Supreme Court dismisses appeal for murder trial injunction due to pre-trial media coverage and strong forensic evidence.

[2008] IESC 34

THE SUPREME COURT

Appeal No. 353/2006

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN/

BRIAN RATTIGAN

Appellant/Applicantand

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Respondent

JUDGMENT of Mr. Justice Geoghegan delivered the 7th day of May 2008

1. This is an appeal from an order of the High Court (O’Higgins J.) refusing an injunction against the above-named respondent

proceeding with the prosecution of a trial for murder against the above-named appellant, the order having been made in a judicial

review application brought by the same appellant.

2. The original grounds for which leave to apply for judicial review was granted for the most part related to alleged prosecutorial delay

but, to some extent, also covered an alleged wrongful failure to electronically record interviews. As a consequence of a later order

granting leave to amend the original statement of grounds, there were five such additional grounds permitted, but in their various

formulations they all amounted to the one essential allegation that prejudicial pre-trial publicity by the media had arisen and that as a

result, there was a real risk of an unfair trial.

3. Since the judgment of the High Court, there were further newspaper articles which of themselves or alternatively combined with

each other and with the earlier articles were alleged to give rise to a risk of an unfair trial. Some of these articles appeared between

the judgment of the High Court and the hearing of the appeal before this court. Others appeared after the main hearing of the appeal

before this court but on foot of a motion concerning them and requesting that they be taken into account, there was a later sitting

of this court to deal with the issue.

4. What happened in practice was that the alleged offensive articles which had appeared between the judgment and the hearing of

the appeal were made the subject matter of two motions on notice grounded on affidavits exhibiting the articles and requesting that

they be admitted as additional evidence for the purposes of the appeal. The Director of Public Prosecutions consented to the orders

sought in each of these motions. In relation to the articles which appeared after the main hearing of the appeal, this court was

requested to hear a similar motion which it did, and on that occasion, the Director of Public Prosecutions adopted a neutral stance,

quite properly taking the view that at that stage it was a matter for the court. The court ruled that it would take the matters most

recently complained of into consideration in determining the appeal.

5. I intend first to treat of the matters which were before O’Higgins J. in the High Court.

6. Let me say, at the outset, that on these matters I find myself in complete agreement with O’Higgins J. The learned High Court

judge, in a carefully written reserved judgment, has set out the arguments of both sides on each issue and has given very clear

reasons for each of his conclusions. I intend now to summarise his judgment within the structure that he has adopted. First of all, the

learned judge summarises the relevant facts. He does this in about three pages to which I would refer for a fuller account. The

following is a shortened version. The judge explains that in the early hours of the 25th August, 2001, Declan Gavin was fatally

stabbed at the entrance to a fast food outlet in Crumlin in Dublin and a murder investigation commenced. There was evidence that

the assailant emerged from a car with a balaclava over his head and stabbed the deceased. Initially, the deceased tried to seek

refuge in the fast food outlet but was pursued by the assailant who failed to gain access. A fingerprint of the accused made in blood

and which DNA testing linked with the deceased was found on the window of the shop. Despite that, the appellant allegedly told the

gardaí that he was never at the fast food outlet. He alleged that he was at his brother’s birthday party in a private house. In addition

to the fingerprint evidence, the prosecution seek to adduce evidence by three witnesses based on statements which they made when

in custody. It will also be the prosecution case that certain observations made by the appellant while he was in custody were

tantamount to admissions of involvement in the crime. The appellant was first arrested on suspicion of murder on the 4th September,

2001, under section 4 of the Criminal Justice Act, 1984. He was released the following day without charge. He was again arrested on

the 22nd November, 2001 and was questioned in relation to the possession of firearms. On that occasion, he was also questioned

about the murder but denied involvement. He was released on the following day. On the 4th February, 2003, the appellant’s same

brother who was a potential witness was killed. On the 14th March, 2002, the gardaí sent a file to the chief prosecution solicitor

which was received there on the 19th March, 2002 and forwarded to the office of the Director of Public Prosecutions on the 21st

March, 2002. There is a finding by the learned trial judge that the preparation and sending of the garda file to the chief prosecutions

solicitor was done with “commendable alacrity”.

7. Eighteen months later i.e. in September, 2003, the Director of Public Prosecutions directed that the appellant be charged with

murder. That lapse of time forms a substantial part of the prosecutorial delay alleged. I will return to it later in the judgment. On the

18th September, 2003, the appellant was arrested and charged with murder and remanded in custody until the 25th November, 2003.

There were a number of subsequent remands due to the failure on the part of the Director of Public Prosecutions to have ready the

book of evidence and when the matter came before the District Court for the seventh time, the judge struck the case out. That was

on the 18th December, 2003.

8. Almost sixteen months then elapsed before the appellant was charged again. Alleged excuses for this delay were contained in an

affidavit of one of the solicitors in the chief prosecution solicitor’s office. The excuses are not impressive. One of the excuses was

alleged difficulties caused by the decision of the Court of Criminal Appeal in DPP v. Bowes, a judgment delivered on the 22nd

November, 2004. As a consequence, some changes were made in the book of evidence and in particular the prosecution sought to

rely on fingerprints taken from the appellant while he was in prison for the purposes of comparison with the fingerprint found at the

scene of the crime. The appellant has alleged not only that all this delay was blameworthy in a general sense but that in particular

the delay resulted in this additional fingerprint evidence being used. I cannot accept this latter argument for reasons to which I will

return.

9. The learned High Court judge was quite rightly, in my view, strongly critical of the Director of Public Prosecutions for the delay

between the receipt by the office of the Director of Public Prosecutions of the file in March, 2002 and the direction to prosecute in

September, 2003. I do not accept the submissions to the contrary. The learned judge said the following:

“In my view, there has been a culpable and unjustified delay on the part of the prosecuting authorities from the time in

March, 2002, when the file was forwarded to the office of the Director of Public Prosecutions and September, 2003, when

the prosecution of the applicant was directed. The explanation for the delay in recharging the applicant after the striking

out of the case in December, 2003, on the basis that the preparation of the book of evidence was awaited is not

satisfactory. It is reasonable to infer that the book of evidence was in a reasonably advanced state of preparation prior

to the striking out of the case, as there had been various adjournments of different duration prior to the striking out of

the case. In any event one would have thought that following the striking out of the case for failure to furnish the book

of evidence that the prosecution would have acted with some degree of urgency.”

10. In support of that proposition, an unreported judgment in this court delivered by McGuinness J. on 2nd March 2005 in Blood v. DPP

is cited.

11. Having thus summarised the facts and having commented adversely on some elements of the delay, he turned to treat of the

relevant law. He refers to the two seminal cases D v. Director of Public Prosecutions [1994] 2 I.R. 465 and Z v. Director of Public

Prosecutions [1994] 2 I.R. 476. What the learned High Court judge was correctly adopting is encapsulated in a passage from the

judgment of Finlay C.J. in Z v. Director of Public Prosecutions cited above to be found at p. 506 of the report.

“This court in the recent case of D v. The Director of Public Prosecutions [1994] 2 I.R. 465 unanimously laid down the

general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the

ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk

that by reason of those circumstances (which in that case also were pre-trial publicity) he could not obtain a fair trial.”

12. The judge went on to refer to the oft cited passage from the judgment of Denham J. in D v. The Director of Public Prosecutions

cited above where at page 474 of the report, she said the following.

“The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a

hierarchy of constitutional rights it is a superior right.

A court must give some consideration to the community’s right to have this alleged crime prosecuted in the usual way.

However on the hierarchy of constitutional rights there is no doubt that the applicant’s right to fair procedures is superior

to the community’s right to prosecute.

If there is a real risk that the accused would not receive a fair trial then there would be no question of the accused’s

right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.”

13. That last passage was expressly approved of by Finlay C.J. in Z at 507 of the report but he added:

“With regard to the general principles of law I would only add to the principles which I have already outlined the obvious

fact to be implied from the decision of this court in the case of D v. Director of Public Prosecutions that where one speaks

of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be

avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial

must be an unavoidable unfairness of trial.”

14. This clarification (which I think is a correct interpretation of it) with slight variations has been expressly repeated in numerous

later cases relating to delays in bringing to trial sexual crimes. It has in turn in my view sometimes led to unfortunate and unnecessary

consideration by High Court judges as to what might be “appropriate rulings and directions” and as to whether there could be such.

On a true analysis, there is no such thing as a potentially unfair trial which can be made fair by appropriate directions. If a trial can be

made fair by appropriate directions, it was never potentially unfair in the first place. I would respectfully suggest that though well

intended there is an element of tautology in introducing the “appropriate direction” concept. It can cause unnecessary worry to a trial

judge as it famously did in one instance to McGuinness J. The “appropriate” directions which are given by a trial judge will be different

in each trial depending on the circumstances of the case. It ought to be assumed that any trial judge in any trial will give appropriate

directions. If he or she fails to do so, that will be corrected in the Court of Criminal Appeal. I do not think, therefore, that the giving

of some kind of special appropriate directions is in any sense an added requirement in a delayed trial or a trial which has been

preceded by alleged unfair publicity. That would be a misinterpretation of the dicta of Finlay C.J. The only issue should be whether

there is a real risk by reason of the complained of circumstances that the accused could not obtain a fair trial. That issue has to be

considered on the assumption that appropriate directions will be given, if possible. Clearly and unequivocally, that right to obtain the

fair trial takes precedence over any right of the public to have the accused prosecuted. I do not consider that this principle can be

watered down because of the seriousness of the offence as such. But that does not mean that the seriousness of the offence may

not be relevant in assessing the risk. This is particularly true of pre-trial publicity cases and I will expand on it later in this judgment

when dealing with that aspect. In the case of a complaint of delay, in most instances the issue will be whether there is real prejudice

to the defence by reason of the loss of a witness etc. It will usually only arise when the trial is taking place a long time after the

alleged crime was committed.

15. The law on when a trial will be prohibited by reason of blameworthy prosecutorial delay has been dealt with exhaustively in a

number of decisions and I do not intend to review them in this judgment. The learned High Court judge correctly relied on the

exposition of the law contained in PM v. DPP [2006] 3 I.R. 172 in the judgment of Kearns J. Although they overlap, the right to an

expeditious trial and the right to a fair trial are stand alone rights. The learned High Court judge neatly sums up the interest protected

by the right to trial with reasonable expedition as being

1. the right to prevent oppressive pre-trial incarceration;

2. the right to minimise anxiety and concern to the accused;

3. the right to limit the possibility that the defence will be impaired.

16. He goes on to point out that only the third of those rights is relevant to this case. Essentially, the appellant had raised two

issues, that is to say, availability of witnesses and the new category of fingerprint evidence. O’Higgins J. carefully analyses the

potential significance of each of five potential and now unavailable witnesses suggested by the appellant. I do not think it necessary

to do a repeat exercise in this judgment because I agree with the analysis done by O’Higgins J. and there is nothing that I can

usefully add. One of the witnesses had been murdered but he had been interviewed by the gardaí and did not provide an alibi for the

appellant. The second of the witnesses had died at a stage when the case had been with the Director of Public Prosecutions office

for less than a month. The whereabouts of a third witness is completely unknown and it is thought that he has left the jurisdiction. No

blame can, therefore, be attached to the prosecution. A fourth witness was shot dead two days before the appellant was charged

the second time. This is the witness to which the appellant’s legal advisors are attaching the most significance. But that particular

witness was also interviewed by the gardaí and did not provide an alibi for the appellant. He continually said that he did not remember

anything about the night in question and at one point he said “I don’t know anything about any murder or anything about Brian

Rattigan”. As the trial judge also pointed out, significance must be attached to the fact that there were a large number of witnesses

at the scene of the crime. The blood fingerprint evidence is very strong independent evidence. The learned High Court judge sums up

the position by saying that in all the circumstances of the case, he was not concerned that the unavailability of that murdered

witness to give evidence in circumstances where he would have been available were it not for the prosecutorial delay is something

which is capable of causing a real and unavoidable danger of an unfair trial. Finally, the fifth witness was also questioned by the

gardaí and declined to speak but in particular did not provide an alibi for the appellants. The alleged alibi is that he would have been

present with the appellant at the house party in honour of the appellant’s brother. There were, however, a number of people at the

party a fact to which the judge correctly attached significance. In short, the trial judge, therefore, took the view that the absence of

the five witnesses would not justify prohibiting the trial and I entirely agree.

17. The later fingerprint evidence to which I have already referred was held by the judge not to be a ground for prohibiting the trial

and again I agree with that view. First of all, the alleged delay was not a causal factor in the production of that fingerprint evidence.

It was merely what might be described as a “but for” factor. But even more importantly, as the learned High Court judge pointed out,

the so called problem referred to by the appellant was “frequently dealt with by trial judges”.

18. I mentioned early on in the judgment that another ground for the sought after judicial review was a lack of electronic recording.

This was essentially a two-fold complaint. It related to statements taken from potential witnesses when in custody on the one hand

and interviews with the appellant himself on the other hand. The learned High Court judge rejected the arguments on both points and

I agree. He drew attention to the fact that the witness statements could not, as such, be admitted in evidence. The witnesses

themselves would have to enter the witness box and give the evidence at the trial. In relation to the interviews with the appellant,

the judge pointed out that there was no legal obligation to record and that at the time of the relevant interviews, although video

recording equipment was physically available in either Crumlin or Sundrive Road garda station, it had not been commissioned and was

not capable of being used. The learned judge quite correctly rejected these grounds of judicial review.

19. I now turn to the alleged prejudicial pre-trial publicity which O’Higgins J. had to consider. The evidence of this was contained in an

affidavit of Mr. Robert Eagar, solicitor for the appellant, sworn the 20th March, 2006. Paragraphs 6-11 inclusive of the affidavit are

set out in the judgment. For that reason, I do not propose to reproduce them in this judgment. The complaint related to an issue of

the Sunday World newspaper on the 20th November, 2005. It purported to refer to so-called “war lords” and “feuding gang bosses”

and claimed “to expose the vicious thugs behind tit-for-tat underworld blood bath”. There was a photograph of the appellant who was

alleged by the paper to be the leader of a crime gang involved in a notorious feud which resulted in various murders. The paper then

went on to recite some gory details and inside the newspaper there were five more pages devoted to the topic of gangland crime,

drug-dealing and murder. The paper heavily commented that the appellant was “still in control of his gang’s operation from behind

bars” and it said that he was once described by a judge as “a very dangerous young man”. The paper alleged that he was still in

contact with his “mob” through the use of mobile phones and messages. The paper referred to the murder of Declan Gavin and clearly

alleged that members of the appellant’s gang were involved. The paper went on to allege that when the gang heard the news of

Gavin’s death, they had a party to celebrate. Each gang then got ready for a bloodbath it was alleged.

20. When dealing with this issue, the learned High Court judge returned to the principles contained in D v. DPP cited above and other

cases already referred to. What I have already said regarding the legal position, as I see it, in relation to a right to a fair trial applies

even more strongly to a case of adverse pre-trial publicity. I would still be concerned about much use of the word “balancing”

because there is here a well-established hierarchy of constitutional rights and there is no doubt that the right to a fair trial is the

superior right. On the other hand, bearing in mind the public’s right to secure a prosecution especially in serious crime, a court would

be slow to stop a trial. 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 pre-trial 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 pre-trial 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.

21. Returning to this case, the trial judge has carefully set out the arguments made before him by Mr. Grehan, S.C. for the appellant

and Mr. Collins, S.C. for the Director of Public Prosecutions. Having heard both sides, the learned judge expressed the view that the

appellant had not established grounds for prohibiting the trial on the basis of prejudicial pre-trial publicity. Although he accepted that

the reporting “might be described as colourful or even lurid” and that the newspaper had a wide circulation, he considered that the

lapse of time together with the appropriate direction by the trial judge would be more than ample to ensure that there was no risk of

an unfair trial. He pointed out that the court had been told that it would be at least November, 2006 i.e. twelve months after the

publication of the article before the trial would commence and that after such a length of time, the judge thought it “highly unlikely”

that the potential jurors would remember the article in general still less the details which concerned the appellant. The judge went

further by pointing out that it was, in his view, even less likely that the jurors would remember the details alleged to cause the

specific prejudice and that they would associate the appellant with the killing. He also rejected the argument that the photograph

would be such as to be memorable to potential jurors.

22. Yet another matter which influenced the trial judge was the provisions of section 15(3) of the Juries Act, 1976 which was at the

time a new provision. Carney J. in DPP v. Haugh (No. 1) [2000] 1 I.R. 184 had expressed the view that he could see no reason why a

trial judge explaining this subsection to potential jurors should not invite any of them who felt that they could not give the accused a

fair trial based exclusively on the evidence adduced and the judge’s legal directions to so indicate in order that they could be declared

disqualified. This practical application of the subsection received the approval of Kearns J. in another High Court judgment Redmond v.

DPP [2002] 4 I.R. 133. I also think that Carney J. is correct in suggesting that that particular use of the subsection can be made.

After reciting passages in D v. DPP cited above on matters which I have already dealt with, the learned trial judge finally concluded

that the pre-trial publicity complained of would not give rise to a real risk of an unfair trial given the tools which a trial judge had at

his or her disposal to avoid such unfairness.

23. On the basis of the matters which were before O’Higgins J., I am in agreement with his judgment. In fact I would not be quite as

cautious as he was in disregarding arguments made by Mr. Collins based on remarks made by the appellant which if made were

tantamount to admissions. Because they were denied, the judge took the view that the alleged admissions did not appear to him to

be of assistance in the discharge of his functions. I would agree that that would be so if the admissions were contained in an alleged

signed written statement which was going to be disputed at the trial, but in this instance, particular words used in answer to

questions in an interview by Detective Sergeant O’Hara were open to a natural inference of an admission provided that the evidence

of Detective Sergeant O’Hara was true. I think that the significance to be attached to those kind of inferred admissions is quite

different from the significance to be attached to an alleged formal statement of admission in circumstances where that statement is

going to be challenged. The kind of answers which are set out in the judgment even though not yet proved to have been made could,

I think, reasonably be taken into account. The trial judge himself refers to the judgment of Denham J. in B v. DPP [1997] 3 I.R. 140

and in particular the passage at 202:

“If there has been an admission of guilt by the accused of all or any of the alleged crimes this will be a factor for

consideration. If the admission is contested that is also a matter to be considered by the Court on an application to

prohibit the trial on the ground of delay.”

24. However, irrespective of whether I am correct on this point or not, I am satisfied that the trial judge was correct having regard to

the factors which he did take into account.

25. I must now turn to consider the publicity relied on by the appellant which took place since the judgment. As I have already

indicated, this is contained in affidavits grounding three motions on notice, two of them served and filed before the main hearing of

the appeal and the third after the main hearing but brought to the attention of the court in a special post-appeal sitting.

26. The first of these motions was dated the 15th March, 2007. It was grounded on an affidavit of Robert Eagar, referred to above.

He referred to the fact that on the 8th May, 2006, an application to attach the editor and publishers of the Sunday World for

contempt came on for hearing in the High Court. On the same date, senior counsel for the Sunday World and its editor offered an

undertaking not to publish material calculated to interfere with the trial process in being in which the appellant stood accused of the

murder of Declan Gavin. On that basis, the contempt proceedings were adjourned until after the determination of the judicial review

application, the subject matter of this appeal. The affidavit goes on to recite that in breach of the undertaking, an article was

published by the Sunday World on the 10th December, 2006, entitled “The A & E Hitmen” and subtitled “Armed Gardaí called in to stop

gangland attempt on prisoner’s life” which was in turn accompanied by a photograph of the appellant handcuffed to a prison officer

allegedly identifying him as “Gangsters: Brian Rattigan (main pic).” Mr. Eagar then goes on to depose that in distinctive white print set

against a black background beneath the main article was an item entitled “Toll rising in gangland feud.” He said that that article

referred to “the two drug gangs” and the extreme violence between them even by Dublin standards. The two key players were alleged

to be the murdered victim in this case, Declan Gavin, and Joseph Rattigan, the brother of the appellant. Having gone on to describe

how both gangs dealt in cocaine, there was reference to Gavin being rumoured to be an informer for the gardaí and to his being

stabbed to death in the crime the subject of these proceedings. The article goes on to refer to the fact that the appellant was

charged with the murder, but that before that he was shot in his home but survived having lost a kidney and spleen. There is

reference to the brother Joseph being shot dead just as the appellant was getting out of hospital. The article then alleged that the

appellant was jailed on drugs and firearm offences but still ran his gang from Portlaoise Prison. Further inter-gang murders were

referred to and one of those murdered was called “Brian Rattigan’s chief enforcer”. Gruesome details were given as to some of these

murders. The affidavit explains that following on this the appellant successfully applied to the High Court for an interlocutory

injunction restraining the Sunday World and its editor from publishing any material concerning the appellant and/or any material

concerning the murder of Declan Gavin pending the trial or alternatively, pending the determination of contempt proceedings which

had been brought. It was strongly alleged that an undertaking which had been given in those contempt proceedings had been

flagrantly breached.

27. I will postpone commenting further on the contents of this affidavit until after I have outlined the content of the two other

motions. The second motion was dated the 2nd August, 2007 and was likewise grounded on an affidavit of Robert Eagar. This motion

referred to allegedly objectionable pre-trial articles in the Sunday Tribune and the Daily Mail respectively. On the 25th July, 2007, the

High Court had granted the appellant leave to bring an application to attach the editors and publishers of those newspapers for

contempt based on the publication of material allegedly prejudicial to a trial of the appellant in that they connected him with the

killing of Declan Gavin and associated him with alleged gangland murders and other criminal activities and personalities and went on to

state that he was currently serving a prison sentence for possession of drugs and shooting at gardaí. Mr. Eagar had alerted the office

of the Director of Public Prosecutions with a view to the Director himself bringing contempt proceedings. He was merely informed that

the Director’s office was considering what view to take. The appellant proceeded with his application to the High Court. On the return

date, the solicitors acting for both of the newspapers gave verbal undertakings to the court in accordance with undertakings they

had already given in correspondence. By a letter of the 29th June, 2007, the solicitors for the Tribune newspaper plc., proprietors of

the Sunday Tribune stated that the article complained of appeared to have been the result of “a very serious error by our client in

understanding the position of your client”. The letter went on to contain an unreserved apology and an undertaking that there would

be no repetition of any of the material in the articles complained of until the criminal proceedings had been determined. A much more

limited undertaking was given by the solicitors for Associated Newspapers Limited, proprietors of the Daily Mail on the 30th July, 2007.

They did undertake not to publish any material relating to the appellant’s involvement in the killing of Mr. Gavin or on the background

to his death prior to the conclusion of the contempt of court proceedings.

28. The Sunday Tribune article was published on the 24th June, 2007. The affidavit explains that it nominated the appellant as leader

of a crime gang and stated that he had “been identified as the killer” of Declan Gavin. Full details are set out in the affidavit with the

articles exhibited. In paragraph 11 of the affidavit, Mr. Eagar puts forward six aspects of the article in particular which he says was

calculated or tended to influence or prejudice jurors. These were:

(a) The allegation that the applicant is the leader of a crime gang involved in a notorious feud which resulted in the

murders referred to.

(b) The presentation in chronological order of the murders alleged to have arisen from the gangland feud with the murder

of Declan Gavin coming first in time and appearing to have started a string of retaliation murders.

(c) The implication that the appellant was involved in other murders including the murders of Darren Geoghegan and Gavin

Byrne on the 13th November, 2005, Wayne Zambra on the 19th August, 2006 and of Paul Warren on an unspecified date.

(d) The publication of details of the alleged feud which it says resulted in the applicant loosing a kidney and his spleen as

a result of a gun attack and the murder of his brother Joseph and his friends, some of whom might have been called as

witnesses at the trial of the applicant.

(e) The implication that “his gang” has joined forces with another and is involved in importing drugs and firearms into the

jurisdiction.

(f) The statement that the appellant is currently serving a sentence for possession of drugs, which would normally not be

admissible in evidence at the appellant’s trial for murder.

29. The affidavit goes on to particularise the publications in the Daily Mail. I do not propose to set these out in the judgment as to do

so would obviously have an adverse effect on the fade factor. It is sufficient to set out the five aspects of the Daily Mail article

which Mr. Eagar claims in the affidavit were calculated or would tend to influence or prejudice jurors. These are:

(a) The allegation that the appellant is the leader of a crime gang involved in a notorious feud which resulted in murders

including the murder, the subject matter of these proceedings.

(b) The allegation that that murder “sparked off” a gangland feud.

(c) The implication that the appellant was involved in other murders.

(d) The publication of details of the alleged feud which resulted in murders of persons who could be potential witnesses at

the trial on behalf of the appellant.

(e) Stating that the appellant is currently serving a sentence.

30. Again, before making any further comment, I will outline the contents of the affidavit grounding the third motion. This is the

motion which was brought after the main hearing of the appeal. The notice of motion which is before me at least is dated “the day of

October, 2007” and was brought for a hearing at 11.15 on the 25th October, 2007. The motion is grounded on an affidavit sworn by

Mr. Eagar on the 24th October, 2007. The affidavit refers first to the contempt proceedings brought against the Daily Mail and the

undertaking given in court by their solicitors in the same terms as was contained in the letter of the 30th July, 2007. The affidavit

goes on to state that notwithstanding the undertaking, an article was published in the Irish Mail on Sunday which is published by the

same publishers as the Irish Daily Mail. I will not, unnecessarily, set out in this judgment the details of what was contained in that

article but it is essentially a reference back to the previous stories in the Daily Mail and the name of the appellant features

prominently. In this instance, Mr. Eagar sets out five objectionable aspects.

(a) An allegation that the appellant is the leader of a crime gang involved in a notorious feud which resulted in certain

specified murders including the murder, the subject matter of these proceedings.

(b) Specific reference to that particular murder in the context of the gangland feud.

(c) The references to other specified murders which had appeared in the previous articles with a reference to one of the

victims being allegedly a key member of an alleged gang headed by the appellant.

(d) The publication of a purported motive for the murder, the subject matter of these proceedings.

(e) The nomination of the appellant as a “feared criminal”.

31. Mr. Eagar, having written to the Director of Public Prosecutions in closing the article and requesting the Director to consider

prosecuting the Irish Mail on Sunday for contempt of court received merely a bland acknowledgment of his letter from the Director

and again no decision by the Director to bring such proceedings. I will have some comments to make on this aspect of the matter

before I end this judgment.

32. However, Mr. Eagar also wrote to the editor of the Irish Mail on Sunday on the 9th October, 2007, warning him of the intention of

the appellant to bring contempt of court proceedings. A reply was then received from William Fry, solicitors for Associated

Newspapers stating that their client did not accept that their report had undermined the appellant’s “right to be presumed innocent in

connection with the charges he faces in connection with the murder of Declan Gavin”. The letter further stated that the appellant

was “currently in prison on serious charges which have been the subject of significant publicity” and that his trial, “should it take

place, is sometime away.” The letter then went on to state that the report “did not, on any reasonable reading, directly link (the

appellant) to Mr. Gavins’s killing.” The letter went on to state that notwithstanding the view of the clients that the report was “wholly

legitimate”, the clients were prepared to agree not to repeat the references to (the appellant) unless and until the murder charges

are disposed of. Given the heavily qualified nature of the undertaking, the appellant proceeded with the contempt motion and on the

22nd October, 2007, the High Court granted leave to bring a motion seeking to attach the editor and publishers of the Irish Mail on

Sunday for contempt which motion was returnable for Friday, 26th October, 2007. At the time of writing, I have no information as to

the current status of that motion.

33. I have now to consider whether the contents of the affidavits contained in these three post-judgment motions should make any

difference to the view taken by O’Higgins J. and already approved of by me in so far as it was based on the evidence before him that

the injunction sought against the Director of Public Prosecutions ought not in all the circumstances be granted. Before I express an

opinion on this question, I find that I face two dilemmas but have come to the conclusion that I must face them head on and arrive at

a firm conclusion as to how I deal with them.

34. The first is that contempt of court proceedings are pending in the High Court in relation to some of the matters complained of

concerning pre-trial publicity. In my view, nothing that is said in this or any other judgment on this appeal should affect those

proceedings one way or the other. But although that is so, it does not mean that I should refrain from expressing adverse views in

relation to some of the publicity in so far as it would appear to me to be necessary to do so in the context of the matters which I

have to decide. In any contempt proceedings however arising out of the same matters, the High Court judge dealing with such

proceedings should, in my view, consider all aspects of the matter de novo. At any rate, the element of overlap is somewhat illusory.

The difference between proceedings to stop a trial on the grounds of potential unfairness on the one hand and contempt of court

proceedings arising out of the same publication on the other hand have been particularly well explained in judgments of the High Court

of Australia in a case referred to in passing by the learned trial judge namely, R. v. Glennon (1992) 173 CLR 592. In the joint judgment

of Mason C.J. and Toohey J. which effectively, expressed the majority view, the following passage appears.

“Contempt of court arising from pre-trial publication, on the one hand, and appeals from conviction or from a refusal to

order a stay based on pre-trial publication, on the other, differ in at least one important respect. A finding of contempt in

such a situation depends upon proof that the publication has, as a matter of practical reality, a real (or clear) and definite

tendency to interfere with the administration of justice, that is, to prejudice a fair trial. That was the test applied by a

majority of the court in Hinch (1987) 164 CLR at pp 34, 37, 70; but cf. pp 23-25. The question whether a contempt has

been committed has ‘to be determined at the time of publication and not by reference to subsequent events’ as Toohey J.

observed in (there is then listed a number of Australian cases which I do not find it necessary to set out in this

judgment). That time may be well in advance of the actual trial and even before the date for trial is known. Thus a

conviction for contempt depends upon findings of fact and inferences drawn at that time on the basis of evidence then

available.”

35. This distinction seems to me to be equally applicable in Irish law. It follows that a newspaper may be guilty of a flagrant contempt

of court on the basis of potentially prejudicing a fair trial and yet it may be inappropriate at the end of the day to stop the trial for

any one of a number of reasons but especially if a considerable lapse of time has ensued in the meantime. The law is quite simple and

newspapers and other organs of the media should not have all that much difficulty in ensuring compliance with it. If a person has

been charged with a crime, that has an immediate effect on the manner in which the crime can be reported. It must not be reported

or discussed in a way in which it could potentially prejudice jurors in a trial. While the fade factor may be relevant and indeed is

relevant in considering whether a trial should be injuncted altogether, it is not a relevant matter which a newspaper or other organ of

the media is entitled to take into account in its reporting of the crime. It simply must adopt the long established rules of protection of

the person charged with the crime to which I have referred. These rules are quite different from those applicable in say the United

States of America.

36. The second dilemma with which I am faced is that consideration of a so-called fade factor for the purposes of determining

whether the trial should be stopped, in theory at least could be affected by the reporting of a judgment or judgments in this appeal.

While I have done my best to avoid going into too much lurid detail of the contents of the complained of newspaper articles, it is

wholly unavoidable that I have had to refer to them to some extent. I am inclined to think that there can be only one answer to this

problem. If an accused launches judicial review proceedings to have his trial stopped on the grounds of adverse pre-trial publicity, he

must assume the risk of any additional prejudice arising from the reporting of his own judicial review proceedings. That would seem to

be the only way in which justice can be administered in an orderly fashion.

37. In arriving at my final conclusion on the proceedings based on the additional evidence, I am of opinion that I must consider as of

this date the dangers of an unfair trial and indeed accept that some further time will elapse before a trial will commence. It would

seem to me that as a matter of probability, some potential jurors will not have ever taken in the name of the appellant in the first

instance but there is, of course, a danger that when the facts of the case are opened, they may make the association even if they

did not remember the name. There are some who will neither remember the name nor make the association. The newspaper accounts

exhibited had been so vivid that there must be a possibility at least that some association will be remembered by one or more jurors

and, of course, there is the further possibility, if not likelihood, that one juror in the know may inform his or her colleagues. I am

unimpressed by arguments that in some of the accounts, the appellant is merely viewed as a gang leader or in some way connected

with the crime but not the perpetrator of the crime. Nevertheless, in a very serious murder trial such as this which is likely to last for

quite some time in which therefore the jurors will have become fully attuned to the seriousness of their own position and the

seriousness of the functions which they have to perform and above all the long period which will have elapsed from the time of the

publication of the articles even the later ones, I do not consider that it would be either appropriate or necessary for this court to

grant the injunction sought.

38. There are some further aspects of the case which I should mention. I do not think it is seriously in dispute that whoever

committed this crime, it was in a general way a gang warfare crime. Even if there is no identification in the media of a particular

person charged as having committed the crime, the general events which will have surrounded the crime are bound to attract

publicity and it is impossible to avoid some risk that a juror may remember reading about those events but that would not necessarily

be tantamount to prejudicial publicity against the particular accused.

39. I think that I should also add that in any case where there is independent forensic evidence implicating an accused a court in

considering whether there is a risk of an unfair trial and whether it should prohibit the trial is entitled to take that factor into account.

In this particular case, the prosecution are putting forward what purports to be strong independent evidence in the form of a blood

fingerprint.

40. Finally, I would like to make this comment. The prohibiting of a trial by a court cannot be adopted simply to punish the media. The

contempt of court laws are more than adequate for that purpose and are the appropriate vehicle to use for that purpose. I find it

surprising that the Director of Public Prosecutions who clearly has an interest by virtue of his office in the fair administration of justice

in a criminal trial had not at least up to the time of the hearing of the appeal embarked on any contempt of court proceedings but left

the accused to do so himself. The Director of Public Prosecutions, of course, would not be bound to bring such proceedings simply at

the behest of an accused but there is nothing in the papers before me to indicate that he had formed any particular view or had even

adequately considered the matter. In making this comment, I am relying on the affidavits of Mr. Eagar in the various motions. It would

seem appropriate for the Director of Public Prosecutions to adopt a more pro-active role in the area of contempt of court proceedings

where adverse pre-trial publicity is concerned. However for the reasons indicated, I would dismiss the appeal.