is concerned, the so called fade factor is most important. If a reasonable time has elapsed between the publicity and the trial, the risk is altogether smaller and this will be especially so if a trial is in a city such as Dublin and not in a small town where a crime has been committed. There cannot be complete avoidance of the risk because even in a case where eleven out of the twelve jurors may never have noticed particular names when reading an article, if they did read it or, equally probably may have forgotten the names, there may still be one single juror who did know who the accused was and who may remind his or her fellow jurors of the offending article. Quite frankly, every eventuality cannot be catered for. It should also be borne in mind that in the case of a serious crime such as murder, where the trial lasts several days or perhaps more, the dangers of an unfair result based on pretrial publicity will normally reduce as time goes on. By that time the jury will have become accustomed to their judicial role explained to them ad nauseam by the trial judge and counsel on both sides. Furthermore, it must always be borne in mind, as it has been in so many decisions, that there is no evidence to suggest that, in general at least, jurors do not exercise their function properly and with the required independence of mind.”
Conclusions
66. In this case, where the issue is prejudicial adverse publicity, there are several elements of the publicity, as set out previously, and they include:-
(i) the statements by Kelly J. in the Commercial Court;
(ii) the media coverage, including those statements;
(iii) a chapter in the book written by Dearbhail McDonald entitled “Bust: How the Courts Have Exposed the Rotten Heart of the Irish Economy”;
(iv) the television documentary entitled “Beware Ireland, Con Artists Caught in the Act”, televised on the 29th February, 2012, repeated on the 3rd October, 2012, on channel TV3, and repeated on channel 3e on the 1st January, 2013.
67. The Court has considered each of these forms of the pre-trial publicity from the aspect of the Constitution of Ireland and has taken into consideration the ECHR and the decisions of the ECtHR brought before the Court by the appellant for comparative law purposes. Indeed, the submissions by the appellant to this Court were primarily in relation to the statements of Kelly J. and the jurisprudence, as opened, of the ECtHR.
68. The statements of Kelly J. in the Commercial Court in and around January, 2009, included a reference to ‘prima facie evidence’ of criminal activity, a referral of the papers to the Garda Bureau of Fraud, a comparison of the appellant to the character Montague Tigg in the novel Martin Chuzzlewit by Charles Dickens, references to the “Irish Bernie Madoff” and that the appellant had fallen on his sword, and a reference to the Shanahan stamp scandal.
69. The first and second ground of the appellant’s threefold submissions are that (i) there was an alleged breach of the presumption of innocence of the appellant owing to the comments of Kelly J., and (ii) that these comments are in breach of the appellant’s entitlement under the ECHR, particularly Articles 6.1 and 6.2.
Presumption of Innocence
70. In relation to the first submission, the Court accepts that there was unsatisfactory publicity. While some of Kelly J.’s comments were justified by the uncontested material and the findings of fact in the civil proceedings based on the evidence before him, they were not wise comments, and the learned judge ought to have considered the possibility that there would be subsequent criminal proceedings. However, the question for this Court is to determine whether such observations would prejudice a trial now so as to give rise to a real risk of an unfair trial.
71. Applying the exacting constitutional principles of due process of law, the right to a fair trial, and the presumption of innocence, the circumstances are not such as to prohibit the criminal trial of the appellant. While the statements of Kelly J. in the Commercial Court were strong, and were reported widely, they arose in a civil case where the appellant had not opposed the applications of his creditors in relation to facts indicating a type of ponzi scheme. The judge made no decision in relation to any criminal trial, other than to refer papers to the Garda Bureau of Fraud, so that consideration could be given as to whether an investigation was warranted. Kelly J. will not be a judge on any criminal trial of the appellant. In the said civil proceedings, the appellant did not challenge the allegations, and it was the alleged facts, which were not contested, which were the primary genus of the publicity. Thus, indeed, the appellant is relying on the fact that he did not contest the proceedings in the Commercial Court to stop his criminal trial. The statements made in the Commercial Court by the High Court judge were based on the evidence before him, including the fact that the appellant did not contest the facts. For example, Kelly J. said that there was prima facie sufficient evidence before him to refer the matter to the Garda Bureau of Fraud. It is then for the DPP to determine if there is to be a prosecution, and if she so determines, there is then a criminal trial, at which a basic principle is the presumption of innocence.
72. The fact that certain comments made by Kelly J. were not wise, does not mean that a person can no longer be prosecuted, in circumstances where it is possible to ensure a fair trial notwithstanding the comments and related media publicity.
73. The essential issue for this Court is to determine whether there is a real risk of an unfair trial of the appellant in June 2014, or later. A very long period has elapsed since the remarks were made. This period is sufficient to allow public memory to fade. Applying the principles of the Constitution, the appellant is presumed innocent, and there is no real risk in the circumstances to a fair trial. Consequently, the Court would dismiss this submission.
The passage of time
74. The third submission by the appellant was that the passage of 365 days would not erase the issues that Kearns P. considered extant and preventative of a fair and impartial trial at that time.
75. The issues raised in this appeal require a delicate balance. There was publicity arising from the statements of Kelly J., the book, and the TV programme. It must be acknowledged that there was a damaging aspect to that publicity. However, time has since elapsed. The statements of Kelly J. were made in and around January 2009, most of the sensational articles printed were between 2009 and 2012; the book was published in 2010; and the television documentary was screened twice in 2012, while the repeat in January 2013 on the 3e channel had low audience figures.
76. The circumstances giving rise to the civil proceedings, and the fact that the appellant did not refute the proceedings, were a cause of public concern. Such cases come before the courts. The media should strive better to contain reporting prior to criminal proceedings, when they may be anticipated. The DPP has a duty to apply for rulings of the courts to protect a fair trial. However, it remains a matter for the courts to achieve a balance in all such cases.
77. In the circumstances of this case, the fact that years have passed since the bulk of the publicity, the application of the fade factor, the fact that a trial judge sitting in a criminal court will be in a position to give directions to the jury, and to ensure that there is a fair trial, leads this Court to the conclusion that there is no longer a real risk of an unfair trial, and that the appellant enjoys the constitutionally protected presumption of innocence in any trial. The Court would dismiss the appeal. Consequently, the trial of the appellant may proceed at any time from June 2014.
Cross Appeal
78. The DPP filed a cross appeal in respect of that part of the judgment of the High Court which granted a temporary stay until the end of the second quarter of 2014. By the efflux of time, since the judgment of the High Court and the hearing of this appeal, that stay became a reality for the year. Thus, there is no issue to be determined in relation to that stay, and the cross appeal will also be dismissed.