THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ



CONSULTATION PAPER

ON

CONTEMPT OF COURT



July 1991

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2



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© Copyright The Law Reform Commission 1991

First Published July 1991



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CONTENTS

PAGES

CHAPTER 1: INTRODUCTION

1– 2

CHAPTER 2: CONTEMPT IN THE FACE OF THE COURT

3–35

Introduction

3

Types of Contempt in the Face of the Court

4

(1) Assaults and Insults

4

(2) Interruption of Court Proceedings

6

(3) Tape Recorders

8

(4) Photographs, Television and Video recordings

9

(5) Non-attendance at Court

10

Mens rea

11

Contempt by Particular Persons

11

(a) Lawyers

11

(b) Witnesses

14

(c) Parties

22

(d) Jurors

23

Jurisdiction

24

Opportunity for Defence

26

Unsatisfactory Answering in Bankruptcy Proceedings

32

CHAPTER 3: SCANDALISING

36–70

Introduction

36

Offence not Obsolete

37

Risk of Prejudice to Pending Proceedings not Essential

39

The Actus Reus

40

(1) Who can be scandalised?

40

(a) Courts

40

(b) Judges' conduct in their official capacity

42


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PAGES

(2) The risk of prejudice to the administration of justice

43

(3) Mode of publication

44

Types of Scandalising

45

(i) Scurrilous Abuse

46

(ii) Imputation of Corruption, Bias or Impropriety

50

The Proper Limits of Criticism

57

(i) The notion of legitimate criticism

57

(ii) The mens rea element

60

(iii) Justification

63

(iv) Public benefit

66

(v) Fair comment

69

CHAPTER 4: THE SUB JUDICE RULE

71–116

Introduction

71

The Prejudgment Test

73

CRIMINAL PROCEEDINGS

74

(a) Encouraging partiality

74

(b) Accused's criminal record or bad character

74

(c) Prejudicing jury in favour of accused

76

(d) Deterring witnesses from coming forward

81

(e) Premature publication of evidence

81

(f) Publication of pre-trial interviews

85

(g) Publication of photographs

85

(h) Temporal Limitations on the Scope of the Sub Judice Rule

86

(1) When does the rule first apply?

86

(2) The position between conviction and sentence

87

(3) The position after a jury disagreement

87

(4) The position pending appeal against conviction or sentence

93

(i) Defences

100

(1) Public Interest

100

(2) Discussion of Public Affairs

101


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CONTENTS

PAGES

CIVIL PROCEEDINGS

100

(a) Introduction

101

(b) Disparaging one or more of the parties

104

(c) Prejudicing merits of the action

108

(d) Publication of information as to trial strategy

109

(e) Proximity of publication to time of trial of action

109

(f) Gagging writs

110

(g) Cases where there is no jury

115

(h) Pressures on witnesses and others

115

(i) Publications pending appeal

116

CHAPTER 5: ACTS, OTHER THAN PUBLICATION, WHICH INTERFERE WITH THE COURSE OF JUSTICE

117–147

1. Categories of Persons Interference with Whom Constitutes Contempt

117

(A) Witnesses

117

(1) Types of interference

117

(2) Mens rea

118

(3) Punishment of witnesses

119

(a) Mixed motives

119

(b) Publicity of punishment

120

(c) Compensation for punishment

121

(B) Jurors

126

(C) Judges

127

(D) Officers of the Court

128

(E) Parties to an Action

130

(F) Wards of Court

132

(1) Marrying a ward

132

(2) Wrongfully removing a ward from the jurisdiction

133

2. General Principles

134

The Scope of the Actus Reus

134

3. Abuse of the Court's Process

138

4. Other Examples

138


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CONTENTS

PAGES

CHAPTER 6: CIVIL CONTEMPT

148–180

Disobedience of Court Orders

148

(A) Disobedience of Orders requiring certain acts to be done

148

(B) Disobedience of Orders prohibiting certain conduct

150

(C) Scope of Order, Notice, Proof of Breach and Related Matters

151

(i) Strict compliance necessary

151

(ii) No distinction between interlocutory and final injunctions

151

(iii) Terms of injunction must be clear and unambiguous

152

(iv) Proper notice to defendant essential

152

(v) Proof of breach

153

(vi) What conduct amounts to a breach?

153

(D) Mens Rea

156

(i) In general

156

(ii) Of companies

157

(E) Apology

158

(F) Third parties

159

(G) Courts' discretion as to whether or not to order committal or attachment

161

(H) The Breach of an undertaking

162

(I) Execution: General Principles

162

(i) Sequestration

163

(ii) Attachment and committal

166

(iii) Disobeying order to pay money into court

168

(iv) Disobeying a judgment or order for possession of land or delivery of goods within specified time

169

(v) Disobedience of orders for interrogatories, or for discovery, or inspection of documents

170


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CONTENTS

PAGES

(vi) Disobeying orders of habeas corpus or related orders

171

(vii) Enforcement of the payment of a sum of money

171

The Distinction between Civil and Criminal Contempt

175

CHAPTER 7: JURISDICTION

181–189

CHAPTER 8: THE RESPECTIVE ROLES OF JUDGE AND JURY

190–209

Precursors to Walsh

190

The Walsh Decision

200

CHAPTER 9: CONTEMPT IN RELATION TO TRIBUNALS

210–224

CHAPTER 10: REFORM PROPOSALS IN RELATION TO CONTEMPT IN THE FACE OF THE COURT

225–255

Defence of the Status Quo

225

(1) The adequacy of the present operation of the law

222

(2) The need for flexibility of definition

226

(3) The inherent jurisdiction of Superior Courts

227

The Case for Abolition

229

(1) Lack of clarity

229

(2) Confusion of goals

230

(3) Breach of basic principles of consitutional and natural justice

232

(4) Adequacy of other legal responses

233

Our Tentative Conclusion

234


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CONTENTS

PAGES

Possible Modifications if In Facie Contempt is Retained

236

(1) Excluding conduct which may be dealt with by other criminal proceedings

237

(2) Excluding insulting, non-disruptive conduct from the scope of in facie contempt

237

(3) Abolishing or modifying the summary procedure

238

(a) The Necessity Rationale

238

(b) The Overtness Rationale

240

Our Tentative Conclusions

242

(4) Limiting the physical scope of in facie contempt

242

(a) A geographical limit?

242

(b) A requirement that the judge or judges have actually witnessed the conduct in question?

244

(5) Making absence from court no longer constitute an in facie contempt

244

Journalistic Privilege

245

Sound Recorders

247

The case in Favour of a Wide-Ranging Entitlement to Make Sound Recordings

247

(1) Open justice

247

(2) The role of the media

248

The case Against a Wide-Ranging Entitlement to Make Sound Recordings

249

(1) Dangers relating to coaching of witnesses

249

(2) Disturbing witnesses

250

(3) The risk of distraction to court proceedings

250

(4) Privacy considerations

250

Eligibility to make a Sound Recording

251

(i) Persons having no connection with the proceedings

251

(ii) The media

252

(iii) Researchers

252


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CONTENTS

PAGES

(iv) Authors

253

(v) The parties and their legal representatives

253

Our Tentative Conclusions

254

Television and video recordings

254

CHAPTER 11: REFORM PROPOSALS IN RELATION TO SCANDALISING

256–286

The Case in Favour of the Status Quo

256

(1) Protecting the administration of justice and the rule of law

256

(2) Preserving public confidence in the administration of justice

257

(3) Deterring future attacks by early preventive action

259

The Case against Contempt Proceedings for Scandalising

259

(1) Scandalising and Freedom of Speech

260

(a) The position under the Constitution

260

(b) The position under the European Convention

261

(2) Imprecision of Definition

264

(3) The Mens Rea Restrictions

266

(4) Discriminatory Application

270

(5) Civil and Criminal Alternatives to Scandalising

270

Our Tentative Conclusions as to Retention or Abolition of Scandalising

274

How the Law Should be Changed

274

(1) Introduction

274

(2) Comparative Aspects

274

(3) Policy Analysis

278

(a) Types of Conduct which should Constitute Scandalising

278

(i) Imputing corrupt conduct to a judge or court

278


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CONTENTS

PAGES

(ii) False or misleading accounts of legal proceedings

278

(iii) Scurrilous abuse

279

(b) The Necessary Degree of Danger to the Administration of Justice

279

(c) The Requisite Mens Rea

280

(d) The Necessary Mode of Communication

281

(e) Truth and the Public Interest as Defences

281

(f) Liability of Editors, Media Proprietors and Others

286

CHAPTER 12: REFORM PROPOSALS IN RELATION TO THE SUB JUDICE RULE

287–350

Arguments Against the Retention of the Sub Judice Rule

288

(1) The Constitutional Argument

288

(2) The Scientific Argument

292

(3) Alternative Remedies

295

(a) Change of venue

295

(b) Postponement and adjournment

295

(c) Voir Dire

296

(d) Discharge

298

Our Tentative Conclusion

303

The Extent of Publication

304

Prejudice

305

Our Tentative Conclusions

309

Risk to the Administration of Justice in general rather than in respect of a Specific Case

310

Our Tentative Conclusion

313

Temporal Limits

313

(1) Should there by any temporal limits?

314

(2) Should the test be that of the imminence of proceedings?

314

(3) Should the test be based on currency of proceedings?

317

Active Proceedings

317

Our Tentative Conclusions

320


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CONTENTS

PAGES

Mens Rea

321

(1) A test based on intention or recklessness

322

(2) A strict liability test

324

(3) A negligence-based test

325

Our Tentative Conclusions

329

Distributors

329

The Public Interest

330

Our Tentative Conclusions

335

Immunity for Reporting Parliamentary Proceedings?

335

Persons Legally Responsible for Publication

336

(1) Imposing liability on the company alone

336

(2) Making the editor liable in all cases

337

(3) Making the reporter liable

338

Our Tentative Conclusions

338

Authorship

339

Control

339

Proprietorship

339

Payments to Witnesses

340

(i) Leaving the present law of contempt unchanged

341

(ii) Clarifying, and perhaps strengthening the present law of contempt

341

(iii) Creating a new offence, in replacement of, or as an adjunct to, the law of contempt

342

Our Tentative Conclusion

342

Publicity of Judicial Proceedings

343

(1) Complete removal of the present restrictions

343

(a) Constitutional necessity

343

(b) Public information and public disquiet

344

(c) Stimulating further evidence

345

(2) A discretionary power to restrict publication of particular matters

346

(3) Restriction by legislation of publication of specific categories of evidence

346

(4) Leaving the present restrictions unchanged

347

Our Tentative Conclusion

347


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CONTENTS

PAGES

Suppression and Postponement of Reporting

347

Our Tentative Conclusions

350

CHAPTER 13: OTHER ACTS INTERFERING WITH THE ADMINISTRATION OF JUSTICE

351–374

Has contempt any useful role in this area?

351

Changes in Existing Law

356

(1) What level of interference with the administration of justice should be required?

357

(2) Should the contempt jurisdiction exclude cases of interference after legal proceedings have terminated?

357

(3) Should the contempt jurisdiction exclude cases of interference before legal proceedings have begun?

357

(4) The requisite mental component

359

(5) Reprisals against parties

360

(6) Monetary compensation

361

Pressures on Parties in Industrial Relations Context

363

Jury Secrecy

364

The case in favour of jury secrecy

364

(1) Jurors' need for security and privacy

364

(2) The desirability of finality

365

(3) Preserving public confidence in the jury system

365

(4) Preserving the jury's “dispensing power”

366

The case against jury secrecy

368

(1) Rectification of miscarriages of justice

368

(2) Lack of detrimental effect from disclosure

369

(3) Restricting valuable research on the operation of the jury

369

Our Tentative Conclusions

369

(1) No absolute rule of secrecy

370

(i) Offences committed in the jury-room

370


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PAGES

(ii) Miscarriages of justice

370

(iii) Jury research

371

(2) Protection of jury secrecy by means other than contempt proceedings

371

(3) Degrees of secrecy in specific contexts

372

(4) Disclosure and publication

373

(5) Temporal limits on disclosure

373

CHAPTER 14: REFORM PROPOSALS IN RELATION TO CIVIL CONTEMPT

375–412

Rationales for Civil Contempt

375

(1) Coercion

375

(2) Punishment

378

Sanctions for civil contempt

380

A. Imprisonment

380

(1) Abolition

380

(2) Should Imprisonment Continue to be Open-Ended?

381

(a) How best to achieve the coercive goal?

382

(b) How can the court's standing be best protected?

382

(c) Justice for the contemnor

384

Our Tentative Conclusions

385

B. Fines

387

Mens rea

388

Defence of reasonable excuse

389

Waiver and discontinuance

389

The case for abolition

390

The case in favour of the status quo

390

Our Tentative Conclusions

392

Contempt in Relation to Family Litigation

392

Should Contempt Proceedings in Family Litigation be Abolished?

394

The Australian Compromise Proposal

396

Enforcement of Maintenance Obligations

399


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CONTENTS

PAGES

The Case in Favour of Retaining Power to Imprison Deliberate Maintenance Defaulters

400

(1) The specially damaging effect of maintenance default

400

(2) The moral responsibility of marriage and parenthood

400

(3) Efficacy of imprisonment

400

(4) The social interest

403

The case against imprisonment

403

(1) Cost to the State

403

(2) Counter-productive solution

403

(3) Availability of other more effective remedies

403

(4) Casting the net too widely

405

(5) The psychological dimension

405

(6) Incentive to flee the jurisdiction

406

Our Tentative Conclusions

408

“Trading-off” Rights Against Contempt

408

Our Tentative Conclusion

411

The Civil Law/Criminal Law Overlap

411

CHAPTER 15: PROPOSALS IN RELATION TO JURISDICTION

413–416

(1) Conferring a full contempt jurisdiction on the Circuit Court and District Court

413

(2) Letting the High Court exercise a superintendence over the Circuit Court and District Court

414

(3) Restricting criminal contempt proceedings to indictments with a jury, save for minor offences

414

Our Tentative Conclusions

415

Civil Contempt

415

Appeals

416


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CONTENTS

PAGES

CHAPTER 16: REFORM PROPOSALS IN RELATION TO THE RESPECTIVE ROLES OF JUDGE AND JURY

417–419

Our Tentative Conclusions

419

CHAPTER 17: REFORM PROPOSALS IN RESPECT OF CONTEMPT IN RELATION TO TRIBUNALS

420–431

1. Should “Deemed Contempt” Provisions be Retained?

421

2. Scandalising

423

3. In facie contempt

424

4. A sub judice parallel?

427

5. Interferences (other than by publication) with the administration or effectiveness of a tribunal

430

CHAPTER 18: SUMMARY OF RECOMMENDATIONS

432–441

BIBLIOGRAPHY

442–443

LIST OF COMMISSION'S PUBLICATIONS

444–447


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CHAPTER 1: INTRODUCTION

In January 1989, the Attorney General referred to us the law of contempt of court for our examination with a view to making recommendations for reform. The subject is one of considerable complexity, which traces its origins back several centuries1; it is also of major contemporary significance, since it sets limits for the freedom of comment on the administration of justice, as well as controlling the information and commentary that may be made about current legal proceedings.

Contempt of court may be criminal or civil. Criminal contempt includes such matters as contempt in the face of the court (in facie curiae), scandalising, breaches of the sub judice rule and other interferences with the administration of justice, such as threatening a witness. Civil contempt consists of defiance of a court order, whether by positive conduct or by the neglect or refusal to obey an injunction. The Supreme Court has also recognised2 the constitutionally inspired notion of “contempt of the Courts”, which as yet awaits judicial development.

At the outset of our consideration of the subject, it is interesting to note that civil law systems have no concept of contempt of court akin to that prevailing in common law systems. Of course, certain modes of misconduct which are here punished as criminal contempt of court also amount to transgressions of the criminal law in civil law systems, but it remains true that “a broad-ranging principle to the effect that any significant interference with the administration of justice is punishable under a broad doctrine such as contempt is not to be found in the civil law”.3 In recent years the growth in civil law systems of civil fines, payable to the plaintiff or the State, reflects similar developments in


1

See Fox, passim, Borrie & Lowe, ch 1, Miller, ch1.

2

Cf The State (Quinn) v Ryan [1965] IR 70 (Sup Ct). See Kelly, 252–253.

3

Law Reform Commission of Australia's Report on Contempt of Court, para 22 (1987).



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common law jurisdictions under the rubric of contempt.4

The law on contempt of court has been the subject of examination in several jurisdictions over the past couple of decades. In our examination and analysis of the issues we have greatly benefitted from these studies: our debt to their authors will be obvious from our repeated reference to their works and discussion of their proposals.

In this Consultation Paper, we examine the present law on contempt of court and make tentative recommendations for its reform. Chapters 1 to 9 inclusive set out the present law in detail and Chapters 10 to 16 inclusive set out our provisional proposals for reform. A summary of the recommendations will be found in Chapter 18.

We emphasise that the Paper does not embody the Commission's final proposals to the Attorney General for reform of the existing law. The object of the Paper is rather to stimulate reaction among interested sections of the public to the Commission's initial and tentative conclusions. When these reactions have been carefully assessed by the Commission, they will be in a position to present their final Report and proposals to the Attorney General. So that the Commission's final Report may be available as soon as possible, those who wish to do so are requested to make their submissions in writing to the Commission not later than the 4th September, 1991.


4

Id. Cf NUM v Larkins, unreported, High Ct, Barrington, J, 18 June 1985.



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CHAPTER 2: CONTEMPT IN THE FACE OF THE COURT

Introduction

In Re Rea (No. 2),1 May, CJ said:

“It is plain that no tribunal could be maintained with order and decency unless the presiding Judge had the power of dealing with the suppressing of contempts committed in open Court. It is for the sake of the administration of justice, and in order to maintain the decency and order of judicial proceedings, that this extensive and summary power is confided to a Judge.”

Echoing these remarks, in Morris v The Crown Office,2 Lord Denning, MR said:

“The phrase 'contempt in the face of the court' has a quaint old-fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is here in these courts. The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power – a power instantly to imprison a person without trial – but it is a necessary power.”


1

4 LR (Ir) 345, at 347 (QB Div, May, CJ, O'Brien and Fitzgeralf JJ, 1879). See also French v French, 1 Hogan 138, at 139 (per McMahon, MR, 1824):

“.... [A] tribunal administering laws, without authority to protect its proceedings from outrage or disturbance, presents to the mind the idea of an institution, which must be impotent, dependent and frequently useless.”

2

[1970] 1 All ER 1079, at 1081 (CA).



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The courts have stressed that the summary power of punishing for contempt in facie curiae should be used “sparingly and only in serious cases”.3 But this does not mean that the seriousness of the offending act should be judged by reference exclusively to the extent to which it disrupts the business of the court. An act in court which causes little or no disruption but which tends to interfere with the administration of justice in general may be penalised as in facie contempt.4

Types of Contempt in the Face of the Court

Contempt in facie curiae consists of conduct so direct and immediate as to be deemed to be “in the personal knowledge of the court”.5 The courts have dealt with a wide range of conduct amounting to contempt of this nature. Several different types of case may be considered in turn.

(1) Assaults and Insults

To assault a judge or other judicial officer while carrying out his or her official functions in court “is an obvious and serious contempt in the face of the court”.6 The courts have for centuries taken this view,7 and even today penalties for such misconduct can be severe.8

Moreover, to assault or threaten any other person in court during court proceedings9 or, it seems, when going to or from the proceedings,10 is also a


3

Parashuram Detaram Shamsdani v King-Emperor, [1945] AC 264, at 270 (PC).

4

See Ex parte Tuckerman; Re Nash, [1970] 3 NSWR 23, at 27:

“The expression 'interfere with the course of justice' is not confined to a physical disturbance of particular proceedings in a court which prevents the court from attending to its business according to law; it comprehends as well an interference with the authority of the courts in the sense that there may be a detraction from the influence of judicial decisions and an impairment of confidence and respect in the courts and their judgments.”

See further Chesterman, Improper Behaviour in Court, para 27 (1984).

5

The State (DPP) v Walsh, [1981] IR 412, at 432 (Sup Ct, per Henchy J).

6

Halsbury, op cit, para 6.

7

See the famous decision of Anon, 2 Dyer 1886n, 73 ER 416 (1631).

8

See Miller, 104–105.

9

Mitchell v Smyth, [1894] 2 IR 351 (QB Div, 1893) (threat made against constable instrumental in prosecution by person convicted of trivial offence).



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contempt in the face of the court.11

Thus, where a party in litigation said to a counsel, in the public waiting area out of court, “Don't let me see you in the street”, this was held to constitute contempt.12 Similarly, in the New South Wales case of In re Goldman,13 a disgruntled litigant, descending in a lift from the court with an opposing litigant, was guilty of contempt in saying “You know what's going to happen


10

The matter was considered by Lord Esher, MR, in Re Johnson, 20 QBD 68 (1887), where abuse and threats by a solicitor to an opposing solicitor took place on the way along the passage the from judge's chambers, after an application had been made there. The Master of the Rolls stated (at 74):

“The principle is that those who have duties to discharge in a court of justice are protected by the law, and shielded on their way to the discharge of those duties, while discharging them, and on their return therefrom, in order that such persons may safely have resort to courts of justice.”

He also stated (at 73):

“It may be that I have too much restricted the doctrine on the subject by suggesting that there would be a limit of time or space with regard to the question whether such conduct amounted to a contempt. It may be that there would be no such limit of time and space, provided the acts done or expressions used could be considered an interference with the course of justice. Distance in point of time or space, however, would, I think, at any rate be a matter to be taken into consideration in determining whether there had been an interference with the course of justice. It is not, however, necessary to consider whether there would be any such limitations here. I pass by altogether the question where and in what part of the building the appellant's misconduct took place; it is obvious that it took place immediately after proceedings before a judge in chambers, and in consequence of what had taken place upon those proceedings, and that the appellant intended in what he did to cast contumely and insult on such proceedings.”

In In re Goldman, [1968] 3 NSWR 325, at 328 (Sup Ct, NSW, Ct App), Sugerman, A-P also left open the question whether there should be any limitation “in point of time or place”.

In Registrar, Court of Appeal v Collins, [1982] 1 NSWLR 682, at 708 (CA), Moffitt, P said:

“Once it is accepted that the power may extend to conduct outside the court room, there is no logic or basis in principle in prescribing a boundary within which the conduct must fall, such as within the limits of the precincts of the court, whatever that may mean in a modern complex of courts of different levels or in respect of courts located ... within various highrise buildings. There is no logic in limiting conduct the subject of the power to what is seen or heard by court officials. These factors when they exist may make it more appropriate to exercise the power.

See also Moore v Clerk of Assize, Bristol, [1972] 1 All ER 58, as explained by Lord Denning, MR, in Balogh v St Albans Crown Court, [1975] QB 73, at 84.

11

Halsbury, op cit, para 6, Giscombe, 79 Cr App Rep 79 (1984), Craddock, The Times, 18 March 1875, cited in Oswald, 45 and Miller, 105.

12

Brown v Putman, 6 ALR 307 (Sup Ct, NSW, Ct App, 1975).

13

In re Goldman, [1968] 3 NSWR 325 (Sup Ct NSW, Ct App, 1968).



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to you, you bastard”.

Insulting behaviour in the presence of a court when it is actually sitting amounts to contempt in the face of the court.14

The most frequent example is insulting behaviour directed to the judge or to a judicial officer.15 Thus, for example, to insult the Bench,16 to strip,17 or even to whisper or light a cigarette18 in the public gallery may constitute contempt.

Insults directed to persons other than the trial judge may, moreover, also constitute a contempt in the face of the court.19 These others may include a member or members of the jury, counsel or a solicitor.20

(2) Interruption of Court Proceedings

A person who wilfully interrupts court proceedings, whether by words or other conduct, is guilty of contempt.21

In Morris v The Crown Court22 a group of students from the University of Aberystwyth, by prearrangement, “invaded”23 the High Court in London, where Lawton, J was hearing an important libel case:24

“They strode into the well of the court. They flocked into the public gallery. They shouted slogans. They scattered pamphlets. They sang songs. They broke up the hearing. The judge had to adjourn. They


14

Halsbury, op cit, para 6. See also Miller, 106–110.

15

Halsbury, op cit, para 6.

16

Cf, e.g, Ex parte Tanner, MP, Judgments of the Superior Courts (Ireland), p343 (Exch Div, 1889).

17

Gohoho v Lintas Export Advertising Services, The Times, 21 January 1964, cited by Miller, 108.

18

See Miller, 108, citing unreported decisions.

19

Halsbury, op cit, para 6.

20

Id.

21

Id See also In re Rea, 2 LR Ir 429 (QB Div, 1878). Cf The People (AG) v Jasinski, Frewen 283 (CCA 11 March 1963). The accused, a native of Poland, who had lived and worked in Ireland for the previous fourteen years, and who (per Haugh J for the Court of Criminal Appeal, at 285) “had a good knowledge of English”, created “an uproar” in Court during the address by counsel for the prosecution to the jury, by demanding that it be translated into Polish as it was being delivered. An interpreter had been available for most of the evidence as it was given. The trial judge ordered that accused be removed from Court to the cells, and the proceedings continued in his absence. Haugh J, on the appeal against conviction for two offences, stated that the Court of Criminal Appeal was of opinion that “the trial Judge, who was in control of the entire proceedings, was, by reason of the open contempt persisted in by this applicant, entitled, in the interests of justice, to act as he did”: id.

22

[1970] 1 All ER 1079 (CA).

23

Id, at 1080 (per Lord Denning, MR).

24

Broome v Cassell & Co. (which was later appealed to the House of Lords on the question of exemplary damages).



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were removed. Order was restored.”25

The purpose of this interruption was to demonstrate in support of the preservation of the Welsh language.

Lord Denning, MR observed:

“Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show – and to show to all students everywhere – that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land – and I speak both for England and Wales – they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.”26

And Salmon, LJ said:

“Everyone has the right publicly to protest against anything which displeases him and publicly to proclaim his views, whatever they may be. It does not matter whether there is any reasonable basis for his protest or whether his views are sensible or silly. He can say or write or indeed sing what he likes when he likes and where he likes, providing that in doing so he does not infringe the rights of others.

Every member of the public has an inalienable right that our courts shall be left free to administer justice without obstruction or interference from whatever quarter it may come. Take away that right and freedom of speech together with all the other freedoms would wither and die, for in the long run it is the courts of justice which are the last bastion of individual liberty. The appellants, rightly or wrongly, think that they have a grievance. They are undoubtedly entitled to protest about it, but certainly not in the fashion they have chosen. In an attempt, and a fairly successful attempt, to gain publicity for their cause, they have chosen to disrupt the business of the courts and have scornfully trampled on the rights which everyone has in the due administration of justice; and for this they have been very properly punished, so that it may be made plain to all that such conduct will not be tolerated – even by students. The archaic description of these proceedings as 'contempt of court' is in my view unfortunate and misleading. It suggests that they are designed to buttress the dignity of the judges and to protect them from insult. Nothing could be


25

[1970] 1 All ER, at 1080.

26

Id, at 1083.



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further from the truth. No such protection is needed. The sole purpose of proceedings for contempt is to give our the courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented .... This power to commit for what is inappropriately called 'contempt of court' is sui generis and has from time immemorial reposed in the judge for the protection of the public.”27

(3) Tape Recorders

No statute regulates in express terms the use of tape recorders (or other sound recorders) in court.28 The matter appears to fall within the inherent jurisdiction of the court to regulate its own procedure. The precise rationale for, and consequent scope of, this jurisdiction in general is a matter of uncertainty, which impinges on the specific question of the use of tape recorders.29 On one view, the purpose of the jurisdiction is to prevent any obstruction of, or interference with, the administration of justice.30 As an American commentator stated of the experience in the United States,

“inherent powers may be used only when reasonably necessary for the court to be able to function .... Courts may not exercise inherent powers merely because their use would be convenient or desirable.”31

On another view, the exercise of the court's inherent power should not be confined to cases of strict necessity and is permissible whenever its purpose is to secure or promote convenience and expedition in the administration of


27

Id, at 1086–1087.

28

In the Alberta decision of R v Basker, [1980] 4 WWR 202 the Court of Appeal of that Province held it perfectly proper for a trial judge to have queried counsel about whether he had used a tape recorder without having first obtained the Judge's permission. Morrow JA said (at 209 – 210):

“I would observe from my own experience both as counsel and as judge, an experience which dates back some forty years, that in the province of Alberta the use of private recorders in a courtroom, including the Appeal Court, was never attempted except and only when permission had first been sought and granted. Members of the Alberta Bar have, in my experience, always recognised that it was the prerogative of the presiding judge or judges as to whether apparatus such as recorders were to be permitted or not. It is also my experience that, upon such request being given, the presiding judge usually gives permission. Indeed, while there may be special occasions where consent might not be forthcoming, I would rather expect that permission would be rarely refused. In this respect, therefore, I have no hesitation in stating that the court in the present appeal was quite within its authority to question counsel as to whether, in fact, he was or had been making use of a recorder.”

29

See the Report on the subject published by the New South Wales Law Reform Commission in March 1984, paras 2.28 ff.

30

Cf Jacob, The Inherent Jurisdiction of the Court, 23 Current L Problems 23, at 32, and the New South Wales Report, para 2.31.

31

Baskin, Protective Orders Against the Press and the Inherent Powers of the Courts, 87 Yale L J 342, at 351 (1977).



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justice.32 The difference of approach – or perhaps mere tendency – may be important in relation to the use of recorders in court. Is a judge entitled to prohibit their use in all circumstances or only in particular cases? It is clear that recordings are capable of being put to improper use in certain circumstances: they may, for example, interrupt the flow of proceedings, or intimidate a witness, or they may be re-played to coach a person who has yet to give evidence.

Of course in cases where there is a specific risk of any misuse of this type, a judge would be perfectly free to prohibit the use of a recorder; but it is not entirely beyond argument that a judge may invoke such hypothetical risks, so as to prohibit the use of recordings in all circumstances. One suspects that, if the issue were tested, an appellate court might well uphold the propriety of even an absolute prohibition on the basis that it is never possible to exclude these risks, even if there is no question about the integrity of the would-be user of the recorder, since there may be an unauthorised use of the recording by someone else. Whether such an a priori resolution of the issue would commend itself to the court, however, is impossible to predict.

So far as general principles are concerned, it is relevant, though not conclusive, that the right of persons in Court to take notes has been recognised,33 and it may be argued that this represents a general entitlement to record the evidence. More broadly, on constitutional grounds, it may be contended that open justice would not be fully guaranteed if it is limited to what those who attend court can recall or record by taking notes. The reply to these arguments, no doubt, is that sound recordings are not the same, as notes. A note-taker may be less obtrusive than a sound recorder; sound recorders can, moreover, be used far more effectively to coach witnesses than a mere transcript, however full. Whether this is a fully effective refutation, however, may be debated.

(4) Photographs, Television and Video Recording

As in the case of sound recordings, there are no statutory provisions dealing with the taking of photographs, television or video recordings. The matter appears to be one governed by the inherent jurisdiction of the court on the same general principles as those relating to sound recordings. It is, however, generally accepted that photographs may not be taken in court, nor may the proceedings be televised or video recorded without permission.

The application of these principles may not necessarily result in a uniform


32

Cf O'Toole v Scott, [1965] AC 939, at 959, and see the New South Wales Law Reform Commission's Report, paras 2.31–2.32.

33

Cf Home Office v Harman, [1982] 1 All ER 532, at 537 (HL (Eng), per Lord Diplock), Lambert v Home, [1914] 3 KB 86, at 90, Collier v Hicks, 2 B & Ald 663, 109 ER 1290, at 1292 (per Lord Tenterden CJ, 1831), and the New South Wales Law Reform Commission's Report, paras 2.15–2.16.



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acceptance or rejection of both sound and television or video recordings. A court might well come to the conclusion that, in view of its impact, television or a video recording should never be permitted or permitted in only exceptional circumstances, while sound recording should be widely permitted. Certainly in a case where there is a risk of a recording's being used to coach a future witness, the potential for misuse of a television or a video recording would seem to be greater than with a sound recording. Moreover, the intimidatory effect on witnesses of a television camera is likely to be worse than that of a sound recorder. Further, the degree of interference with court proceedings which television involves would in many (though not all) cases be greater than that of sound recorders.

(5) Non-Attendance at Court

The non-attendance at court of a participant in legal proceedings has been held in some cases34 to be capable of constituting contempt in facie curiae. From one standpoint this can be criticised since the absentee can be considered to have “d[one] nothing in the face of the court”.35 From another standpoint, non-attendance is capable of amounting to an insult to the court: the locus of the injury is the court itself.36

In In re Kelly and Deighan,37 Costello J held that attempting to induce a witness not to attend court constituted in facie contempt. Whether the principle goes so far may be debated, though, of course, conduct of such a kind would be capable of constituting constructive contempt of court. Another possible rationale for characterising it as in facie contempt is that it interrupts the proceedings no less effectively than conduct within the four walls of the courthouse.


34

Principally in the United States: see Anderson, Comment, A Pragmatic Look at Criminal Contempt and the Trial Attorney, 12 Baltimore L Rev 100, at 108–109 (1982), Kilgarlin & Ozmun, Contempt of Court in Texas – What You Shouldn't Say to the Judge, 38 Baylor L Rev 291, at 323 (1986). Also Canada: see McKeown v R, 16 DLR (3d) 390 (Sup Ct Can, 1971). Lord Denning MR's judgment in Weston v Central Criminal Courts' Administrator [1977] QB 32 (CA) lends some support for this approach. The differing approaches in the cases towards characterisation, the degree of punctiliousness required of lawyers and the question of mens rea present little prospect for easy rationalisation: see Borrie & Lowe 32–35, Miller, 112–113. In a Circuit Court case in October 1989, an essential witness, Patrick Noone, was sent to prison for receiving stolen goods. The newspaper report (Evening Press, 7 March 1990) states that when Mr Noone failed to appear, the jury were discharged and the accused set free. Mr Noone claimed that he had been intimidated. The remainder of Mr Noone's sentence was suspended by Judge Buchanan on 7 March 1990.

35

Behn v The President and Members of the Court of Arbitration, 32 WALR 28, at 30 (1929). See also Chesterman, Improper Behaviour in Court, para 26 (1984): “... it would appear that ... absence from the court is logically not contempt in its face ....”

36

One is reminded here of the problem of determining the locus delicti in conflicts cases: see Binchy, (Conflicts) 147–153, Fridman, 24 U Toronto LJ 247 (1974), Webb & North, 14 Int & Comp LQ 1314 (1965), Grehan v Medical Incorporated [1986] IR 528.

37

[1984] ILRM 424 (High Ct, Costello J, 1983).



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Mens Rea

The authorities dealing with the question of mens rea in respect of in facie contempt38 are relatively few in number and unconvincing in their analysis. Most of the decisions deal with mens rea in the context of failure by counsel or a solicitor to attend court.39 While of course the question is of central importance in that context, it is an exceptional one, far from characteristic of in facie contempts in general. It therefore should not be looked on as a certain guide. Modern principles of criminal law suggest that intention or recklessness should be required. However, some other aspects of the law of contempt (such as scandalising and breach of the sub judice rule) do not recognise either of these elements. At all events, where statutory provisions govern the court's jurisdiction in respect of in facie contempt, the mens rea position is usually clarified. Thus section 16(1) of the Petty Sessions (Ireland) 1851 requires that the insult to the Justice be “wilful”.

Contempt by Particular Persons

(a) Lawyers40

Lawyers have to tread warily when representing their clients. They must not be intimidated or browbeaten by the judge and must present their client's case as strongly as justice and fortitude may require. In doing so they must not forget another cardinal virtue – prudence. They must seek to temper their presentation to achieve the goal of advocacy, which is to convince the listener.41 But, more urgently, they must ensure that they do not fall foul of the law of in facie contempt.

The difficulties facing lawyers are encapsulated in the following prudent advice given by an American writer:

“An analysis of the case law reveals several patterns of which the trial attorney should be aware. First, an attorney with a history or reputation for abusing the court's courtesy and patience will have a much more difficult burden in establishing his lack of intent. Second, an attorney may reasonably dispute the trial judge's rulings provided he does not persist to the extent that he creates an obstruction to the


38

See Borrie & Lowe, 53–54, Miller, 133–135.

39

Many of these authorities are reviewed in R v Barker, [1980] 4 WWR 202 (Alta CA), which, it should be noted, was not concerned with such “absentee”.

40

See generally Butt, Contempt of Court and the Legal Profession, [1978] Crim L Rev 463, PJ B[utt], Contempt of Court – Extent of Liability of Members of Legal Profession, 52 Austr L J 151 (1978).

41

In some cases, of course, counsel will have his or her eye on the appeal, knowing that the case before the trial judge is doomed. He or she may wish to make arguments, not because he or she expects to convince the trial judge, but in order to ensure that the appellate court will hear them and not decline to do so on the ground that they should have been made at trial. Cf Hynes-O'Sullivan v O'Driscoll, [1988] IR 436, at 450 (Sup Ct, per Henchy J), Cook v Walsh, [1984] ILRM 208, at 221 (Sup Ct, per McCarthy J).



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court's business. When an attorney believes the judge to be in error and the judge refuses to be swayed by his initial argument, the wiser course is to forego further argument and to take an exception for appeal. Third, the trial attorney should not allow himself to be drawn into a heated controversy with the trial judge. In the event this does occur, the attorney should take care not to make personally derogatory statements to the judge nor statements demeaning the judicial system. Finally, failure to comply with a direct court order will always involve a high risk of contempt.”42

Internationally the courts43 have sought to reassure counsel that they will tolerate some degree of discourtesy and conflict. However, as Borrie & Lowe44 observe, “[t]he dividing line between 'merely offensive conduct'45 and conduct amounting to contempt is not easy to draw” and it is of course the court, and not the counsel, who draws it.

Violent acts by counsel are clearly beyond the pale,46 as are threats of violence47 or provocative language likely to lead to a brawl.48 Acts of defiance of the authority of the court, such as burning a document in disobedience to the order of the court,49 can clearly constitute contempt. Insults by counsel to members of the jury will not easily be tolerated50; however, insults directed at opposing counsel are more indulgently regarded.51

In In re Rea,52 an Irish solicitor fell foul of the contempt law. The warrant of committal recited that he had “insist[ed] upon interrupting and insulting the Court by shouting at the Court in the most violent and unseemly manner, and, although frequently called upon by the Court, continued to do so in such a way that no member of the Court was even able to speak ....”53

In determining whether counsel has gone beyond the permissible range in his


42

Anderson, Comment: A Pragmatic Look at Criminal Contempt and the Trial Attorney, 12 Baltimore L Rev 100, at 117 (1982).

43

Cf, e.g., Parashuram Detaram Shamdasani v King-Emperor, [1945] AC 264, at 270, Izuora v R, [1953] AC 327, at 336.

44

Borrie & Lowe, 27.

45

Parashuram Detaram Shamdasani v King-Emperor, [1945] AC, at 270.

46

Cf Bryans v Faber and Faber, [1979] CA Transcript 316, cited by Borrie & Lowe, 29.

47

Parashuram Detaram Shamdasani v King-Emperor, [1945] AC, at 269.

48

Id.

49

Linwood v Andrews and Moore, 58 LT 612 (1888).

50

Ex p Pater, 5 B & S 299 (1864).

51

Parashuram Detaram Shamdasani v King-Emperor, [1945] AC, at 269.

52

2 LR Ir 429 (QB Div, 1878). Mr Rea was, however, discharged since it was not clear that he had been given an opportunity to show why the order should not be made: id, at 433. Cf In re Rea (No. 2), 4 LR Ir (QB Div, 1878), where Mr Rea was again committed; in a case where three persons had been charged with taking part in a riotous mob, Mr Rea, having intimated that he appeared as solicitor for one of the accused only, “persisted in interfering as between the Court and the other parties charged”: id, at 346. This time his committal (for seven day's imprisonment) was not disturbed.

53

Id, at 430.



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or her exchanges with the Bench, courts have regard, expressly54 or implicitly, to the fact that provocation from the Bench may excuse counsel's conduct or at all events mitigate its seriousness.

False Representation as Lawyer

It is a contempt in facie curiae to pretend to be a barrister. In In the Marriage of Slender (Mr H and DM),55 Watson SJ of the Family Court of Australia so held when sentencing a man to imprisonment for ninety days (on condition that he be released after fourteen days on entering certain specified recognizances) for appearing for a woman with whom he was having a sexual relationship, on the representation to the Court that he was a barrister instructed by a named solicitor.

Watson J said:

“The Family Court of Australia is a superior court of record. Its status and dignity are exemplified not only by the provisions of the Family Law Act but by the table of precedence for the Commonwealth of Australia. Whereas its vitality is seen in its capacity to be a 'helping court',56 neither the nature of its jurisdiction nor its deliberate informality should be seen as a temptation to any person, professional or lay, to treat it as other than what it is –a specialised superior court of record.

“[The contemnor]'s offence is grave. He has impersonated a legal practitioner. Such personation does not have to be in relation to an identified person.57 His relationship with Mrs Slender infringes any objectivity he may possess as an advocate.58 Counsel before this Court will constantly find it much safer to take their instructions in chambers of conference rooms rather than in bed-chambers.”59

This judgement does not resolve the question whether it is contempt to pretend to be a barrister in a court of less elevated status – in which, for example, professional legal representation (or more narrowly, representation by a barrister) is not the norm. It may be argued that the element of conscious deceit at the expense of the court renders this conduct a contempt. It also seems clear that pretending to be a solicitor may constitute contempt, in view of solicitors' relationship to the court and their role in the


54

Cf, e.g., R v Barker, [1980] 4 WWR 202, at 222 (Alta CA, per Morrow, JA).

55

29 FLR 267 (Fam Ct of Austr, Watson, SJ, 1977).

56

Cf the Law Reform Commission of Australia's Report on Contempt of Court, para 623 (1987).

57

Citing R v Allison, 83 WN (Pt 1) (NSW) 220 (1965).

58

The contemnor, after his misrepresentation had been discovered, claimed, inter alia, to be a law graduate from an Australian University. Watson SJ did not reject that claim, though, in another matter, he implicitly cast doubt on what the contemnor had alleged.

59

29 FLR, at 269, certain citations omitted.



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administration of justice.

(b) Witnesses

Halsbury60 states:

“A witness who, without lawful excuse,61 refuses to be sworn or, being sworn, refuses, or who prevaricates, or who remains in court after the witnesses have been ordered out of court, is guilty of contempt in the face of the court and may be fined and imprisoned. In civil proceedings a witness may decline to answer on the ground that he may incriminate himself or on the grounds of privilege. If a witness declines to answer on the former ground, the court must be satisfied that there are reasonable grounds for him to apprehend charges.”

While it is clear that the refusal by a witness to answer a question can constitute in facie contempt,62 it is necessary to show that the question was relevant.63 As O Dalaigh, CJ observed in Keegan v de Burca,64“[i]t is, in my opinion, correct to say that it is no offence to refuse to answer an irrelevant question”.

An example of a witness's refusal to answer a question is Re O'Kelly.65 There Kevin O'Kelly, a journalist employed by Radio Telefis Eireann, was called as a prosecution witness in the trial before the Special Criminal Court of Sean Mac Stiofain for membership of an illegal organisation. Mr O'Kelly gave evidence that he had had an interview with a man and had made a tape-recording of the interview which he had given to another employee without interference. He and the other employee identified this tape-recording in Court. Mr O'Kelly stated in evidence “that he was satisfied the remarks on it by Mr Sean Mac Stiofain were authentic”. But, when asked the direct


60

Halsbury, op cit, para 6 (footnote references omitted).

61

A witness who is not compellable need not give evidence: see the Law Reform Commission's Report on Competence and Compellability of Spouses as Witnesses (LRC 13–1985), The People (DPP) v T, CCA, 27 July 1988, R Byrne & W Binchy, Annual Review of Irish Law 1988, 151–153 (1989), Jackson, Evidence – Competence and Compellability of Spouses as Prosecution Witnesses, 11 DULJ 149 (1989). Nor can a person reported to have made a speech which, if in fact spoken, might be made the subject of an indictment against him, and would also be contempt of court, be required by the Court by whom he is charged with such contempt to state on affidavit what portion of the report he admits to be correct and what portion he believes inaccurate: In re Youghal Election Petition (Barry's Case), IR 3 CL 537 (CP, 1869). But a denial of a report which lacks specificity may result in the Court's inferring the truth of the report: see AG v O'Ryan and Bond, [1946] IR 70 (High Ct, 1945).

62

O'Brennan v Tully, 69 ILTR 115 (1933), Keegan v de Burca, [1973] IR 223 (1973), Re O'Kelly, 108 ILTR 97 (1974). See also the procedure under the Bankruptcy Act 1988, sections 24–25, replacing the Irish Bankrupt and Insolvent Act 1857, discussed in the final section of this chapter.

63

O'Brennan v Tully, supra, Keegan v de Burca, supra.

64

[1973] IR, at 229.

65

108 ILTR 97 (CCA, November 1972 and June, July 1974).



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question who was the man he interviewed, he refused to answer on the grounds that he had a problem of conscience as a journalist. Later in his evidence he said that a question:

“seems to be asking me to say that I was present physically when the statements were made by the man on the tape were in fact made and my position is that to disclose the circumstances under which the statements on the tape were made available to me would be a breach of confidence between me and a client which I feel, were I to breach that confidence, I would be not only putting my own exercise as a journalist into jeopardy, I would make it very difficult adequately for any journalist all over Ireland to promote the public good by fostering the free exchange of public opinion.”

The Court sentenced him to three months imprisonment and refused leave to appeal. Mr O'Kelly applied to the Court of Criminal Appeal, under section 44(1) of the Offences Against the State Act 1939, for leave to appeal against the severity of the sentence. The Court granted this application and admitted Mr O'Kelly on bail pending the determination of his appeal to the Court. The process took nearly two years to complete.

Walsh J delivered the judgment of the Court. The central passage merits quotation in full:

“The Court is aware that in general journalists claim the right to refuse to reveal confidences or disclose sources of confidential information. The Constitution, in Article 40 section 6, states that the State shall endeavour to ensure that the organs of public opinion, such as the radio and the press, while preserving their right of liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State. Subject to these restrictions, a journalist has the right to publish news and that right carries with it, of course, as a corollary the right to gather news. No official or governmental approval or consent is required for the gathering of news or the publishing of news. It is also understandable that newsmen may require informants to gather news. It is also obvious that not every news gathering relationship from the journalist's point of view requires confidentiality. But even where it does journalists or reporters are not any more constitutionally or legally immune than other citizens from disclosing information received in confidence. The fact that a communication was made under terms of expressed confidence or implied confidence does not create a privilege against disclosure. So far as the administration of justice is concerned the public has a right to every man's evidence except for those persons protected by a constitutional or other established and recognised privilege. As was pointed out by the Supreme Court in Murphy v The

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Dublin Corporation and the Minister for Local Government.66 it would be impossible for the judicial power under the Constitution in the proper exercise of its functions to permit any other body or power to decide for it whether or not certain evidence would be disclosed or produced. In the last resort the decision lies with the courts so long as they have seisin of the case. The exercise of the judicial power carries with it the power to compel the attendance of witnesses and the production of evidence and, a fortiori, the answering of questions by witnesses. This is the ultimate safeguard of justice in the State, whether it be in pursuit of the guilty or the vindication of the innocent.

As was pointed out in that case, there may be occasions when different aspects of the public interest may require a resolution of a conflict of interests which may be involved in the disclosure or non-disclosure of evidence but if there be such a conflict then the sole power of resolving it resides in the courts. The judgment or the wishes of the witness shall not prevail. This is the law which governs claims for privilege made by the executive organs of State or by their officials or servants and journalists cannot claim any greater privilege.

The obligation of all citizens, including journalists, to give relevant testimony with respect to criminal conduct does not constitute a harassment of journalists or other newsmen. If a journalist were to be invited to witness the commission of a crime in his capacity as a journalist and received the invitation only because of that capacity, the courts could not for a moment entertain a claim that he should be privileged from giving evidence of what he had witnessed simply because of the fact that he was there as a journalist. In the present state of the criminal law, in such a case a journalist concealing such knowledge, like any other person in a similar position, might well find himself guilty of misprision of felony where a felony was concerned. In the present case Mr O'Kelly was in effect being asked to identify the speaker of words which were claimed to constitute an admission of membership of an illegal organisation and therefore the commission of an offence, namely, the offence of being such a member. Even if the question of confidence arose here, which it clearly did not because ... the identity of the person being interviewed was an essential part of the publication, the claim of privilege to refuse to answer the question was unsustainable in law although made in good faith. However, Mr O'Kelly persisted in his attitude when the Court had very patiently explained the position to him. He was, in the opinion of this Court, rightly convicted of contempt of court and in fact has not appealed against that


66

[1972] IR 215.



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conviction.”67

This analysis clearly recognises that the courts have a free rein in compelling journalists to reveal their sources where it appears that to do so will constitute relevant evidence. The thrust of the passage appears to be that such evidence should normally be forthcoming. Certainly Walsh J gives no indication that the courts should, on any constitutional principle or social or moral norm, defer to journalistic “privilege” in every case where the evidence is not deemed necessary in the interests of justice in the particular circumstances of the case. In the light of this passage it would seem an uphill task for counsel on behalf of a journalist to argue that such restraint is inherent in, or at all events not inconsistent with, the strong preference for hearing such evidence which is discernible in the passage.68

But it should also be noted that Walsh J, does not say in express terms that the court is obliged to require disclosure in a case where the evidence, although relevant, is not necessary in the interests of justice. It may well be that the courts, although declining to recognise the existence of a “journalist privilege” as such, may at their discretion decline to require such disclosure where it cannot be so justified.

It is useful in this context to note the approach in England prior to statutory reform.69 In the English Court of Appeal decision of AG v Mulholland and Foster,70 Lord Denning MR and Donovan LJ differed among themselves as to the circumstances in which disclosure of journalistic sources might be ordered. Lord Denning MR favoured a necessity-based test. He said:

“The journalist puts forward as his justification [for non-disclosure] the pursuit of truth. It is in the public interest, he says, that he should obtain information in confidence and publish it to the world at large, for, by so doing, he brings to the public notice that which they should know. He can expose wrongdoing and neglect of duty which would otherwise go unremedied. He cannot get this information, he says, unless he keeps the source of it secret. The mouths of his informants will be closed to him, if it is known that their identity will be disclosed. So he claims to be entitled to publish all his information without ever being under any obligation, even when directed by the court or a judge,


67

108 ILTR, at 101. The Court quashed the sentence of imprisonment and substituted a fine of £250. It had regard to the fact that Mr O'Kelly, save in regard to the privilege he claimed, had sought to be as helpful as he could; it also bore in mind that his refusal to answer the question in issue, “while perhaps adding some little extra difficulty to the case”, had not effectively impeded the presentation of the prosecution's case.

68

It is useful in this context to consider Walsh J's remarks in Murphy v Dublin Corporation [1972] IR 215, at 233–234 (Sup Ct).

69

Brought about by the Contempt of Court Act 1981, section 10, most recently, and thoroughly, interpreted by the House of Lords in X Ltd v Morgan-Grampion (Publishers) Ltd, [1990] 2 All ER 1.

70

[1963] 1 All ER 767 (CA).



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to disclose whence he got it. It seems to me that the journalists put the matter much too high. The only profession that I know which is given a privilege from disclosing information to a court of law is the legal profession, and then it is not the privilege of the lawyer but of his client. Take the clergyman, the banker or the medical man. None of these is entitled to refuse to answer when directed to by a judge. Let me not be mistaken. The judge will respect the confidences which each member of these honourable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is a proper and, indeed, necessary question in the course of justice to be put and answered. A judge is the person entrusted, on behalf of the community, to weigh these conflicting interests – to weigh on the one hand the respect due to confidence in the profession and on the other hand the ultimate interest of the community in justice being done or, in the case of a tribunal such as this, in a proper investigation being made into these serious allegations. If the judge determines that the journalist must answer, then no privilege will avail him to refuse.”71

Donovan LJ preferred a less closely defined test. He said:

“While the journalist has no privilege entitling him as of right to refuse to disclose the source, so, I think, the interrogator has no absolute right to require such disclosure. In the first place the question has to be relevant to be admissible at all; in the second place it ought to be one the answer to which will serve a useful purpose in relation to the proceedings in hand – I prefer that expression to the term 'necessary'. Both these matters are for the consideration and, if need be, the decision of the judge. And, over and above these two requirements, there may be other considerations, impossible to define in advance, but arising out of the infinite variety of fact and circumstance which a court encounters, which may lead a judge to conclude that more harm than good would result from compelling a disclosure or punishing a refusal to answer.

For these reasons, I think that it would be wrong to hold that a judge is tied hand and foot in such a case as the present and must always order an answer or punish a refusal to give the answer once it is shown that the question is technically admissible. Indeed, I understood the learned Attorney-General to concur in this view, namely, that the judge should always keep an ultimate discretion. This would apply not only in the case of journalists, but in other cases where information is given and received under the seal of confidence, for example, information given by a patient to his doctor and arising out of that relationship. In the present case, where the ultimate matter at stake is the safety of the community, I agree that no such consideration as I have mentioned, calling for the exercise of a discretion in favour of the appellants, arises.


71

Id, at 771.



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....”72

In the later Court of Appeal decision of Senior v Holdsworth,73 which was concerned with the question of the production of a document – here, a cinematic film – Lord Denning MR reiterated his necessity-based test. Orr LJ commented that he could:

“not see why, as respects confidentiality of sources, the camera team should be in any more privileged position than a journalist, though I respectfully agree with the view of Donovan LJ in AG v Mulholland, that in this field there should be some degree of residual discretion in the court of trial or the tribunal.”74

Scarman LJ referred to the American cases of Baker v F&F Investments75 and Democratic National Committee v McCord,76 which had been decided against the background of the First Amendment, a constitutional provision having, “as yet”,77 no parallel in Britain. He went on:

“I do not think that English law has gone beyond the limited discretion recognised in Mulholland's case as available to protect certain professional confidences. The difference in emphasis between the law of the United States with its constitutional background and English law is well illustrated by contrasting the language of the judges. Both legal systems stress the importance of the fair administration of justice, but in Baker's case it was said that a question must be answered if it goes 'to the heart of the party's case', whereas in Mulholland's case Donovan LJ said an answer was required if it would serve a useful purpose in the proceedings. Mulholland's case reveals how far the courts can go – no further, in my judgment, than Donovan LJ's gloss on the words of Lord Denning MR. The general issue of public advantage and private right – i.e. the balancing of the public interest in protecting the right and duty of the press to seek out and declare the truth, against the public interest in maintaining the right of the litigant to the production in court of the evidence, oral and documentary, he believes necessary to his case – is not yet one which the law entrusts to the courts, and I am totally unable to construe the Independent Broadcasting Act 1973 as conferring on the Independent Broadcasting Authority a position of privilege denied so far to the other media of public communication.”78


72

Id, at 772–773. See also AG v Clough [1963] 1 QB 773 (QBD, Lord Parker, CJ). In both Mulholland and Clough, reference was made to Hanna J's decision in O'Brennan v Tully, supra.

73

[1975] 1 All ER 1009, at 1015 (CA).

74

Id, at 1017.

75

470 F 2d 770 (1972).

76

356 F Supp 1394 (1973).

77

[1975] 2 All ER, at 1021.

78

Id, at 1021–1022.



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In British Steel Corporation Granada Television,79 the House of Lords endorsed Lord Denning MR's approach in Mulholland. Lord Salmon, dissenting, interpreted Mulholland and Clough as cases in which disclosure was ordered because the security of the State required it.80 He concluded his judgment as follows:81

“The immunity of the press to reveal its sources of information save in exceptional circumstances is in the public interest, and has been so accepted by the courts for so long that I consider it is wrong now to sweep this immunity away. The press has been deprived of this immunity only twice, namely in the Clough and Mulholland cases. And the exceptional circumstances in each of those cases were that the security of the nation required that the press's source of information must be revealed. Certainly no such circumstances appear in the present case. I do not say that national security will necessarily always be the only special circumstances but it is the only one which has been effective until now. Moreover, there are no circumstances in this case which have ever before deprived or ever should deprive the press of its immunity against revealing its sources of information. The freedom of the press depends on this immunity. Were it to disappear so would the sources from which its information is obtained; and the public would be deprived of much of the information to which the public of a free nation is entitled.”

Subsequent to these decisions, section 10 of the Contempt of Court Act 1981 was enacted, providing that:

“No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.”

As regards the punishment for refusal to answer a question, the Supreme Court in Keegan v de Burca,82 by a majority,83 held that only a fixed sentence was proper. They took this view on the basis that it was of the nature of criminal contempt (in contrast to civil contempt) that it should be punitive rather than coercive.84 McLoughlin, J, dissenting on this matter, argued first that refusal to answer a question amounted to civil rather than criminal contempt. The judge's analysis on this aspect is less than fully clear or


79

[1981] 1 All ER 417.

80

Id, at 472.

81

Id, at 475.

82

[1973] IR 223.

83

O Dalaigh, CJ and Walsh J, McLoughlin J dissenting.

84

The majority also derived support from Ex parte Fernandez, 10 CBN 53 (1861) and dicta in other English decisions.



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convincing. He went on, however, to make a cogent argument in favour of including coercive orders within the repertoire of a judge in cases where a witness refuses to answer a question:

“A contempt in the face of the court may be an act complete in itself, e.g., disorderly conduct in court, intimidating the jury or hurling insults at the judge; in other words it is an act which, as expressed in one of the cases cited to us, is one which 'having been done cannot be undone'. Such a contempt is capable of being measured and an appropriate sentence fixed for it. Refusal by a party sworn to answer a question is not an act complete in itself, it is an offence which continues so long as the refusal continues and cannot be appropriately measured while the offence continues; if dealt with by a fixed sentence, the sentence might be oppressive on the offender whereas a sentence which ends when the offence ceases and the contempt is purged cannot be oppressive. It is not the declaration of refusal to answer the question but the failure to comply with the requirement which is the gist of the offence. Further, in a case such as this the purpose of the sentence is not primarily punitive but coercive and more strictly in the interests of justice and the effective administration of justice. By this means the wrong can best be remedied and the plaintiffs' right of action duly litigated.

“The Constitution confers on the High Court established under the Constitution full original jurisdiction in all matters civil and criminal. Inherent in this jurisdiction is the jurisdiction to deal with contempt of court; it is a necessary ancillary power to enable that court to exercise its jurisdiction by suppressing any interference with its exercise. To my mind the way the contempt was dealt with by the [trial Judge] accords with good reason and sound commonsense; to set aside the order made by him would, I think, be a derogation of the jurisdiction conferred on the High Court by the Constitution.”85

As regards privileges, it may be mentioned that, as well as legal privilege,86 sacerdotal privilege87 is recognised by the Irish courts, in contrast to their English counterparts. In Cook v Carroll,88 Gavan Duffy J adverted to this difference, noting that Wigmore had attributed the English approach to antipathy for the Catholic Church. Gavan Duffy thought that:

“the rule was first adopted in England at a period when religious bias was inevitable and when public opinion would have resented the


85

[1973] IR, at 236.

86

See R Byrne & W Binchy, Annual Review of Irish Law, 1988, 331–334 (1989).

87

Cook v Carroll [1945] IR 515 (High Ct, Gavan Duffy J), ER v JR; [1981] IR 125 (High Ct, Carroll, J). Cf Forristal v Forristal and O'Connor, 100 ILTR 182 (Circuit Ct, Judge Deale, 1966). See Yellin, The History and Current Status of the Clergy – Penitent Privilege, 23 Santa Clara L Rev 95 (1983).

88

[1945] IR, at 521–522.



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privilege as being mainly a concession to Popish priests. It is sometimes forgotten that the Catholic Emancipation Act, with its provisions for suppression and banishment, proclaimed the dislike of the Jesuits and members of other religious orders as late actually as the year 1829; a spirit of that sort is very powerful and dies hard.”

(c) Parties

Parties to litigation may, of course, be guilty of contempt in facie curiae.89 This conduct may be of several varieties.

Disrupting the court is a clear case.90 A defendant may refuse to recognise the court, or refuse to plead, or to give evidence; he or she may sit when told to stand and stand when told to sit. He or she may make noise or abuse the court. He or she may insist on making political or other irrelevant statements at any time.

The court has several other strategies available to deal with disruption: it may, for example, impanel a jury to determine whether a defendant is mute of malice or by visitation of God, and may enter a plea of not guilty on the defendant's behalf91; it may warn the litigant,92 adjourn the proceedings briefly,93 clear the court (where spectators are the indirect source or object of a litigant's disruption), place a defendant under restraint,94 or exclude the defendant from the court.95

These strategies are without prejudice to the possibility of contempt proceedings, where appropriate.96

Apart from disruption, during the proceedings a party – especially one who has just been convicted or who has had a judgment made against him – may make some form of disrespectful protest. As Borrie & Lowe observe,

“[a]t this stage the potential interference with the administration of justice, at least in the particular case, is minimal and, especially where the outburst is spontaneous, judges should be, and usually are, tolerant


89

See Borrie & Lowe, 51–53.

90

See Zellick, The Criminal Trial and the Disruptive Defendant, 43 Modern L Rev 121, 284 (1980) for a comprehensive analysis.

91

Id, at 126–127.

92

Id, at 127.

93

Id, at 127–128.

94

Id, at 133–135.

95

Id, at 284 ff. As to safeguards when the defendant is thus excluded, see id, at 289 ff. Irish cases where the defendant was excluded include the trial of Eddie Gallagher, in the Special Criminal Court where Mr Gallagher was removed from a preliminary hearing: Id, at 122, citing The Times 30 March 1976, and The People (AG) v Jasinski, 1 Frewen 283 (CCA, 11 March 1963).

96

Zellick, supra, at 128–133.



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and understanding.”97

Nevertheless, in some such cases the party will be guilty of a clear contempt, as where he causes an injury or makes a threat,98 or is otherwise seriously insulting to the court. In Ex parte Tanner MP,99 during criminal proceedings before magistrates, the defendant said to the magistrates: “Do you think I would subject gentlemen of position to gratuitous insult, by placing them on the table before you. I am to be sentenced by you with the sentence in your pocket. Send me to gaol. Do your worst – I defy you”. The Exchequer Division was of the view that, while “so much depends upon tone, gesture and manner”, these words (unexplained in the judgments by any contextual background) were capable of amounting to contempt.

(d) Jurors

Misbehaviour by a juror in court may amount to contempt in facie curiae. Misconduct may be as trivial as eating sweetmeats100; inane – wearing a horror mask when about to be sworn101; neglectful – leaving court during the course of the proceedings without permission102; rash – arriving in court having drunk half a gallon of beer103; or reckless – deciding a verdict on the toss of a coin.104

The practical importance of contempt in relation to juror misconduct has diminished with the enactment of section 34 of the Juries Act 1976, which provides as follows:


(1)


Any person who, having been duly summoned as a juror, fails without reasonable excuse to attend in compliance with the summons or to attend on any day when required by the court shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £50.


(2)


A juror who, having attended in pursuance of a summons, is not available when called upon to serve as a juror, or is unfit for service by reason of drink or drugs, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £50.


97

Borrie & Lowe, 51.

98

Cf Mitchell v Smyth [1894] 2 IR 351 (QB Div, 1893).

99

Judgments of the Supreme Court (Ireland), p343 (Exch 1889). See also In re Gregg, 3 ILR 316 (QB, 184).

100

Weleden v Elkington, 2 Plowd 516, at 518a (1578). This would scarcely be considered contempt today: Borrie & Lowe, 51 doubt that it would.

101

Daily Telegraph, 11 September 1979, cited by Borrie & Lowe, 51.

102

See Oswald, 69, R v Rhode, The Times 12 February 1894, went very far in fining a juror £20 for rushing out of court without permission when “seized with sickness” (Borrie & Lowe, 50).

103

Borger, Re Reynolds, 103 CCC 168 (1952).

104

Langdell v Sutton, Barnes 32, 94 ER 791 (1737).



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(3)


Except in a case to which section 14 applies,105 a person shall not be guilty of an offence under subsection (1) in respect of failure to attend in compliance with a summons unless the summons was served at least fourteen days before the date specified therein for his first attendance.”

Three other offences under the 1976 Act should also here be noted. Section 35 provides as follows:


(1)


If any person who has been fully summoned as a juror makes or causes or permits to be made on his behalf a false representation to the county registrar or any person acting on his behalf, or to a judge, with the intention of evading jury service, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £50.


(2)


If any person makes or causes or permits to be made on behalf of another person duly summoned as a juror a false representation in order to enable that other person to evade jury service, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £50.


(3)


If any person refuses without reasonable excuse to answer, or gives an answer known to him to be false in a material particular, or recklessly gives an answer that is false in a material particular, when questioned by a judge of a court for the purpose of determining whether that person is qualified to serve as a juror, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £50.”

Section 36 makes it an offence, with a maximum fine of £50, to serve on a jury knowing that one is ineligible for service or disqualified.

Finally section 37 makes it an offence with the same maximum penalty to refuse to be sworn as a juror on being called to be so sworn.

Jurisdiction

The High Court and Supreme Court obviously have jurisdiction to deal with in facie contempts. The Circuit Court106 and District Court107 also have power to deal summarily with contempt in the face of the court. The District


105

Section 14 is concerned with the summoning of jurors to make up a deficiency. The urgency of the case explains why it is here excepted from the scope of section 34(3).

106

See J Deale, Circuit Court Practice and Procedure in the Republic of Ireland, para 14.22 (1989).

107

J Woods, The District Court Practitioner – Remedies, 52 (1987). The District Court may also bind for good behaviour in relation to contemptuous conduct in court: Ex parte Tanner MP, Judgments of the Superior Courts (Ireland) 343 (Ex Div, 1889).



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Court's powers are derived from section 16(1) of the Petty Sessions (Ireland) Act 1851 which provides that:

“if any person shall wilfully insult any Justice or Justices so sitting in any such Court or place, or shall commit any other contempt of any such Court, it shall be lawful for such Justice of Justices by any verbal order either to direct such person to be removed from such court or place, or to be taken into custody, and at any time before the rising of such Court by warrant to commit such person to gaol for any period not exceeding seven days, or to fine such person in any sum not exceeding two pounds.”

Where a contempt is committed in court, the District Justice has power to order the apprehension of the contemnor even after he has left the court, at all events where the order is substantially contemporaneous to the discovery of the departure. In Mitchell v Smyth,108 in 1893, a person convicted of having a dog at large without being muzzled was fined two shillings and sixpence. While the next case was in progress, he made a threat against the constable who had been concerned in securing his conviction. He then left the court. The magistrate was immediately notified of what had taken place and he ordered the man's apprehension.

The Queen's Bench Division held that this was a proper exercise of power under section 9. Harrison J said:

“That being an order which the magistrate had jurisdiction to make, I am of opinion that, as the constable contemporaneously and instantaneously proceeded to put into force that order, he was justified in acting as he did, and properly carried out an order properly made; and I am of opinion that it was not necessary that he should have completed the actual arrest strictly in the presence of the magistrate, and within the Court, if he did so as reasonably near to the moment when it was given as could be.”109

Madden J concurred in this view of the section:

“It was designed to preserve the decorum and order of proceedings in Court; and the powers which it gives were intended to apply to contempt of Court committed in court, and to be put into operation immediately or as soon as possible after such an occurrence. But here the offence was committed in court, and the order was made in the presence of the alleged offender, and immediately after the words were spoken, or as soon as the attention of the Justice was called to what had occurred.”110


108

[1894] 2 IR 351 (QB Div, 1893).

109

Id, at 358.

110

Id, at 362.



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He rejected the argument that the mere fact that the order so made was carried out and consummated outside the Court was in itself sufficient to vitiate the whole proceeding. He was aware of no authority for such a proposition; and he noted that “such a construction would render the provisions of the section nugatory in a state of circumstances which can easily be suggested, and of which the present case affords an illustration”.111

Gibson J sounded a warning note as to the limits of the principle which the Court was endorsing:

“.... [W]here such an oral order as this is made, it should be made contemporaneously, and in the presence of the person sought to be affected thereby. Simultaneity is the essence of this section; and I should be sorry if it was thought that, after a man had gone away, a magistrate would be at liberty to send after him, and to proceed thereupon to adjudicate on an alleged contempt.”112

Section 9 applies to contempts by lawyers as much as to those of litigants or other persons. In In re Rea,113 the Queen's Bench Division rejected all arguments to the contrary. O'Brien J said:

“No ground has been suggested for holding that the provisions of the statute respecting contempt of court do not apply to professional persons engaged in the case at hearing, as well as to others; the words of the statute are general, applying to acts done by 'any person', and there is nothing in the statute to restrict the application of those words.”114

Opportunity for Defence

In the nature of things, many contempts in facie curiae will be manifest and present no problems as to proof. In come cases, however, doubts of this nature can arise. A shoe is thrown at a judge from the body of the court: there may be three or four likely suspects. How is the matter to be determined? And what opportunity for defending himself is to be afforded the primary suspect? Even in cases where there is no dispute as to who did the act occasioning the intervention of the judge, the question can arise as to whether the act constitutes a contempt. What opportunity for arguing that it is not should be given to the defendant?

In Re Pollard,115 the Judicial Committee stated that:


111

Id, at 363.

112

Id, at 360.

113

2 LR Ir 429 (QB Div, 1878).

114

Id, at 431. See also In re Rea (No. 2), 4 LR Ir 345 (QB Div, 1879).

115

LR 2 PC 106 (1868).



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“no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it be given to him.”

In In re Rea,116 in a case dealing with the in facie contempt jurisdiction of magistrates under section 9 of the Petty Sessions (Ireland) Act 1851, O'Brien, J referred to Re Pollard and said:

“It would apparently follow from that judgment that, before any order to commit a party for contempt of Court be made, he should be told what was the conduct on his part which was relied on as a contempt, and for which it was proposed to commit him; and should be allowed an opportunity of showing why such order should not be made.”117

In In re Rea (No. 2),118 however, some limitations appeared. A solicitor who had been found guilty of in facie contempt sought to challenge the warrant of committal on the basis that, contrary to what it stated, he had not been offered an opportunity of showing cause why he should not be committed. Counsel on his behalf admitted to the Queen's Bench – unwisely as it transpired – that he had committed the contempt. May, CJ referred to the statement from Re Pollard quoted above and commented:

“... no doubt as a general rule that doctrine is a well-founded and constitutional doctrine; but I am not aware that where an admitted contempt has been offered to a Court, in the face of the Court, it is necessary for the presiding Judge, before removing or committing the offender, to call on him to show cause why he should not be committed or removed; and it would appear clear that the section of the Act above referred to contemplated no such formality.”

Fitzgerald J, concurring, stated:

“In my opinion, if it appeared plainly on the warrant that all the proceedings took place in the presence and hearing of Mr Rea himself, it was unnecessary that there should be such an averment as that in the warrant. I may observe, too, that the statute points out how this statutable authority was to be exercised, and says not one word of any requisition to the defendant to show cause.”119


116

2 LR Ir 429 (QB Div, 1878).

117

Id, at 433. See also Ex parte Tanner MP, Judgments of the Superior Courts (Ireland) 343, where Palles CB expressed strong support for Pollard, but felt that, or the authorities, it could not be applied to a case where the magistrates bound for good behaviour as this was the exercise of a preventive rather than a punitive jurisdiction.

118

4 LR IR 345, at 348 (QB Div, 1879).

119

Id, at 349. Contrast O'Brien, J's reluctant, and only partial, concurrence, id, at 349. It would be wrong to read too much into the case. The Chief Justice intimated that, had the proceedings been for certiorari rather than habeas corpus, the outcome might not necessarily have been the same: id, at 348.



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It is doubtful whether such laxity as to due process would survive constitutional scrutiny today.

Irish courts have yet to address in detail the due process requirements in in facie contempt proceedings, save on the issue of the entitlement to a jury. Several questions arise. The first relates to legal representation.

In Balogh v Crown Court at St Albans,120 the defendant, a solicitor's clerk, had asked for legal representation, stating that he did not feel competent to conduct his own defence. The judge had refused this on the basis that the defendant was “articulate and intelligent”. On appeal, Lord Denning MR observed that the trial judge “would have done well to have remanded him in custody and invited counsel to represent him ....”121 He noted that “disruption of the court or threats to witnesses or jurors should be visited with immediate arrest. Then a remand in custody and, if it can be arranged, representation by counsel”.122 Stephenson, LJ observed that there might be cases where it is proper to commit a contemnor without legal representation. He added that:

“a judge can always ask counsel to represent a contemnor ... and for my part I would hope that there would be few cases ... where this course should not be taken if counsel is available. There is every reason not to cut means of justice, which are necessarily curt if not rough, even shorter than they need be. This appellant asked for legal representation and I am of opinion that the judge should have tried to find him counsel”.123

It may well be that in Ireland the Constitution requires even more stringent precautions in relation to legal aid. In The State (Healy) v Donoghue,124 the Supreme Court emphasised that persons facing a serious criminal charge are entitled to criminal legal aid. O'Higgins CJ stated that:

“[w]here a man's liberty is at stake, or where he faces a very severe penalty which may affect his welfare or livelihood, justice requires more than the application of normal and fair procedures in relation to his trial. Facing, as he does, the power of the State which is his accuser, the person charged may be unable to defend himself adequately because of ignorance, lack of education, youth or other incapacity. In such circumstances his plight may require, if justice is to be done, that he should have legal assistance. In such circumstances, if he cannot provide such assistance by reason of lack of means, does justice under the Constitution also require that he be aided in his defence? In my


120

[1974] 3 All ER 283.

121

Id, at 289.

122

Id.

123

Id, at 293.

124

[1976] IR 325 (Sup Ct).



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view it does.”125

It should be noted that in this passage the Chief Justice did not commit himself to the proposition that there is a right to criminal legal aid in all cases where an indigent defendant is at risk of losing his liberty. Indeed the right appears to be conditional on the defendant's inability to defend himself adequately because of some specific incapacity.

Henchy J's analysis appears to envisage a more wide-ranging entitlement than that favoured by O'Higgins, CJ:

“A person who has been convicted and deprived of his liberty as a result of a prosecution which, because of his poverty, he has had to bear without legal aid has reason to complain that he has been meted out less than his constitutional due. This is particularly true if the absence of legal aid is compounded by factors such as a grave or complex charge; or ignorance, illiteracy, immaturity or other conditions rendering the accused incompetent to cope properly with the prosecution; or an inability, because of detentional restraint, to find and produce witnesses; or simply the fumbling incompetence that may occur when an accused is precipitated into the public glare and alien complexity of courtroom procedures and is confronted with the might of a prosecution backed by the State.”126

Griffin J expressed the opinion that, “when the circumstances are such that if, in the event of a conviction or on a plea of guilty, a sentence of imprisonment is likely, a District Justice should inform an indigent defendant of his right to legal aid under the Act”.127 The question of the likelihood of a sentence of imprisonment is worth noting. Griffin J appears to be of the view that there should be no necessary entitlement to legal aid where imprisonment is possible but seems unlikely. How the District Justice can make this assessment in the absence of evidence is difficult to discern.

Kenny, J did not attempt to express a final opinion on the question whether every accused person has a constitutional right to have legal representation in a criminal trial for a serious offence. Referring to Article 38.1 of the Constitution, which provides that “[n]o person shall be tried on any criminal charge save in due course of law”, he said:

“The use of the words 'in due course' are an echo of provisions in the Constitution of the United States of America which, through Coke's interpretation, come from Magna Carta. They emphasise that a trial in strict accordance with law may not be a fair one; when the Court is satisfied that this is the position, the proceedings should be quashed


125

Id, at 350.

126

Id, at 354.

127

Id, at 361.



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by certiorari. It would be foolish to attempt to lay down what constitutes a fair trial because its requisites change from generation to generation. Thus, for hundreds of years a prisoner charged with felony was not allowed the assistance of counsel and our judicial ancestors thought that, despite this, he was getting a fair trial. In every case the question must be whether the matter complained of was a procedural irregularity or a defect which had the result that the accused did not get a fair trial judged by the standards at the time when the case is heard. If the High Court comes to the conclusion that the trial was not fair, it should grant certiorari. The cases in which this State-side order may be granted cannot, and should not, be limited by reference to any formula or final statement of principle. The strength of this great remedy is its flexibility.”128

It would seem fair to interpret Healy's case as authority for the proposition that, at least in cases of incapacity and perhaps in all cases, an indigent defendant facing a charge which involves the risk of imprisonment is entitled to criminal legal aid. That this uncertainty as to its exact scope is well founded may perhaps be established by the decision of the Supreme Court the following year in The State (O) v Daly,129 where O'Higgins CJ, this time delivering a judgment with which the other members130 simply concurred, stated:

“There is a danger that the decision in Healy's case may be misunderstood in the sense that it may be regarded as applying to situations and circumstances which were not contemplated. It is worth recalling, therefore, that the decision in that case applies only to the trial of persons charged with criminal offences and not to the earlier or ancillary stages of criminal proceedings. It has to do with the circumstances in which the interests of justice and the requirements of a fair trial necessitate that the person charged be provided with legal assistance if he cannot provide such for himself. Regard must be had to the seriousness of the charge having regard to the person charged, the nature of the penalty he faces and his capacity in the circumstances to speak for and defend himself adequately. Obviously the approach ought to be flexible rather than otherwise, as the circumstances of each case must dictate what justice in those circumstances requires.”131

It thus seems that an indigent defendant accused of in facie contempt should expect to be granted legal aid. Whether the courts would hold that this entitlement should be restricted to cases of incapacity in addition to indigency is doubtful. In practice, the threat of a sentence of imprisonment would greatly increase his or her prospects of being granted legal aid.


128

Id, at 364.

129

[1977] IR 312 (Sup Ct).

130

Kenny and Parke, JJ.

131

[1977] IR, at 315–316.



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As regards due process requirements apart from legal aid, O'Higgins CJ in Healy's case considered that the following passage from Gannon J's judgment in the High Court in Healy put “very clearly what one would expect to be features of any trial which is regarded as fair”:132

“Among the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to be adequately informed of the nature and substance of the accusation, to have the matter tried in his presence by an impartial and independent court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his accuser, to be allowed to give or call evidence in his defence, and to be heard in argument or submission before judgment be given. By mentioning these I am not to be taken as giving a complete summary, or as excluding other rights such as the right to reasonable expedition and the right to have an opportunity for preparation of the defence.”133

Gannon J perceived these rights as being “anterior to and ... not merely deriv[ing] from the Constitution ...”.134

In the context of in facie contempt this passage is of considerable importance. It is difficult to see how in facie contempt proceedings, if tried summarily by the Judge before whom the alleged contempt has occurred, could preserve for the defendant the right to have the matter tried by “an impartial and independent court or arbitrator”. Of course, the judge would strive to be impartial in such trials but his multiple roles as witness, prosecutor, judge and jury would at the least not make it evident beyond argument in every case that he is completely impartial.135 Moreover, the accused in in facie contempt proceedings will have difficulty in calling evidence in his defence. The main witness (in effect) against him will often be the Judge himself, yet the Judge will not give evidence or be subject to cross-examination.

However, the fact that not all the features identified in Healy as essential to a fair trial are present when in facie contempt is summarily disposed of does not conclusively establish that the latter procedure is unconstitutional. It is reasonable to suppose that Gannon J, in the passage cited, was concerned with what might be called offences belonging to the mainstream of the criminal


132

[1976] IR, at 349–350.

133

Id, at 335–336.

134

Id, at 336.

135

In The State (DPP) v Walsh, [1981] IR 412, at 440 (Sup Ct), Henchy J confronted this difficulty. It may be noted that his analysis does not seek to assert that no problem exists. Speaking of contempt proceedings in general, he stated:

“It may be said that it is short of the ideal that a judge may sit in judgment on a matter in which he, or a colleague, may be personally involved. Nevertheless, in such matters judges have to be trusted, for it is they and they alone who are constitutionally qualified to maintain necessary constitutional standards.”



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law. In facie contempt is an offence sui generis, since it is committed in the presence of the court and in circumstances where, if it is not capable of being immediately tried and punished, the administration of justice itself may be seriously threatened. We will return to this aspect when we come to consider whether the present procedure for punishing such contempt is in need of reform.

If the requirements of The State (DPP) v Walsh136 are adhered to, there would also have to be a jury trial on the factual elements of the case, such as whether the defendant made a particular remark, and what exactly was said. In this context it is worth recalling that in Walsh Henchy J said:

“In upholding the current position, to the extent of saying that it is for a judge and not for a jury to say if the established facts constitute a major criminal contempt, I would stress that, in both the factual and legal aspects of the hearing of the charge, the elementary requirements of justice in the circumstances would have to be observed. There is a presumption that our law in this respect is in conformity with the European Convention on Human Rights, particularly articles 5 and 10(2) thereof.”137

Unsatisfactory Answering in Bankruptcy Proceedings

As a concluding excursus in this chapter, it is interesting to note the position in bankruptcy proceedings. Section 385 of the Irish Bankrupt and Insolvent Act 1857 provided in part that if any person “... shall refuse to answer any lawful question put by the Court, or shall not fully answer any such question to the satisfaction of the Court ...” it should be lawful for the Court by warrant to commit him or her to such prison as the Court should think fit, “there to remain without bail until he or she shall submit himself or herself to such Court to be sworn, and full answers make to the satisfaction of such Court to all such lawful questions as shall be put ...”

In In re Garvine,138 the Court of Appeal addressed the meaning of section 385. Fitzgibbon LJ is reported as stating that the Court “should bear in mind that this was not a punitive code at all in its original objects, and that its great object was to secure all possible advantage to the assignees.”139 Holmes, LJ, concurring, said that “it was quite clear from the section ... that the committal was not by way of punishment, but with a view to obtaining at some future time more satisfactory answer to questions so as to enable the assignees to collect or realise all the property of the bankrupt ...”140


136

Supra.

137

Id, at 440.

138

4 NIJR 18 (CA, 1903).

139

Id, at 19.

140

Id. See also In re M'Loughlin, [1916] 2 IR 583, at 606 Rev'd by HL, sub nom Hollinshed v M'Loughlin, [1917] 2 IR 28 (1916).



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In Hollinshead v M'Loughlin,141 the House of Lords, on appeal from the Irish Court of Appeal, emphasised that the purpose of the section was to enable the court to seek to determine the truth, rather than to achieve any other purpose, such as to force the witness to give an answer which the court wished to hear. Lord Atkinson said that he thought the statute had been passed:

“for the sole purpose of enabling a thorough and searching examination to be considered to ascertain the truth as to the property of the bankrupt. If it is used for any other purpose, then it is abused ...”142

Lord Shaw of Dunfermline warned that the examination of the bankrupt ought to be conducted in such a way as “to avoid any kind of concussion upon the bankrupt to make him give evidence in one direction rather than another. A bankruptcy examination ought not to be converted into a torture chamber”.143

In the Court of Appeal, O'Brien LC had deprecated the practice of cross-examining the bankrupt; when the Court was exercising its discretion as to “putting in force this tremendous power of depriving a man of his liberty”,144 the protection which the legislature had placed round this examination ought not to be forgotten. On appeal, Viscount Haldane took a different view. Professing agreement with the Lord Chancellor “in thinking that the section is not enacted for the purpose of giving a merely punitive jurisdiction to the learned judge who exercises it”,145 he went on to say that the jurisdiction was:

“given for the purpose of enabling him to compel an answer which, is candid, and, therefore, when you come to ask what is the difference between searching examination and cross-examination in this connection, I think the difference is an illusory one”.146

The matter came before Kenny J, in In re Mc Allister147 in 1972. Mr McAllister, prior to being adjudicated bankrupt, had by cheque bought large numbers of cattle in the State during a bank strike, and had taken them to Northern Ireland where he sold them for cash. The cheques were dishonoured when the banks reopened. On examination on oath, Mr McAllister gave evidence that he had given £328,000 to a man from County Down to invest it, on the man's assurance that he could get a higher rate of interest than in hire-purchase companies and bank accounts with the State. The man had disappeared and Mr McAllister gave evidence that he did not know where he was. Kenny J did not believe this evidence and was convinced that “the bankrupt knows where the £328,000 is and that he has probably


141

[1917] 2 IR 28 (1916).

142

Id, at 34.

143

Id, at 36.

144

[1916] 2 IR, at 596.

145

[1917] 2 IR, at 32.

146

Id.

147

[1973] IR 238 (High Ct, Kenny, J, 1972).



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placed it in a bank outside the State”.148

Kenny J noted that Mr McAllister had “not made full answers to lawful questions”.149 When the Official Assignee applied for an order that he be committed to prison until he had given answers to the satisfaction of the Court, Mr McAllister contended that section 385 was repugnant to the Constitution.

On behalf of Mr McAllister it was argued that his failure to make full answers to the satisfaction of the Court was a criminal contempt and that the Court, when it decided to commit a person under the section was, in substance, convicting him of perjury. The offence was not a minor one and thus he was entitled to a jury. Kenny J responded that the failure to make full answers to lawful questions in bankruptcy “is not a criminal contempt even if the categories of criminal contempt are applicable to s.385 ... That section authorises a sentence of indeterminate duration, while there was no provision for this when Miss de Burca refused to answer questions.”150 This passage suggests that the specific prescription of a sentence of indefinite duration would, in Kenny J's view, take conduct out of the domain of criminal contempt, even in contexts other than bankruptcy.

Kenny, J went on to state that the object of section 385 was “not to give the Court power to punish or indirectly to enable it to convict a person of perjury but to make it possible to commit a person to prison until he gives satisfactory answers so that his assets may be made available in the bankruptcy.”151 He was confident that committal in the case would “improve the bankrupt's memory as to what he did with the £328,000 and that it will probably persuade him to disclose where he has this money. If his memory is not made better some creditors will suffer very large losses.”152 He concluded his analysis by observing that counsel for Mr McAllister was correct in saying that the Court must be satisfied that the bankrupt has given false evidence on oath before he convicts him, but Kenny J considered that this “does not mean that he is convicted of perjury or that he has committed any offence. He is not being tried on a criminal charge and so the section is not repugnant to Article 38.s.5 of the Constitution”.153

Kenny J went on to consider whether the section was repugnant to the Constitution because the bankrupt or a witness could be compelled under it to answer questions which might incriminate him. He reserved the question whether there was a constitutional right against self-incrimination but interpreted the section as entitling a bankrupt or person examined in


148

Id, at 239.

149

Id, at 240.

150

Id, at 241. Cf Keegan v de Burca, [1973] IR 223.

151

Id.

152

Id, at 242.

153

Id.



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bankruptcy to decline to answer any question the answer to which might disclose that he had committed a criminal offence. How precisely Kenny J arrived at this interpretation is not clear. His emphasis on the inclusion of the adjective “lawful” before “question” suggests that he considered that a question requiring a self- incriminatory answer would not be lawful. But this analysis is scarcely fully convincing, since a question is no less lawful on account of the fact that a “satisfactory” answer would incriminate the witness. In the absence of there being a constitutional entitlement to avoid self incrimination – an issue on which Kenny J studiously declined to commit himself – the matter of interpreting section 385 became one of ordinary statutory interpretation; it is conceivable that the general principle of not having to incriminate oneself could be read into Section 385 as an implicit qualification of its scope. That, in effect, is what Kenny J appeared to do.154

Section 24 of the Bankruptcy Act 1988 replaces section 385 of the 1857 legislation. It provides in part that, where the bankrupt or any person summoned or brought before the Court “refuses or fails to answer any lawful question put by the Court or does not fully answer any such question ...”, the Court may order that he or she be committed to prison to await the further order of the Court. It is to be noted that the section contains no requirement, equivalent to section 385, that the question be not fully answered “to the satisfaction of the Court”. The issue of interpretation thus arises as to an answer which is full in the sense that it deals completely with the question raised but is, in the Court's view, entirely untrue, and thus not to its satisfaction. Under section 385, as we have seen, the Court could commit in such circumstances; viewing section 24 in isolation, it is far from clear that it authorises or requires the Court to take this course. The position is, however, complicated by section 25, which provides that, where the bankrupt or any person is in prison pursuant to an order of the Court under section 24, the Court may by warrant order that he be brought before the Court. Where he satisfies the Court that he has complied with its lawful requirements, the Court must order his release from custody. In any other case he may be taken back to prison without any further order. The requirement here that the person should satisfy the court is reminiscent of section 385, but it seems that its inclusion in section 25 cannot have the effect of enlarging the actus reus of section 24. Section 24 prescribes that the failure fully to answer a question places the person engaging in such contempt at risk of being committed: it does not contain any reference to answers which are full but unsatisfactory.


154

For an enlightening analysis of Kenny J's approach, see Casey, 423–424. Kenny J accepted the argument on behalf of Mc McAllister that the prohibition on bail in section 38.5 was inconsistent with Article 34.3.1° of the Constitution. He did “not think that the National Parliament has power to pass legislation that the High Court shall not give bail to an accused person ...”Id, at 242. Accordingly he struck down the words “without bail” in the section but otherwise left it intact. Pending his appeal to the Supreme Court Mr McAllister was given bail. He did not answer to his bail, and the appeal was later dismissed for want of prosecution.



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CHAPTER 3: SCANDALISING

Introduction

Scandalising the court is an “archaic description”1 of a form of contempt that has, even today, continuing vitality.2 In The State (DPP) v Walsh,3 O'Higgins, CJ stated that scandalising the court is committed:

“where what is said or done is of such a nature as to be calculated to endanger public confidence in the court which is attacked and, thereby, to obstruct and interfere with the administration of justice. It is not committed by mere criticism of judges as judges, or by the expression of disagreement – even emphatic disagreement – with what has been decided by a court. The right of citizens to express freely, subject to public order, convictions and opinions is wide enough to comprehend such criticism or expressed disagreement.

Such contempt occurs where wild and baseless allegations of corruption or malpractice are made against a court so as to hold (sic) the judges'... to the odium of the people as actors playing a sinister part in a


1

The State (DPP) v Walsh, [1981] IR 412, at 421 (Sup Ct, per O'Higgins, CJ).

2

See Borrie & Lowe, 226–247, Miller, ch 12, Arlidge & Eady, 17–19, 156–165, Walker, Scandalising in the Eighties, 101 LQ Rev 359 (1985), the Phillimore Committee Report, paras 159–167, the English Law Commission's WP No. 62, Criminal Law: Offences relating to the Administration of Justice, 113–115, 118 (1975) and its Report (Law Com No. 96, 1979), paras 3.64 – 3.70, the Law Reform Commission of Canada's WP 20, Contempt of Court, 30–35 and Report on Contempt of Court, 24–27, the Law Reform Commission of Australia's DP No. 26, Contempt and the Media, ch – 8 and Reform on Contempt of Court, ch 10 Caillard, Scandalizing the Court, 14 Melbourne UL Rev 311 (1983), Milton, A Cloistered Virtue? 87 S Afr LJ 424 (1970), M Chesterman, Public Criticism of Judges (ALRC Research Paper No 5, 1984).

3

[1981] 412, at 421.



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caricature of justice'.”4

This passage appears to recognise clearly the Constitutional dimension to the right of criticism of the courts and of judges. It would, however, seem wrong to believe that the Constitution changed in any significant manner the elements of scandalising at common law. In Re Kennedy and McCann,5 O'Higgins, CJ had said:

“The right of free speech and the full expression of opinion are valued rights. Their preservation, however, depends on the observance of the acceptable limit that they must not be used to undermine public order or morality or the authority of the State. Contempt of court of this nature carries the exercise of these rights beyond this acceptable limit because it tends to bring the administration of justice into disrepute and to undermine the confidence which the people should have in judges appointed under the Constitution to administer justice in our Courts.”

The Chief Justice noted that the distinction between contempt of court and what can fairly be regarded as reasonable criticism had been stated many years previously by Lord Russell of Killowen CJ, in R v Gray6 as follows:

'... Any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicke LC characterised as 'scandalising a court or a judge'.7 That description of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or to the public good, no Court could or would treat that as contempt of Court'.”

O'Higgins, CJ commented that, while of course Lord Russell had been referring to the state of the law of England in his time, his remarks, in the view of the Chief Justice, applied “equally well to the state of the law in our country under the Constitution”.8


4

Citing AG v Connolly [1947] IR 213, at 220 (per Gavan Duffy, P).

5

[1976] IR 382, at 385–386.

6

[1900] 2 QB 36, at 40.

7

In Re Read and Huggonson, 2 Att 469 (1742).

8

[1976] IR, at [387].



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Unquestionably, Lord Russell's statement is the locus classicus of both British9 and Irish10 law.

Offence not Obsolete

For a short time in Britain it had appeared that the offence of scandalising had outlived its usefulness. In McLeod v St Aubyn,11 in 1899 the Judicial Committee of the Privy Council expressed the view that committals for contempt by scandalising the Court itself had “become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory to them”.12

The accuracy of the assessment was quickly disproved by Gray13 and subsequent English14 decisions, (notably R v Editor of the New Statesman15).

In Ireland, it is clear that the offence of scandalising is far from obsolete. In AG v O'Kelly,16 in 1928, Sullivan P referred to the Privy Council's opinion in McLeod v St Aubyn,17 and said:

“In view of the subsequent decisions in England in Gray18 and R v The Editor of the New Statesman,19 I cannot accept the dictum in McLeod's Case20 as accurate. In each of these cases the English courts recognised and exercised the jurisdiction to punish on summary process the editor of a newspaper for contempt of court in publishing scandalous matter of a Judge with reference to his conduct in judicial proceedings.”21

Hanna J identified the increasing influence of the press as a reason for the


9

Cf Badry v DPP of Mauritius, [1983] 2 AC 297 (PC).

10

Cf Re Hibernia National Review Ltd, [1976] IR 388, at 390 (Sup Ct, per Kenny, J) AG v O'Kelly, [1928] IR 308, at 315, 318, 319 (where the passage is quoted) and 324, AG v Connolly, [1947] IR 213, at 220.

11

[1899] AC 549 (PC).

12

Id, at 561. The Judicial Committee went on, “less sensibly” (Pannick, 110) to add that:

“in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the court.”

13

Supra.

14

R v Editor of the New Statesman, ex parte DPP, 44 Times LR 301 (1928), R v Commissioner of Police of the Metropolis, ex parte Blackburn (No. 2), [1968] 2 QB 150; see also the Privy Council decisions of Ambard v AG for Trinidad and Tobago [1936] AC 322 and Badry v DPP, [1982] 2 AC 297.

15

Supra.

16

[1928] IR 308 (High Ct, Sullivan, P, Meredith and Hanna, JJ).

17

Supra.

18

Supra.

19

Supra.

20

Supra.

21

[1928] IR, at 315.



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resurgence of the offence of scandalising:

“The cases show that for many years before the hearing of McLeod v St Aubyn22 the practice of proceeding by attachment had not been used, so much so that Lord Morris stated in that case that it had become obsolete. However this may be, it is clear that it has been frequently resorted to both in England and Ireland in the succeeding years during which the Press has attained such a widespread influence, so that, though it may have been at one time dormant, it had at the date of the Constitution become a living procedure, with all its ancient powers. The latest case23 is but a few weeks ago ...”24

In AG v O'Ryan and Boyd,25 in 1945, the High Court took the matter further. Maguire P observed that:

“[I]n one of the cases cited in the course of these proceeding26 it is stated that committal for contempt of Court is obsolete. This, however, is not correct. But in regard to cases which are concluded it is nearly so. The protection of Courts from attacks of this kind where cases are pending is a vital matter, and it is in the public interest in such cases that the Court should intervene and deal severely with the offender. It is different where ... the case is terminated.”27

Gavan Duffy J contented himself with the observation that:

“[w]here the circumstances allow, attacks upon judges are left to the discrimination of the public. When the courts have to take action in a case of this kind, they feel that they are vindicating themselves; consequently, when the chapter is closed, when the offence does not concern pending proceedings, the tendency towards all possible forbearance is strong ...”28

Risk of Prejudice to Pending Proceedings not Essential

It would be quite wrong to conclude from these passages in O'Ryan and Boyd that the rationale for rendering scandalising an offence is based on the risk


22

Supra.

23

Citing the New Statesman case, supra.

24

[1928] IR, at 331.

25

[1946] IR 70 (High Ct, Maguire, P, Gavan Duffy and Haugh, JJ, 1945).

26

One may assume that this was M'Leod v St Aubyn, though the report does not include this as one of the cases cited by counsel. The report (at 77) states, however, that counsel for the Attorney General cited the New Statesman case and AG v Kelly so the Privy Council decisions would thus have been brought to the attention of the Court.

27

[1946] IR, at 82.

28

Id, at 85. In Canada in Reg v Murphy, 4 DLR (3d) 289 (1969) the New Brunswick Supreme Court, Appellate Division rejected the argument that contempt by scandalising was obsolete.



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of prejudice to pending proceedings.29 Gavan Duffy J sought to take such a position; instead he went no further than to counsel extreme caution in taking proceedings for scandalising where there are no pending proceedings. It seems clear from later decisions of the High Court (including a judgment of Gavan Duffy P himself30) and of the Supreme Court31 that there is no reason in principle why a person should not be guilty of scandalising on account of the fact that the criticism does not relate to pending proceedings.

The Actus Reus

1. Who can be scandalised?

The first requirement of the actus reus is that the scandalising be of a court or of a judge in his or her judicial capacity.

(a) Courts

As regards courts, it is clear beyond doubt that scandalising any of the courts established by the Constitution falls within the scope of the offence. Thus, not only the High Court and Supreme Court but also the Circuit Court and District Court and Special Criminal Court, are courts for this purpose. Any doubt about Special Criminal Courts was removed with the decision of AG v Connolly.32 There, the defendant scandalised a Special Criminal Court composed of army officers. He later contended that the offence of criminal contempt could not be committed in respect of that Court any more than it could in respect of an individual in the ordinary service of the State. The High Court, in a judgment delivered by Gavan Duffy P, with which the other members of the Court concurred, disposed of this argument as follows:

“That Court was represented to us as a species of Government Department, with the corollary, I suppose, that, like civil servants, the members of the Court are fair game for an irresponsible critic. This argument was drawn from the facts that the members of the Court are appointed by the Government and are removable by the Government at will. The members of this emergency Court, as at present constituted, happen to be military officers without, I believe, professional qualifications as lawyers; now fair criticism of the court or its constitution, whether from lawyers or laymen, is legitimate, but a wild charge of conducting a mock trial for a capital offence is not. The members of the Court have now had many years' experience of serious criminal trials; they are no novices, though, of course, they share with


29

Such a view was contended for by Hughes, Contempt of Court and the Press, 16 LQ Rev 292 (1900).

30

Cf AG v Connolly, [1947] IR 213, at 219–220 (High Ct, Gavan Duffy P, Maguire and Davitt JJ).

31

Especially The State (DPP) v Walsh, supra.

32

[1947] IR 213 (High Ct, Gavan Duffy, P, Maguire and Davitt, JJ).



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every other Court and every human institution, the liability to make mistakes, notwithstanding their best endeavours. The Court was established under a provision of the Constitution itself and the Legislature has deemed it necessary. The Court was established as a special Court 'for the trial of offences ... where ... the ordinary Courts are inadequate to secure the effective administration of justice and the preservation of public peace and order'. The Court was, therefore, established to administer justice and the defendant in assailing it was attacking the administration of justice and not the administration of the Civil Service or any Government Department. It is one of our functions to protect the administration of justice.

“The power of this court to protect inferior courts against constructive contempts is but one aspect of our general duty of superintendence, another aspect of which is the power to confine them to their proper duties; and the tenure of the members of the Court is irrelevant to the justification that we are asked to exercise for its protection. As we have the necessary power to see that the Special Criminal Court shall not do wrong by straying beyond the confines of its proper jurisdiction, so we have the necessary power to see that its capacity and authority to administer justice within its proper sphere shall not be injured, as they would be if this Court were to let gross attacks upon its credit pass33 with impunity.”

It is now accepted in British law that the proper test to be applied in determining whether a particular tribunal is a court for this purpose is whether the tribunal exercises a judicial rather than an administrative function. In Attorney-General v BBC,34 Lord Scarman said:

“In my judgment, not every court is a court of judicature, i.e. a court in law. Nor am I prepared to assume that Parliament intends to establish a court as part of the country's judicial system whenever it constitutes a court ... I would identify a court in (or 'of') law, i.e. a court of judicature, as a body established by law to exercise, either generally or subject to defined limits, the judicial power of the state. In this context judicial power is to be contrasted with legislative and executive (i.e. administrative) power. If the body under review is established for a purely legislative or administrative purpose, it is part of the legislative or administrative system of the state, even though it has to perform duties which are judicial in character. Though the ubiquitous presence of the state makes itself felt in all sorts of situations never envisaged when our law was in its formative stage, the judicial power of the state exercised through judges appointed by the state remains an independent, and recognisably separate, function of government. Unless a body exercising judicial functions can be


33

Id, at 224–225.

34

[1981] AC 303 (HL (Eng)).



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demonstrated to be part of this judicial system, it is not, in my judgment, a court of law.”35

Legislation36 has provided that the offence of scandalising, or one equivalent to scandalising, may be committed in respect of other tribunals.

(b) Judges' conduct in their official capacity

It is accepted that the offence of scandalising of a judge may be committed only so far as it relates to conduct in the judge's official capacity.

In The Queen v McHugh,37 Lord O'Brien said:

“In his personal character a Judge receives no more protection from the law than any other member of the community at large; and, even in his judicial character, he should always welcome fair, decent, candid, and, I would add, vigorous criticism of his judicial conduct ...”

Thus, wrongfully to accuse a judge of private immorality may constitute defamation but will not amount to contempt. Of course this dividing line may on occasion be difficult to draw.38 The reported decisions in other jurisdictions suggest that the range of liability does not extend as far as might be contended for on theoretical principle. In Theking v Nicholls,39 Griffith CJ observed:

“In one sense, no doubt, every defamatory publication concerning a Judge may be said to bring him into contempt as that term is used in the law of libel, but it does not follow that everything said of a Judge calculated to bring him into contempt in that sense amounts to contempt of Court.”

Thus, in In the Matter of a Special Reference from the Bahama Islands,40 the Privy Council held that criticism of a Chief Justice in his personal capacity could not constitute the offence of scandalising, and in Badry v DPP of Mauritius41 the Privy Council went so far as to hold that criticism of a Supreme Court judge sitting as commissioner of an enquiry into allegations


35

In contrast to Lord Scarman, Viscount Dilhorne appears to have attached predominant significance to the name ascribed to the tribunal by the legislature: id, at 339. See further Miller, 53.

36

This subject is dealt with in a special chapter on tribunals: see Chapter 9 below.

37

[1901] 2 IR 569, at 579. In AG v Kelly, [1928] IR 308, at 327 (High Ct), Hanna, J quoted this passage with approval. See also Ex parte Tanner MP, Judgments of the Superior Court in Ireland in cases under the Criminal Law and Procedure (Ir) Act 1887, 340, at 360–361 (per Palles, LCB).

38

A tentative analogy may here be drawn with the position before the enactment of section 19 of the Defamation Act 1961: cf McMahon & Binchy, 616–617.

39

12 Comm LR 280, at 285. (High Ct of Austr, 1911).

40

[1893] AC 138.

41

[1982] 2 AC 297.



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of corruption did not affect the judge in his official capacity.42

2. The risk of prejudice to the administration of justice

The courts have not spoken with one voice on the question of how great the risk of prejudice to the administration of justice must be established before the offence of scandalising is committed. Since the rationale of punishing scandalising is that it may involve such prejudice, rather than that it is merely unpleasant for a court or judge to experience, the question is one of direct relevance.

A number of courts have favoured a general, unspecific formula of a tendency to bring the administration of justice into disrepute. Here, the court enquires whether or not the impugned conduct amounts to scandalising, which it defines as conduct having such a tendency.43 A narrower view was favoured in Solicitor-General v Radio Avon Ltd,44 where the New Zealand Court of Appeal required proof beyond reasonable doubt that there is a real risk that public confidence in the administration will be undermined. In relation to the approach there favoured, Borrie & Lowe45 comment:

“This seems a reasonable standpoint in principle and probably underlines what in practice the courts in various jurisdictions had already acted upon. Assuming the need for a real risk it would seem a minimum requirement that the publication has a wide circulation at any rate in the area where it is claimed that public confidence is impaired. For example, a specialist journal read by a few can hardly be said to be likely to create a real risk of undermining public confidence in the administration of justice.46 Perhaps the risks are


42

The observations of Miller, 369, are worth recording:

“Although this is a logical development of the rule that the law of contempt applies only in relation to bodies which exercise the judicial power of the State, the limit is in a sense artificial. Judges are invited to chair sensitive political inquiries precisely because of their reputation for impartiality and the general public is unlikely to assume that the accusation or abuse relates to the judge qua commissioner alone. None the less it is right that the criminal law should not be extended by the courts especially in what is at best a sensitive area of the law of contempt.”

43

Cf Re Kennedy and McCann, [1976] IR 382 (Sup Ct).

44

[1978] INZLR 225, at 233–234. Cf Weeland v Radio Telefis Eireann, [1987] IR 662, at 666, (High Ct), where Carroll J articulated two different tests: the first required that the criticism should actually bring the administration of justice into disrepute; the second (more conventional) test was that of criticism “done in a manner calculated to bring the court or judge into contempt” (emphasis added).

45

Borrie & Lowe, 228 (footnote references omitted).

46

Sed quaere. A scandalising assault on the judiciary in a specialist legal journal, for example, could, in some instances, have a more damaging effect than when widely disseminated through other sources, since, precisely on account of the particular publication's prestige, greater regard might be given to the views expressed therein. Cf S v Van Niekerk, 1970 (3) SA 655(T).



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greater where publicised attacks are made on courts of judges serving in small communities and especially where the publisher is an influential and respected member of society. That is not to say, however, that in England, for example, the mass media can publish attacks with impunity on the basis that national confidence in the judiciary cannot be undermined. In the past prosecutions have succeeded against such publications and in principle can still do so.”

3. Mode of publication

Scandalising a court may be accomplished by any mode of publication. Obviously, an article, report, comment, or letter in a newspaper47 or on television48 or radio will suffice; but so also a person may scandalise through a written communication,49 or speech50 or other more restricted verbal communication, or by words or a poster51 or by a cartoon.52

Borrie & Lowe, having observed that scandalising a court is not confined to any medium, go on to state:

“This is not to say, however, that the medium of publication is never relevant. For example, it may be relevant that comment is published in satirical or humorous magazines or television or radio programmes. It could be argued that since the magazine or programme is meant to be humorous, most information can be taken with a pinch of salt and so could hardly be said to undermine public confidence in the administration of justice.”53

While in some cases this is no doubt the case, it would of course be quite wrong to conclude that a magazine or programme, merely by characterising itself as satirical, in any sense acquires an immunity from prosecution.

The potential range of publication, and the circumstances and qualities of the persons to whom the publication is directed, are not irrelevant factors. In In re Hibernia National Review Ltd,54 discussed in detail below, a student55 had


47

In most of the Irish cases the impugned conduct was by these methods: see, e.g., The State (DPP) v Walsh, supra (news report and press release), Re Kennedy and McCann, supra (article in Sunday newspaper), Re Hibernia National Review Ltd, supra (letters prohibited in fortnightly review) AG v Connolly, supra (editorial in newspaper), AG v O'Ryan and Boyd, [1946] IR 70 (newspaper report of County Council meeting at which a letter was read out by its writer), AG v O'Kelly, supra (article in newspaper).

48

Cf Weeland v Radio Telefis Eireann, supra, (allegation of scandalising rejected on facts).

49

AG v O'Ryan and Boyd, supra (letter to judge).

50

AG v O'Ryan and Boyd, supra (letter read out by its writer at County Council meeting).

51

Borrie & Lowe, 228, citing R v Vidal, The Times, 14 October 1982.

52

Re AG v Blomfield, 33 NSLQ 545 (1914).

53

Borrie & Lowe, 229.

54

[1976] IR 388 (Sup Ct).

55

The report does not state expressly that the defendant was a student. It records that he was Chairman of Trinity College Dublin's Student Christian Movement.



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written to Hibernia, a fortnightly review, a letter that scandalised the Special Criminal Court in respect of its handling of the Murrays' trial. Kenny J, for the Supreme Court, observed that this defendant:

“is a young man and the generation to which he belongs frequently hold their views with passion and express them in extreme language. Such views as those in his letter have been, to the knowledge of the Court, expressed at meetings of undergraduates in the two university colleges in Dublin. Their expression at a meeting of undergraduates is a technical contempt but it is a wiser policy to ignore them. It is altogether different when these views are expressed in a newspaper which is printed for sale to adults.”56

The Court made no order against this defendant.

Types of Scandalising

Scandalising a court may consist of a wide range of conduct. The essence of the conduct, as we have seen, is that it tends to undermine public confidence in the administration of justice. The courts have carved a distinction between scurrilous abuse of a judge, jury or court, on the one hand, and imputations of judicial corruption or bias, on the other. While this is helpful, it would be wrong to consider that conduct which is alleged to constitute scandalising would automatically be excused by reason only that it does not fall within either of these categories. It may be suggested tentatively that, as in the case of negligence, the categories of scandalising are not closed.57 Thus, on principle and (admittedly less than coercive) authority, it seems that, provided the administration of justice is imperilled by a communication respecting the courts or any judge, the person may be guilty of contempt. The difficulty from a conceptual standpoint is that the courts have shown little interest in seeking to define the point at which conduct of this nature ceases to be scandalising and falls within some other category of contempt. The issue can seem to be entirely academic but it is not. A practical instance may make this clear. If a newspaper article or television programme utterly misrepresents a court judgment so as to bring the administration of justice into disrepute, it may not be possible to characterise the conduct as either scandalous abuse or imputing corruption, bias or impropriety. Nonetheless it may be considered that such conduct should be punishable as an act of contempt as surely as if it fell within the scope of either of these categories.


56

[1976] IR, at 392.

57

See Miller, 375, Borrie & Lowe, R v United Fisherman & Allied Workers Union, 65 DLR (2d) 579 (BCCA, 1968).



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(i) Scurrilous Abuse

There are plenty of examples of scurrilous abuse in the law reports. The leading British decision is Gray,58 where, in response to a warning by Darling J during a trial that he would “make it his business” to see that the law was enforced if the local Press published details of an obscene matter he was trying, the editor of a newspaper, stung by what it considered to be a gratuitous threat, published an article critical of the judge which stated:

“The terrors of Mr Justice Darling will not trouble the Birmingham reporters very much. No newspaper can exist except upon its merits, a condition from which the Bench, happily for Mr Justice Darling, is exempt. There is not a journalist in Birmingham who has anything to learn from the impudent little man in horsehair, a microcosm of conceit and empty headedness, who admonished the Press yesterday.”

In the Divisional Court, before which the editor did not seek to justify his remarks, Lord Russell CJ described the article as “personal scurrilous abuse of a judge as a judge”.59

In AG v O'Ryan and Boyd,60 the first defendant's conduct amounted to scurrilous abuse, as well as a scandalous imputation of impropriety. Judge Sealy had sentenced some farmers to imprisonment after they had pleaded guilty to riot, in an incident arising out of an agrarian dispute. He had not been moved by a plea for leniency from the parish priest of the parish where the defendants lived. Judge Sealy had asked counsel if the parish priest expected that men who had attacked an individual outside his own church should get no punishment.

The first defendant, a county councillor, wrote a letter to Judge Sealy in the following terms.

“As an humble member of the Catholic community of the diocese of Waterford and Lismore, I take exception to your taunt and sneer at the Most Venerable Dean Byrne, PP of Sts. Peter's and Paul's Church, Clonmel, from your exalted? perch on the Bench of the Court in Waterford last Monday, 5th inst. – that he thought and expected that crime perpetrated outside his church should be exonerated. I fling that taunt back into the face of the worthy representative of the seed and breed of Cromwell. You, Sir, were foisted on the judicial Bench at a time when legal ability was not the qualification best fitting to lead to it. To the foreign, hostile administration of that time there were better


58

Supra.

59

[1900] 2 QB, at 40. See also McLeod v St Aubyn, supra.

60

[1946] IR 70 (High Ct, Maguire, P, Gavan Duffy and Haugh, JJ, 1945). See also AG v Kelly, [1928] IR 308 (High Ct, Sullivan, P, Meredith and Hanna, JJ). (Judge “abused in insulting language” (per Hanna, J, at 330)).



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qualifications evidently well known to your Lordship. I well remember, in the Spring of 1917, when acting as advocate for Lord Ashtown in a claim for compensation for the burning of his wood, you stated that perhaps it was done to celebrate the anniversary of Easter Week, 1916, although all in the district knew that the burning was accidental. The late Judge, Sergeant Ronan, presiding, indignantly protested against your insinuation, and compelled you to withdraw it. Your suggestion offended his impartial judicial mind. But evidently you had other motives. An adventurous lawyer takes the long view. Evidently the echo of your words reached Dublin Castle, of infamous memory. At any rate you were elevated to the Bench by the Lord French –cum Hamar-Greenwood regime– to administer 'true British Amelioration' in Ireland. You remember how the IRA chased you off the Bench at Clonmel. Notwithstanding all that you were tolerated and retained by an Executive Irish Government predominantly national and Catholic. And your return for all that was to taunt the second highest dignitary in the Diocese of Waterford and Lismore that he would condone crime which was committed outside his church. You are as poor at marshalling your facts as you were mediocre at law. It was not outside Dean Byrne's church that the regretted affair took place, but at Nire church, some fourteen miles away. But you would overlook all this to give us a display of Righteous Wrathful Puritanism, symbolic of the virtues of Henry the Eighth and the chaste? Virgin Queen. I wonder if, instead of coming from Dean Byrne, the letter came from the local lodge of the Grand Orient and embossed with the Square and Compass how would it be treated by Your Lordship? I know personally that Dean Byrne did not approve or condone the incident in question. He condemned it in no undoubtful terms. But as peace has been restored to the district he would purchase the continuation of that peace even though the price to be paid would be the forgiving of offences against the law of the land. That is the teaching of the Divine and Eternal Church in which Dean Byrne is an outstanding ornament. Your ilk and breed in this country are the inheritors of lands, castles and wealth secured by the brute laws of robbery, spoliation and confiscation of the property of Catholic Ireland. Would your Lordship wish to have them judged by the law of 'a tooth for a tooth', or by the charitable laws of God's Church as represented by Dean Byrne?

I had intended answering you personally in Court, but I had other and more pressing calls. My actions would doubtless have incurred your puritanical wrath and made me suffer for contempt of Court. To those who know me, this would mean little to me. I would defy your best or worst. My words would then reach the public. Now they will not. You can say with truth that my action is an innocent, private letter. The press will not, cannot, publish it. With your consent that can be done. I issue the challenge to you. I hope you will accept it and not funk the issue as is characteristic of your ilk when confronted with strong public feeling. I will be prepared to express my opinion in your



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Court anywhere and abide the issue. Now, Sir, as between your humble servant and your Lordship the issue is knit.

I remain,

Sincerely yours,

MICHAEL O'RYAN, P.C.

County Councillor.”

A fortnight later he read out this letter at a County Council meeting at which a motion protesting at the “insulting remarks” of Judge Sealy against the parish priest was passed unanimously, and which expressed the Councillors' view that a full withdrawal of these remarks, together with a suitable apology, was “strongly called for”. At that meeting, the first defendant referred to the Judge's “taunting sneer” directed towards the Parish Priest. He “hurl[ed] that back in Judge Sealy's face ...”

The High Court held unanimously that the first defendant was guilty of contempt.61 Maguire P stated:

“That wild and whirling words were used by O'Ryan could not be gainsaid. The question is whether they amount to contempt of Court. References were made to the Judge's history and to the manner of his promotion to the Bench. It needs no familiarity with the recent history of this country to know that the statements in this letter would at one time have roused very high feelings indeed and excited hatred of the Judge. Even after many years they are calculated to some feelings of distrust and dislike of the Judge.

“Dealing with the events which prompted the writer to write the letter there are passages which are even more serious, suggesting that the Judge went out of his way to insult a highly-placed dignitary of the Catholic Church. The letter went on to say that the behaviour of the Judge might have been different if the representations had come, not from Dean Byrne, but from a Masonic Lodge. Now, it is unnecessary for me to point out how offensive such a statement was and how the suggestion, that the Judge could be so swayed, was calculated to injure him and his Court in the eyes of the public”.62

Maguire P went on to express the view that the punishment inflicted by Judge Sealy had been, “if anything, too lenient”.63 He was satisfied that the first defendant's action in writing the letter had been prompted “rather by his


61

The first defendant made no attempt to argue that his conduct did not constitute contempt: [1946] IR, at 78.

62

Id, at 79–80.

63

Id, at 80.



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desire to identify himself with the agitators than to protect Dean Byrne from insult”.64 In writing the letter and “thus publishing it”,65 he had scandalised the Court.

Gavan Duffy J, referring to the first defendant's letter to Judge Sealy, observed:

“The language and matter of this monstrous ebullition suggest that Mr O'Ryan was afflicted with a frenzied indignation, which he could not contain; and he had the courage to sign his name. But the attack is so disproportionate to the Judge's supposed offence that there must have been another reason, unavowed, for the interference of the effusions. I think the outburst was really due to the sentences of imprisonment, and that the allegation of a 'taunt and sneer' was a pretext for assailing the Judge.”66

As to the events at the County Council meeting, he observed that:

“No faintest protest appears to have been voiced against the resolution, which was passed unanimously. It is therefore impossible to treat the letter as the irresponsible ranting of an exalté; it came from a man who had the ear of the County Council67 .... One is appalled at the malice and at the bigotry displayed by the writer, a public representative and an officer of justice,68 who aggravated the gross impropriety of his letter to the Judge by giving all the publicity he could at a public meeting to a scandalous attack on the administration and administrator of justice in the City and County of Waterford ...”69

Gavan Duffy J went on to refer to the religious dimension:

“In my opinion, this particular contempt of Court is greater and even more reprehensible in Ireland than it might be in many other countries. A very large proportion of our citizens reveres religion profoundly and an attack on religion is fiercely resented. There is no excuse for a man of influence who works upon the zeal and piety of a Catholic community, like the people of Waterford, by stirring up public feeling against the Judge of the area, who is not a Catholic, on the pretext that he has degraded his office by behaving in Court as a sectary and partisan. On the facts Judge Sealy had done nothing to provoke the


64

Id, at 81.

65

I.e., at the County Council meeting.

66

Id, at 84.

67

Gavan Duffy, J noted (id, at 84) that the Waterford County council had “had the grace subsequently to rescind that resolution, but the pity is that it was ever proposed”. He also was 'Very glad, indeed” that Dean Byrne, in a published letter, had repudiated the notion that he had been insulted (Id, at 85).

68

As his letter to Judge Sealy stated, Mr O'Ryan was a Peace Commissioner.

69

Id, at 84–85.



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ribald letter, and its publication by O'Ryan at the quarterly meeting of the County Council held up his administration of justice to public obloquy.”70

As had been mentioned, one may scandalise a jury through scurrilous abuse. In Re Nicol,71 Clyne J, of the British Columbia Supreme Court, so held.

(ii) Imputation of Corruption, Bias or Impropriety

Several reported cases have involved imputations of corruption, bias or impropriety against a court of judge. We have already discussed the decision in AG v O'Ryan and Boyd72 where the contempt consisted of both scurrilous abuse and imputations of this general nature. An important English decision involving a more discreetly worded attack on a judge in New Statesman (Editor), ex p DPP,73 where the defendant suggested that Avory J, who was a Catholic, had allowed his religious beliefs to prejudice his summing up in a libel trial brought by Dr Marie Stopes, an advocate of contraception and abortion. The offending article had concluded by stating:

“The serious point in this case ... is that an individual owning such views as those of Dr Stopes cannot apparently hope for a fair hearing in a Court presided over by Mr Justice Avory – and there are so many Avorys.”

Holding that this was contempt, Lord Hewart CJ is reported as having stated that the article:

“imputed unfairness and lack of impartiality to a Judge in the discharge of his judicial duties. The gravamen of the offence was that by lowering his authority it interfered with the performance of his judicial duties.”74

These cases involved imputations of impropriety against a judge; but, as has been mentioned, such imputations made against a court can also amount to contempt, as several Irish cases have held. Many relate to the constitution or practice of special criminal courts acting in a political environment where politically-inspired conduct in the context of Anglo-Irish relations was the subject of prosecution.

In AG v Connolly75 the defendant, the 19 year old writer of an editorial in a


70

Id, at 85.

71

[1954] 3 DLR 690 (B C Sup Ct, Clyne, J). See also White, 1 Camp 359 n, 170 ER 985 (1808).

72

Supra.

73

44 Times LR 301 (1928).

74

Id, at 303. See also Re Duncan, 11 DLR (2d) 616 (Sup Ct Can, 1958), Re Borowski, 19 DLR (3d) 537 (Man QB, Nitikman, J, 1971), AG for New South Wales v Mundey, [1972] 2 NSWLR 887 (Sup Ct), S v Van Niekerk, [1970] 3 SA 655 (T).

75

[1947] IR 213 (High Ct; Gavan Duffy P, Maguire and Davitt, JJ).



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Sinn Fein publication, made the following criticism therein, regarding the possible fate of Henry White, who was subsequently convicted by the Special Criminal Court of the murder of a member of the Garda Siochana:

“Another soldier of Ireland has fallen into the hands of the Republic's enemies and is fast approaching his martyrdom. This much is certain if the present course of Fianna Fail justice is allowed to take its way. Henry White has been handed over by the Black Police of the North to their equally shaded brokers of the south and now he awaits his death, which sentence will inevitably be passed on him, after his mockery of a trial before the Special Criminal Court is over.”

The Attorney General sought his attachment by the High Court for contempt of Court in scandalising the Special Criminal Court and in publishing words calculated to interfere with the administration of justice. The defendant in his affidavit submitted that he had not been guilty of contempt and that the words used were fair comment on a matter of public interest. He also “alleged a number of facts relative to his state of mind at the time of the preparation”76 of the offending piece, and referred to two earlier trials by the Special Criminal Court, as well as ma[king] allegations concerning the appointment and qualifications of the members of that Court and the manner of applying justice in that Court”.77

Gavan Duffy P, delivering the judgment of the High Court, held that the High Court had power to deal with the contempt of the Special Criminal Court by the summary procedure of attachment:

“ ... the administration of justice is entitled to look to the High Court for vigorous protection, once the necessary conditions are fulfilled. And they are clearly fulfilled in a case of public scandal, where the defendant has held up the judges in a capital trial to the odium of the people as actors playing a sinister part in a caricature of justice.”78

The Court's consideration of the issues of mens rea and justification is analysed below.

In Re Hibernia National Review Ltd,79Hibernia, published letters on the subject of the conviction of Noel and Marie Murray for the capital murder of a Garda. The first letter was signed by Simon O'Donoghue, Chairman of Trinity College Dublin – Student Christian Movement; the second was by Mr Henry, PRO of the Murray Defence Committee. Mr O'Donoghue's letter contained the following passage:


76

Id, at 214.

77

Id.

78

Id, at 220.

79

[1976] IR 388 (Sup Ct).



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“While we must regret the death by violence of Garda Michael Reynolds, as of any human being, we feel we must give the strongest possible protest at the manner in which the 'trial' of Noel and Marie Murray was carried out ... They were tried without jury and virtually without evidence in circumstances which, to say the very least, cast strong doubt on the machinations of both Gardai and Government in their efforts to procure a 'guilty' verdict. It is not enough that, following the appeal, the sentence be commuted to life imprisonment in a grand vote-catching gesture by the Government; they must be granted an immediate re-trial ...”

In Mr Henry's letter, the following passage appears:

“The very existence of the Special Criminal Court confers on its defendants a special status. The implication seems to be that people who are brought before it are somehow less innocent than those who appear before the ordinary criminal courts. In fact, many defendants are presumed guilty until they can prove their innocence against the belief of the Gardai. In the ordinary course of events this mixture of special justice and bias towards the police is a reversal of justice ... The only evidence against the Murrays were statements which they claim were extracted by the Gardai under physical and mental torture. Indeed Noel Murray offered to testify to the truth of his claim on oath but was turned down on a legal technicality ...”

The Director of Public Prosecutions sought a conditional order of attachment in the High Court against Hibernia, its editor and the two letter-writers. The President of the High Court refused the application and the Director of Public Prosecutions successfully appealed to the Supreme Court.

Kenny J, giving the judgment of the Court, quoted the passages from the two letters set out above and commented:

“These passages and the use of inverted commas in connection with the word 'trial' mean that the members of the Special Criminal Court conducted a travesty of a trial, that they did not give the benefit of the doubt to the accused, that they were involved in an effort by the Government and the Gardai to procure a false verdict of guilty, and that the only evidence against the accused was their own statements. The members of the Special Criminal Court who conducted this trial were a retired judge of the High court, a judge of the Circuit Court and a District Justice. The charges made against them by these letters were very grave.”80

Kenny J continued:


80

Id, at 390.



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“The Court wishes to emphasise that criticism of the retention of the death penalty of the Offences Against the State Acts or of any of their provisions, and of the establishment of the Special Criminal Court are not a contempt of court. These are matters which may validly be debated in public even if the comments made are expressed in strong language or are uninformed or foolish.

The two letters in issue impute improper and base motives and bias to the judges of the Special Criminal Court and, accordingly, are capable of being a contempt of court. Contempt of court also includes serious misrepresentation of the proceedings in a court. In Read and Huggonson81 Lord Hardwicke, LC said that 'nothing is more incumbent upon courts of justice than to preserve their proceedings from being misrepresented ...' and this view was approved by some members of the House of Lords in Attorney-General v Times Newspapers Ltd.8283

Kenny J noted that, in the prosecution against the Murrays there had been evidence that a gun had been found in Mr Murray's home and that he had accepted responsibility for it. There had also been evidence that the bullet which killed the Garda was fired from this gun:

“The statements that the only evidence against the Murrays was their statements was a complete misrepresentation of the evidence. The trial was reported at length in the three Dublin daily papers and, if he read the letters, the editor of 'Hibernia' must have known that the statements about the evidence were completely false. Therefore, their publication was capable of being contempt of court.8485

The Murray case generated further important Supreme Court litigation in The State (DPP) v Walsh,86 considered in detail below.87 The defendants, members of an organisation called the Association for Legal Justice, had issued to the press a statement commenting on the Special Criminal Court's trial and conviction of the Murrays. The statement was to the effect that the sentence of death:

“was particularly reprehensible because it was passed by the Special Criminal Court, a court composed of Government-appointed judges having no judicial independence which sat without a jury and which so abused the rules of evidence as to make the court akin to a sentencing tribunal ...”


81

2 Atk 469 (1742).

82

[1974] AC 273.

83

[1976] IR, at 391.

84

Citing R v Evening Standard Co Ltd, [1954] 1 QB 578.

85

[1976] IR, at 391–392.

86

[1981] IR 412 (Sup Ct).

87

In the chapter dealing with the respective roles of judge and jury in criminal contempt cases.



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In the Supreme Court, Henchy J stated:

“The principal impression which this statement was calculated to make on the ordinary reader of the newspaper was that the three judges who constituted the Special Criminal Court were so craven, biased and incompetent or corrupt that they had abused the rules of evidence, to the detriment of the accused, so that they (the judges) were little better than a sentencing tribunal. It would be difficult to conceive of an allegation more calculated to undermine the reputation of the Special Criminal Court as a source of justice. If true, this imputation of judicial misbehaviour would render the three judges in question unfit to hold judicial office of any kind and would cause the Special Criminal Court to be held in the opinion of the public at large to be so debased as to be disqualified from dispensing justice. In short, the facts adduced in this application (to which facts no rebuttal has been offered) constitute a classical example of the crime of scandalising a court.”88

Not all cases have an overt political dimension. In In Re Kennedy and McCann,89 the question as to the scandalising of the court arose in the following circumstances. Kenny J in the High Court made an order under the Guardianship of Infants Act 1964 granting custody of two boys to their father. The mother appealed to the Supreme Court. Litigation between the parties as to custody had gone back several years. All proceedings had been in camera. While the appeal was pending, there appeared in the “Sunday World” a “biased and inaccurate”90 account of the custody proceedings. Mr Kennedy was the editor and Mr McCann the author of the article and a staff journalist of the newspaper. The article was headed: “Tug-of-love children in tennis style battle”.

The father obtained liberty to bring a motion to attach these two persons for contempt. On hearing the motion, the Supreme Court held that they were guilty of contempt.

O'Higgins CJ, delivering the judgment of the Court, stated:

“The article purported to give details of the sorry state of a wrecked marriage, with highly offensive references to the boys' father. It published the names and ages of the two boys with their photograph and a photograph of their mother. It gave an account of the legal proceedings to date and referred to the fact that, following the High Court decision, the case was due to 'come up yet again in the next legal session' in this Court. It was written in what could be described as a 'sob story' style and it clearly was based on the mother's account of what had happened and what the issues were. The article tore away the


88

[1981] IR, at 441–442.

89

[1976] IR 382 (Sup Ct).

90

Id at 383 (statement of facts in the Report).



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shield of privacy which the Courts had erected and exposed the two children to a glare of publicity which can affect very seriously their ordinary lives, companionship at school and their relationship with their parents.

“In addition, the article contained offensive comments on the handling of such cases by Irish courts. It stated that instead of the welfare of the children being regarded as paramount 'it seems that money and the lifestyle it could buy was regarded by the courts as by far the most important consideration, particularly if the lifestyle was to be enjoyed here in Ireland'. This was a gross mis-statement of how the Courts had dealt with the case and suggested that there had been a disregard by the Courts of the mandatory statutory provisions contained in s3 of the Guardianship of Infants Act 1964. The article further carried the direct implication, offensive to all judges and all courts in this country, that justice could not be obtained in Irish courts and that, in this respect, ours was 'a sick society' which was 'hypocritical about motherhood, morality, and the family'.”91

The two defendants, through their counsel, admitted that they were guilty of the contempt alleged and filed affidavits “apologising in a very full manner”92 for what they had done.

O'Higgins CJ said:

“The contempt of one was in writing the article, and of the other in permitting or arranging for its publication. The attitude which they have taken and the apologies which they have tendered to this Court mitigate somewhat the gravity of the offence. However, the offence remains a very serious one which no court could, or should, ignore.”93

It may be noted that, in his first affidavit, Mr McCann had stated that he had not attended any of the hearings of the custody proceedings and was unaware that there was a prohibition on the disclosure of such proceedings. Mr Kennedy had also stated that he was unaware that there was a prohibition on the disclosure of such proceedings; he also stated that he had been unaware that the attitude taken and the order made in the High Court and Supreme Court in the proceedings had been inaccurately and unfairly represented in the article.

O'Higgins CJ said:

“The right of free speech and the full expression of opinion are valued rights. Their preservation, however, depends on the observance of the


91

Id, at 385–386.

92

Id, at 386.

93

Id.



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acceptable limit that they must not be used to undermine public order or morality or the authority of the State. Contempt of court of this nature carries the exercise of these rights beyond this acceptable limit because it tends to bring the administration of justice into disrepute and to undermine the confidence which the people should have in judges appointed under the Constitution to administer justice in our Courts.”94

Having quoted from Gray's case,95 O'Higgins CJ continued:

“In this instance there has been a contempt of a serious nature. Not only was the article written in breach of an order prohibiting publication but it was a distortion of the facts and was calculated to scandalise the members of this Court who have dealt with or are dealing with this case, for it imputed to them base and unworthy motives which, if substantiated, would render them unfit for their office. Ignorance of the court order is pleaded in mitigation of the prohibited publication. Acceptance of this explanation involves imputing to both offenders a very high degree of unfamiliarity with the care and caution which the Courts exercise in all cases governing children – an imputation which may be conceded in view of the general contents of the article.

“However, no explanation has been offered as to how either of the offenders, the one a journalist and the other an editor, could have felt that they were free to scandalise this Court. The offence of contempt by scandalising the court is committed when, as here, a false publication is made which intentionally or recklessly imputes base or improper motives and conduct to the judge or judges in question. Here the publication bears on its face, if not an intent, at least the stamp of recklessness.

“The result of the offenders' wrong has been to expose the private sorrows of this unhappy family to public gaze and comment and to prejudice the future happiness of the children and to render the operation in this case of the law with regard to infants.

“The aspersions cast on this Court and on the administration of justice in it have not been, and could not be, justified.9 Had the fullest possible apology not been tendered, this Court would have felt compelled to visit on these offenders a substantial sentence of imprisonment both as a punishment and as a deterrent. However, such apology has been given and it would be unjust not to give to it considerable weight.”96


94

Id.

95

Supra.

96

Id, at 387–388.



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“Nevertheless”, continued the Chief Justice:

“punishment there must be for this serious offence. It must not go forth from this Court that a contempt of this nature can be met by an expression of regret and apology.”97

Accordingly, the Court fined Mr McCann £300 with three months in default, and Mr Kennedy twice that sum with twice the length of imprisonment in default.

The Proper Limits of Criticism

The Irish cases which we have mentioned here (save for O'Kelly,98 which we consider in detail below) did not raise, as a serious question, the proper limits of criticism of judicial performance. We must now attempt to outline these limits. In doing so, we must consider several notions, the underlying rationales of which tend to overlap. These are: (i) the notion of legitimate criticism; (ii) the mens rea element; (iii) the defence of justification; (iv) the defence of public benefit; and (v) the defence of fair comment. While courts have at different times addressed one or more of these notions, they have not sought to analyse them in conjunction or to examine whether they might, with benefit to conceptual clarity be merged into a single concept. There is therefore something artificial, and potentially damaging to clear thought, in analysing each of the five concepts seriatim; nonetheless, since this reflects judicial practice, it seems best to adopt this course before attempting a synthesis.

(i) The notion of legitimate criticism

The best starting-point for analysing the notion of legitimate criticism is Lord Atkin's statement in Ambard v Attorney-General for Trinidad and Tobago:–

“But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or in public, the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are generally exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”99


97

Id, at 388.

98

Supra.

99

[1936] AC 322, at 335.



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This passage would appear to mean that criticism, even though “wrongheaded”, should not constitute contempt, provided the speaker neither acts with malice nor attempts to impair the administration of justice, and provided that he or she does not impute improper motives to those taking part in the administration of justice.

The passage was quoted in its entirety by Kenny J, in Re Hibernia National Review Ltd100 with apparent approval. In contrast, in AG v Connolly,101 Gavan Duffy P quoted the passage but excluded from it (though indicating that a section of the passage had been left out) Lord Atkin's proviso that members of the public “abstain from imputing improper motives to those taking part in the administration of justice”. This exclusion is difficult to understand unless it suggests that Gavan Duffy P was anxious to ensure that such imputations should not be placed outside the pale of permissible comment.102

In this context it may be useful to examine the High Court decision of Weeland v Radio Telefis Eireann.103 There the plaintiff, who had been the successful defendant in a Circuit Court Action which was the subject matter of a television programme produced by the defendants, sought an interlocutory injunction against its further broadcasting pending the determination of the High Court appeal. The issue in the action had concerned the sale of a site by Mr Weeland to Dutch purchasers. The site was at the top of the mountain. The purchasers claimed in the action that they had visited a site at the bottom of the mountain. In a reserved judgment the Circuit Judge had reviewed the evidence relating to the visits by the purchasers to the site. From photographs taken by them in the interior of the mountains, he held that they established that the purchasers' evidence that they had never been on the higher land was wrong.

The programme broadcast by RTE started with a statement of facts and identified as central to the court issue the questions whether the purchasers had been shown the lower land or the higher land and how they had entered the land.

In an interview with one of the witnesses who had given evidence in the Circuit Court, the witness gave his opinion that there was no way in which one could build on the high land or how it could be divided into six or twelve sites for building; he opined that no one would pay the kind of money the


100

Supra.

101

Supra.

102

The proviso may perhaps be traced to III Commentaries, 361, where Blackstone states that “the law will not suppose the possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority depends upon that presumption and idea”. No trace of the proviso appears in the English Court of Appeal's judgment in Metropolitan Police Commissioner; ex p Blackburn, [1968] 2 QB 150, but, as Miller, 382–383, counsels, “perhaps too much significance should not be attached to this since Quintin Hogg's article did not contain any such imputation”.

103

[1987] IR 662 (High Ct, Carroll, J).



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purchasers had paid. The programme failed to mention a lapsed planning permission for the site which the Circuit Judge had mentioned in his judgment. The programme also contained an assertion from a Dutch witness that the purchasers had visited the lower land and not the mountain.

The programme went on to set out the defence offered by the plaintiff in the Circuit Court that he had shown the upper mountain land and not the lower land. It referred only to the end of the Circuit Judge's judgment, when he had observed that the onus of proving fraud was a heavy burden on the purchasers and that they had not discharged it. “There was no attempt to deal, however briefly, with [the Circuit Judge]'s analysis of the evidence, the view he took and the weight he attached to certain items of evidence in reaching his verdict.”104

The plaintiff's application for an injunction was based on several grounds, the most convincing of which related to the possibility of influencing prospective witnesses in the appeal. One of the grounds, however, was in essence that the programme amounted to a scandalising of the court. We need not here consider whether the plaintiff had locus standi to make such an argument, though it is worth noting that Carroll J made no reference to this aspect of the case. Instead, she disposed of the plaintiff's application in an analysis which merged the plaintiffs' arguments in a way which is somewhat difficult to unravel. She stated:

“There is undoubtedly a balance to be found between freedom of expression and contempt of court. In In Re Kennedy and McCann.105 Chief Justice O'Higgins distinguished between contempt of court and reasonable criticism. Freedom of expression which goes beyond acceptable limits is criticism which brings the administration of justice into disrepute and undermines the confidence which people should have in judges appointed under the Constitution to administer justice in the courts.

But did the programme go beyond acceptable limits? The programme failed to advert at all to the reasons given by [the Circuit Judge] for the view he took of the evidence and would not appear to be unbiased in that respect. But to allege that a High Court Judge would be influenced by a T.V. programme which was transmitted months before, rather than by the evidence given in court, I find to be unbelievable. The person producing the programmes did not agree with the judgment but there is no suggestion that [the Circuit Judge] acted from improper motives or anything of that nature.

I do not see why a judgment cannot be criticised, provided it is not done in a manner calculated to bring the court or the judge into


104

Id, at 665.

105

[1976] IR 382.



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contempt. If that element is not present there is no reason why judgments should not be criticised. Nor does the criticism have to be confined to scholarly articles in legal journals. The mass media are entitled to have their say as well. The public take a great interest in court cases and it is only natural that discussion should concentrate on the result of cases. So criticism which does not subvert justice should be allowed. Even though this programme was, in my opinion, unbalanced in relation to the judgment of [the Circuit Judge] it did not pass over the boundary of acceptable limits. I do not believe that any of the criticisms or allegations by the plaintiff concerning contempt of the court or of [the Circuit Judge] amount to contempt of court.”106

This analysis raises some questions. First, although Carroll J more than once refers to the right to criticise, the present case, so far as her judgment indicates, did not involve overt criticism by RTE of the Circuit Judge's judgment but rather a misrepresentation of it. The absence of any attempt to deal, however briefly, with the Circuit Judge's analysis of the evidence, the view he took and the weight he attached to certain items of evidence in reaching his verdict, and the “not unbiased”107 failure to advert at all to the reasons given by the Circuit Judge for the view he took of the evidence surely led, or risked leading, the viewer to a lack of understanding as to how the judge could conceivably have found in favour of Mr Weeland, in the face of the witnesses' evidence, unless it was by virtue of the heavy onus in proving fraud – the only aspect of the Circuit Judge's judgment to which reference was made.

Weeland v RTE thus seems not to be a case involving legitimate criticism at all, but rather one of misrepresentation, through omission and selective quotation, of the judgment of the Circuit Judge. Precisely why that misrepresentation did not amount to contempt is not clear. All that can be derived from Carroll J's analysis is that the programme's “unbalanced”108 treatment of the judgment “did not pass over the boundary of acceptable limits.”109

(ii) The mens rea element

There is some disagreement internationally as to whether a mens rea requirement features in the offence of scandalising. The famous South African decision of S v Van Niekerk110 held that it does. There a law teacher published an article111 in the South African Law Journal on the theme of capital punishment. The article included a questionnaire circulated among the


106

Id, at 666.

107

Id.

108

Id.

109

Id.

110

1970 (3) SA 655 (T), analysed by Milton, A Cloistered Virtue?, 87 S Afr LJ 424 (1970).

111

“... Hanged by the Neck Until You Are Dead”, 86 S Afr LJ 457 (1969), 87 S Afr LJ 60 (1970).



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judiciary and practising lawyers relating to the possible influence of racial considerations in relation to the death penalty. One of the questions asked the subjects whether they thought that the differentiation shown to the different races as regards the death penalty was conscious and deliberate. The response was:



Abolitionists: Yes 18; No 14; Uncertain 14.



Retentionists: Yes 6; No 12; Uncertain 2.



Doubtfuls: Yes 8; No 2; Uncertain 2.

Commenting on the replies to this and an earlier question, the author wrote:

“Whatever conclusion one may draw from the[m], the fact which emerges undeniably is that a considerable number of replying advocates, almost 50 per cent in fact, believe that justice as regards capital punishment is meted out on a differential basis to the different races, and that 41 per cent who so believe are also of the opinion that such differentiation is 'conscious and deliberate'.”

In proceedings for contempt brought against the author on the basis primarily of this statement, Claasen J held that it might well have amounted to contempt, from an objective standpoint, but that a subjective test of mens rea should be applied, under which the author was relieved of liability:

“[B]efore a conviction can result the act complained of must not only be wilful and calculated to bring into contempt but must also be made with the intention of bringing the judges in their judicial capacity into contempt or casting suspicion on the administration of justice. For this type of intention it is sufficient if the accused subjectively foresaw the possibility of his act being in contempt of court and was reckless as to the result.”112

Decisions in England,113 Australia,114 New Zealand115 and Canada,116 however, all dispense with a mens rea requirement as to the effect or likely effect of the publication on the administration of justice.

In Ireland the judicial authorities are divided. In the High Court decision of AG v O'Kelly,117 the majority118 appeared to dispense with a mens rea requirement, while Meredith J, dissenting, appeared, on one interpretation, to


112

1970 (3) SA, at 657.

113

New Statesman (Editor), ex p DPP, 44 Times LR 301, at 303 (1928).

114

AG for New South Wales v Mundey, [1972] 2 NSWLR 887, at 911–912.

115

AG v Butler, [1953] NZLR 944, at 948.

116

Reg v Murphy, 4 DLR (3d) 289, at 294 (NB Sup Ct, App Div, per Bridges, CJNB, (1969) (citing R v Dolan, [1909] 2 Ir 260, at 284 (per Palles, CB), in support). See also Re Borowski, 19 DLR (3d) 537, at 546 (Man QB, Nitikman, J, 1971).

117

[1928] IR 308 (High Ct, Sullivan, P, Meredith and Hanna, JJ).

118

Sullivan, P and Hanna, J.



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apply such a test, since he said of the criticism made of a judge by the defendant:

“To my mind, the writer was absolutely entitled to put forward that contention, and to put it forward in the most forcible language, and I am satisfied that the contention was put forward bona fide, and with full conviction as to its soundness. Now, if that is so, it seems to me impossible to hold that it is contempt of Court to criticise and describe the comments of the Judge from the point of view of the contention. No doubt, scandalous epithets must not be used; but the Court should not be over-critical to discover contempt in language which attempts to assert, even with some heat and vehemence, what the writer honestly believes to be a legal right.

“I know of no case in the books in which the language used in such a case has been minutely parsed, or in which a writer has been forced to apologise merely because certain expressions exceed the limits of good taste. If the writer here was entitled to contend, even though he may have been wrong, that the learned Judge was not entitled to make the comments which he did make, then for the writer to describe the comments as 'Judge's insolence to jurors' is to my mind bad taste, but emphatically not contempt of Court.”119

In AG v Connolly,120 the facts of which have already been considered, Gavan Duffy P observed that it was not “any defence in law”121 for the defendant to say that he had intended nothing wrong; “his article was unquestionably calculated to produce a public mischief and a grave one”.122

Gavan Duffy P's approach to the question of mens rea appears to require no more than that the publication was likely to result in a “public mischief”: it may be presumed that this is the sense in which the phrase “calculated to produce” is used. The fact that the defendant “intended nothing wrong” offered him no excuse. Another possible, but less likely, interpretation of Gavan Duffy P's remarks, in view of the ambiguity of the concept of intending nothing wrong, is that the mere fact that the defendant would not, or did not, characterise the effects of his conduct as wrongful would not afford an excuse where the defendant was aware of the probably factual consequences of his conduct and those foreseen consequences constituted “a public mischief”.

In Re Hibernia National Review Ltd,123 the facts of which have already been considered, Kenny J, delivering the judgment of the Supreme Court, noted that the Murrays' trial had been reported at length in the three Dublin Daily


119

[1928] IR, at 322–323.

120

[1947] IR 213 (High Ct, Gavan Duffy, P, Maguire and Davitt, JJ).

121

Id, at 221.

122

Id.

123

[1976] IR 388, at 391–392 (Sup Ct).



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papers “and, if he read the letters, the editor of Hibernia must have known that the statements about the evidence were completely false. Therefore, their publication was capable of being a contempt of court”.124 This observation appears to impose the standard of due care in publishing, rather than that of bona fides.

In In Re Kennedy and McCann,125 also considered already, ignorance of the existence of a court order prohibiting publication was pleaded in mitigation rather than as an absolute defence. O'Higgins CJ, as we have seen, responded caustically:

“Acceptance of this explanation involves the imputing to both offenders a very high degree of unfamiliarity with the care and caution which the Courts exercise in all cases governing children – an imputation which may be conceded in view of the general contents of the article.

“However, no explanation has been offered as to how either of the offenders, the one a journalist and the other an editor, could have felt that they were free to scandalise this Court. The offence of contempt by scandalising the court is committed when, as here, a false publication is made which intentionally or recklessly imputes base or improper motives and conduct to the judge or judges in question. Here the publication bears on its face, if not an intent, at least the stamp of recklessness.”126

This statement might suggest the application of a mens rea test similar to that applied in S v Van Niekerk.127 It could be argued, however, that it is not identical. The intent to which the Chief Justice refers may perhaps be interpreted, not as an intent to interfere with the administration of justice (as in the Van Niekerk test) but rather merely to impute base or improper motives to the judiciary. On this interpretation, a man who intended to impute such motives would not escape liability, under the Chief Justice's test, by showing that he had no intent to interfere with the administration of justice. Where, however, recklessness is in issue, the Chief Justice's remarks may mean that the the recklessness must relate to the matter of the truth or falsity of the accusation rather than to the question of interfering with the administration of justice.

(iii) Justification

There are judicial authorities,128 of varying strength, throughout the common


124

Citing R v Evening Standard Co Ltd, [1954] 1 QB 578.

125

[1976] IR 382 (Sup Ct).

126

Id, at 387.

127

Supra.

128

Vidal, 14 October 1922, cited by Miller, 381, Solicitor-General v Radio Avon Ltd, [1978] 1 NZLR 225, at 231 (Semble).



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law jurisdictions rejecting the availability of justification as a defence to a charge of scandalising. There are also, however, decisions129 which refer to the unwarranted nature of the defendant's allegations, though, as Miller cautions, they do so “without necessarily suggesting that this is an integral requirement of the offence”.130

In Ireland, the position is clouded. In Re Kennedy and McCann,131 O'Higgins CJ appeared to recognise the existence of the defence when he observed that the aspersions cast “on the Court and on the administration of justice in it” had “not been, and could not be, justified”. This surely means that what had been alleged was simply not true, rather than that the charges challenged the integrity of the administration of justice so radically that no attempt at justification would be entertained, on policy grounds.

In the earlier decisions of AG v Connolly,132 the facts of which have already been considered, Gavan Duffy P, had observed:

“I should be slow to attribute to the defendant, still a minor, more than partial responsibility for the terms of the deplorable affidavit filed in answer on his behalf; he was entitled to rely on his advisers. It appears that, being oppressed by a deep sense of wrong in another trial before the same Court, he convinced himself that the injustice alleged was sure to be repeated in the trial of Henry White; his sincerity may weakly palliate his offence, but the novel attempt to use it as justification for a glaring contempt of court was grotesque.”133

These remarks are capable of being interpreted as rejecting the possibility of a justification ever being capable of being offered for such a serious accusation as was made by the defendant in respect of the Special Criminal Court. Beyond this the analysis is unclear. Three possibilities suggest themselves. The first is that, as a matter of legal principle, the defence of justification should not be admissible where the accusation reaches a certain degree of seriousness because to allow such a defence to be aired would be too damaging to the process of the administration of justice: this might be called a consequentialist rationale. Secondly, the denial of the possibility of a defence of justification in respect of such a serious accusation might be based on the assumption – reaching the status of a conclusive presumption – that our judiciary are simply incapable of seriously wrongful conduct. Such an assumption would, however, be at odds with human nature (as well as the Constitution, which envisages that judges are capable of serious


129

Gallagher v Durack, 45 ALR 53, at 55 (1983), Fletcher, ex p Kisch, 52 Comm LR 248, at 257 (1935), cited by Miller, 381.

130

Miller, 381.

131

[1976] IR 382, at 387 (Sup Ct).

132

[1947] IR 213.

133

Id, at 221.



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misbehaviour134).

A third, and more convincing, interpretation of Gavan Duffy P's remarks on the question of justification is that they are limited to the particular circumstances of the case before the court and that they did not seek to express a principle of general import. The allegation made by the defendant that the Special Criminal Court would engage in a “mockery of a trial” no doubt seemed to the President to be so manifestly incapable of justification that any attempt to do so had to be regarded as making matters worse. If this interpretation is correct, then Connolly's case should be interpreted as no more than a decision on its facts in this context rather than one seeking to address the relevant legal principles.

In The State (DPP) v Walsh,135 the Supreme Court considered the issue of justification. O'Higgins CJ defined the offence of scandalising as involving “wild and baseless” allegations of corruption or malpractice against a court. He noted that the appellants had not disputed that the statement complained of, “if untrue and baseless”,136 amounted to a criminal contempt. Later he observed that if a court were held up to public ridicule and contempt by “baseless allegations of impropriety and corruption”137 then justice could not be administered fairly and effectively. All of these statements suggest that truth was capable of affording up a defence, in the view of the Chief Justice.

The following passage from O'Higgins CJ's judgment is of central significance to the issue of justification. Having referred to the facts of the case, in which there was no dispute that the appellants were responsible for the statement which was subsequently published in The Irish Times, the Chief Justice said:

“What then is to be tried by a jury?

The only other question which could arise is whether what was said could be justified on any conceivable basis. This, however, has already been fully considered and investigated by the Court of Criminal Appeal138 in its careful and extensive review of the trial of the two Murrays. I have already quoted from that court's considered view of the suggestion that there was any such imperfection in the trial. Is it to be suggested that the honour and integrity of the judges who conducted the trial and the validity and justification in law of the decision and verdict of the Court of Criminal Appeal are now to be committed to the judgment of 12 citizens untrained in law? If such a result were required by the provisions of the Constitution, then, in my


134

Cf Article 35.4. See also the Courts of Justice Act 1924, section 39, and the The Courts of Justice (District Court) Act 1946, sections 20–21.

135

[1981] IR at 421.

136

Id, at 422.

137

Id, at 426.

138

[1977] IR 360.



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view, respect for the courts would quickly disappear and the independence of the Judiciary would be a thing of the past.”139

This passage appears to accept that justification is a defence. Beyond this the position is unclear. By reason of the unusual circumstances in Walsh, the Court of Criminal Appeal might (doubtfully140) be considered to have adjudicated already on the issue of justification, and on this account the Chief Justice was clearly reluctant to have the judgment of that Court capable of being “overruled” by a lay jury. But in cases where an appellate court has not adjudicated on the issue the case for denying to the jury the function of determining the issue is less strong.

This raises the question of the extent to which the defence of justification is one of fact or of law, a vital issue in the light of the bifurcation of functions between judge and jury posited in Walsh. The answer is surely that it is a mixed issue of fact and law. At times the central question at stake will be perceived as one of fact; at other times one of law; and still others, one involving a combination of fact and law.

Henchy J's analysis in Walsh also appears to accept that justification affords a defence. In his view, this issue should not be determined by a jury for two reasons. First, the gravamen of the accusation against the Special Criminal Court had been that it had abused the rules of evidence; it “would be the judge and the jury, who would have to rule on that issue of law”.141 Secondly, the Court of Criminal Appeals judgment rendered the issue res judicata.

(iv) Public benefit

In AG v O'Ryan and Boyd142 the High Court had to deal with an unusual argument based on the public benefit. The argument was not that the statements critical of the Judge were true, but rather on the contrary that they were so manifestly false that the publication of them was for the public benefit, in the interests of the Judge, by revealing the unjust circumstances in which a resolution criticising the Judge had been passed at a county council meeting.

The facts of the case have already been considered. We are here dealing with the position of the second defendant, the editor of a local newspaper who authorised the publication of a detailed report of the county council meeting.

The editor stated on affidavit that his attention had first been drawn to the resolution by seeing a very condensed report of it in the Irish Times. He was greatly surprised at such a resolution being passed and at a loss to understand


139

[1981] IR, at 429.

140

Since that Court was addressed a related, but not identical, issue between different parties.

141

[1981] IR, at 442

142

Supra.



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how it had come about. He therefore obtained a copy of the report of the proceedings. He regarded the first defendant's letter as biassed and prejudiced and considered that the resolution had been passed in an atmosphere which was both heated and prejudiced by reason of the reading of the letter.

The editor said that it seemed to him that a report merely stating the fact that the resolution had been passed might leave the public under the false impression that the resolution was justified, whereas, if the letter were also published, the matter would appear in its true light and the public would be able to see the animus clearly present in the mind of the instigator of the resolution. He considered that the very terms of the letter would condemn it in the eyes of the public. He also stated that he was satisfied that Judge Sealy's reputation was so high as a fair and upright Judge that no one would give the slightest credence to the suggestions made against him in the letter, nor would the publication of the letter affect his prestige in the slightest degree. He stated that he had deleted portions of the letter which he knew to be incorrect and that he had printed the letter without comment because it seemed to him to be obviously self-condemnatory.

The editor went on to make what was, in effect, a legal point: that the meeting of the County Council was a statutory one open to the public, and that he believed, at the time he published the report, that the editor of a newspaper was entitled by statute to publish an accurate and fair report of the proceedings of a public body on a matter of public concern and for the public benefit, and that he believed the report in question to be such a report.143

This defence divided the Court. It failed in Maguire P's eyes. The President noted that the editor had claimed to have rendered a public service by publishing the letter. He commented:

“I do not wish to challenge the truthfulness of Mr Boyd, but I confess I do not see how he could have come to such a conclusion. The letter had been read at the County Council meeting. I do not know if there were other speeches but from the account in the newspaper it would seem that the only substantial contribution to the discussion was the letter read by O'Ryan and it appears to have been almost solely responsible for the resolution. Mr Boyd, in my view, should have seen the danger that the letter, when published in his paper, might have the same effect on ordinary readers. The public are, as a whole, less educated than the members of the County Council. It seems to me that the letter was the letter of a man who understood the mentality of the ordinary County Councillor and still more the mentality of the ordinary voter. This attack was, to my mind, designed to excite animosity towards the Judge and to arouse sympathy with the prisoners. In my


143

The editor also expressed his “humblest and sincerest apologies” if, contrary to his intention, he had scandalised the Court: [1946] IR, at 76.



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opinion Mr Boyd was also guilty of contempt of Court.”144

This test is clearly an objective one. It does not apparently deny the existence of the defence of public benefit but requires that it be established according to the standards of the reasonable person rather than on the basis of subjective bona fides.

Maguire P went on to state that, giving Mr Boyd the benefit of any doubt that there was as to his motive in publishing the letter and in view of his attitude in the proceedings, the Court would make no order against him, but it was

“to be clearly understood that we do not accept the proposition that the editor of a newspaper can, in a proceeding of this nature, come in to Court and rely on the Act of 1888. That is not the law. The Act is no protection. An editor is liable equally with anyone else to be punished for contempt of Court.”145

Gavan Duffy J expressed no dissent from the President's statement in relation to the 1888 Act. However, also applying the objective test to the question of public benefit, he was:

“personally of opinion that Mr Boyd rendered a public service to the administration of justice, when he put the letter before his readers, [for] the following reasons:–


(1)


Anybody reading the proceedings without the letter would be much perplexed to discover just what was the insult to the Dean that had caused all the bother, whereas the letter plainly showed the complaint to be that Judge Sealy had charged a distinguished Catholic prelate with condoning crime;


(2)


No sensible person, reading the letter in a calm and detached atmosphere, was at all likely to believe the absurd allegation that Judge Sealy had accused Dean Byrne of condoning crime;


(3)


The reading of the letter would convey some idea of the lurid atmosphere in which that amazing resolution must have been passed; and


(4)


The tenor and temper of the letter would give a revealing picture of the writer to any impartial observer, whatever his religion, and the best immediate antidote to the Council's defamation was the text of the scurrilous letter itself, which nothing could redeem.”146


144

Id, at 81–82.

145

Id, at 82–83.

146

Id, at 86–97.



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He concluded:

“It must never be forgotten to an editor that his task in having to decide, often at short notice, whether or not to publish offensive material concerning a topic of the day, may be arduous and exacting to a high degree, and I should have much sympathy here with Mr Boyd if in the peculiar circumstances he had made an error of judgment; and I should be very slow indeed, to hold that, having no personal interest in the unsavoury episode, he had by a very understandable mistake incurred the penalties of contempt of Court.

The President of this Court proposes that no order be made in this case and I concur in that order.”147

Haugh J's concurrence “with all that has been said”148 makes it impossible to discern the basis on which he was willing that no order should be made against Mr Boyd.

As regards Gavan Duffy J's remarks regarding the position which would have arisen if Mr Boyd had make a mistake, there is some uncertainty. The better interpretation appears to be that a bona fide error of judgment as to the decision to publish should not constitute contempt, when made under the exigencies of pressure of time in a newspaper office. This would amount to a test of reasonableness not dissimilar to the notion of a reasonable error of judgment in medical negligence litigation.149

It must be said that the Court's rejection of the defendant's argument based on section 4 of the 1888 Act was convincing. That Act's Short Title150 and Preamble151 clearly limits its scope to proceedings for libel. Moreover, the Act152 which the 1888 Act repeals did not extend to proceedings in respect of contempt of court.

(v) Fair comment

In the law of defamation, the defence of fair comment affords the basis for a complete exemption from liability.153 It is necessary for the defendant to show:


147

Id, at 87.

148

Id.

149

See McMahon & Binchy, 262–263, Dunne v National Maternity Hospital, [1989] IR 91 (Sup Ct), Daniels v Heskin, [1954] IR 73 (Sup Ct, 1952), Whitehouse v Jordan [1981] 1 All ER 267 (HL (Eng), 1980).

150

The Law of Libel Amendment Act 1888, section 11.

151

“An Act to amend the Law of Libel”.

152

The Newspaper Libel and Registration Act 1881.

153

See McMahon & Binchy, 657–681; Law Reform Commission, Consultation Paper on The Civil Law of Defamation, para 72 ff.



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(i)


that the comment was made on a matter of public interest,


(ii)


that what he said was comment as opposed to fact, and finally


(iii)


that the comment was fair in the sense of being honest.154

There is, however, an important exception to the general rule that honesty is sufficient to establish the defence of fair comment. If the defendant attributes base, corrupt or dishonest motives to the plaintiff then “as well as honesty the defendant must show that the comment was such that it could reasonably be inferred from the facts truly stated”.155

There is no clearly defined equivalent defence in respect of contempt of court but this does not mean of course that a comment which fairly criticises a judge or court will invariably constitute an offence. On the contrary, criticism that is objectively fair should not constitute contempt as it would not be capable of bringing the administration of justice unjustifiably into disrepute.

We have seen, however, that Lord Atkin's classic statement of the law in Ambard v AG for Trinidad and Tobago156 appeared to render imputations of an improper motive on the part of the judge invariably an offence; but, as we have also seen, this qualification has not been clearly endorsed by the Irish courts. It may also be argued that it is not easily reconcilable with principles of justice or sound public policy.


154

McMahon and Binchy, 657.

155

Id, 661, citing Campbell v Spottiswoode, 3 B & S 769, 122 ER 288 (1863) and noting that the rule has been criticised by the Faulks Committee in its Report, para 169 (Cmnd 5909, 1975).

156

[1936] AC 322, at 335. Australian decisions appear to support a defence based, in effect, on fair comment, even where an accusation of bias is involved: see Nicholls, 12 Comm. LR 280 (High Ct of Austr, 1911), and the subsequent cases cited by Miller, 382, fn 85.



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CHAPTER 4: THE SUB JUDICE RULE

Introduction

A “good working definition”1 of contempt by way of publication interfering with particular legal proceedings was provided by the New South Wales Court of Appeal in AG (NSW) v John Fairfax & Sons Ltd2:

“[C]ontempt will be established if a publication has a tendency to interfere with the due administration of justice in the particular proceedings. This tendency is to be determined objectively by reference to the nature of the publication; and it is not relevant for this purpose to determine what the actual effect of the publication upon the proceedings has been, or what it probably will be. If the publication is of a character which might have an effect upon the proceedings, it will have the necessary tendency, unless the possibility of interference is so remote or theoretical that the de minimis principle should be applied.”

There is, moreover, a need to show a real risk, as opposed to a merely remote possibility of prejudice.3

Some Irish courts have preferred a two-stage approach. First the court should ask whether there is a tendency to prejudice the trial. Here “[t]he possible


1

Borrie & Lowe, 60. See Anon, Contempt of Court by Newspapers, 24 ILT & Sol J 323, 337, 351 (1890).

2

[1980] INSWLR 362, at 368, para 21.

3

R v Duffy, ex p Nash, [1960] 12 QB 188, at 200 (per Lord Parker, CJ), AG v Times Newspapers Ltd, [1974] AC 273, at 298 (per Lord Reid), AG (NSW) v John Fairfax & Sons Ltd, [1980] INSWLR 362.



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effect of the language is all that the Court looks to”,4 though the possibility must be real rather than merely fanciful.5 If the publication has this tendency, the Court proceeds to consider whether there is “such a probable interference with the pending trial as to require [it] to make an order against the respondents”.6

Other Irish decisions7 eschew these requirements and apply an unadorned test of whether the publication was “calculated” to interfere with pending proceedings.

Thus, in AG v Cooke,8 the applicants had been arrested one evening in O'Connell Street, Dublin, and charged the following morning in the District Court with the offence of watching and besetting the Carlton Cinema with a view to restraining people from entering it. On the evening of the Court hearing, The Evening Mail contained a report of the case as well as a leading article, headed “A Disgrace and Menace” to the following effect:

“Though the merits of the dispute between the Irish Transport and General Workers' Union of Ireland are the concern of Irish trades unions alone, it is, we suggest, the duty of the Government to take drastic action to ensure that the public is not made to suffer because labour cannot keep its own house in order. Anybody who witnessed the occurrences in O'Connell Street last night must share that belief. The scenes outside the Carlton Cinema were not only a disgrace to the city but a menace to its peace. They might easily have resulted in serious rioting, and it is the plain duty of the authorities to see that there is no repetition of them. The legality of the action of supporters of Mr Larkin to picket premises when no trade dispute exists will, doubtless, be challenged in the proper place. At the moment it is sufficient to know that members of the crowd which gathered outside the Carlton Cinema last night adopted intimidatory methods in order to try to keep people away from the premises. From such treatment the public must be protected, and the Government must immediately provide the necessary protection”.

The applicants contended that this piece was calculated to obstruct the course


4

The King v Dolan, [1907] 2 IR 260, at 269 (KB Div, per Kenny, J), The King v Freeman's Journal, [1902] 2 IR 82, at 87 (KB Div, per Lord O'Brien, CJ, 1901), AG v Hibernia National Review Ltd, unreported, High Ct, Pringle, J, 16 May 1972 (1971–No.18355), at page 13, Hunt v Clarke, 58 LJQB 490.

5

Cf The King v Dolan, [1907] 2 IR, at 270 (per Kenny, J), The King v Freeman's Journal, [1902] 2 IR, at 87, adopting Wright J's statement or legal principle in The Queen v Payne, [1896] 1 QB 577.

6

The King v Dolan, [1907] 2 IR, at 271 (per Kenny, J). See also AG v Hibernia National Review Ltd, supra, at page 15 of Pringle J's judgment.

7

Eg AG v Cooke, 58 ILTR 157 (High Ct, 1924), Keegan v de Burca, [1973] IR 223, at 227 (Sup Ct, per O Dalaigh CJ), Reg v Parnell, 14 Cox CC 474 (QB Div, Ir, 1880).

8

58 ILTR 157 (1924).



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of justice and prevent a fair trial of their case, by prejudging the two questions at issue – whether there was a trade dispute and whether intimidatory methods had been used.

The High Court9 held that the respondents had not committed contempt. Only Sullivan P's judgment addresses the liability issue, and it does so in terms of stating some general, unexceptionable principles and the conclusion, with no linking analysis, that the publication was neither intended10 nor “calculated to interfere”.11 It may be that the fact that the prosecution was being heard by a District Justice rather than a jury affected the Court's determination12 but there is little in the judgments to confirm this.

The Prejudgment Test

In Ag v Times Newspapers Ltd,13 the House of Lords held that a publication in respect of particular proceedings was capable of constituting a contempt, not because of the risk of prejudice in these proceedings but on account of the risk to the administration of justice generally. The case concerned litigation then in progress in regard to the alleged effects of the drug thalidomide. The Sunday Times had proposed to publish an article dealing with the general subject. The House adopted a test of “prejudgment” which was later held to violate Article 10 of the European Convention of Human Rights. Lord Cross's rationale has been widely discussed and criticised:

“It is easy enough to see that any publication which prejudges an issue in pending proceedings ought to be forbidden if there is any real risk that it may influence the tribunal, whether judge, magistrates or jury, or any of those who may be called on to give evidence when the case comes to be heard. But why, it may be said, should such a publication be prohibited when there is no such risk? The reason is that one cannot deal with one particular publication in isolation. A publication prejudging an issue in pending litigation which is itself innocuous enough may provoke replies which are far from innocuous but which, as they are replies, it would seem unfair to restrain. So gradually the public would become habituated to, look forward to, and resent the absence of, preliminary discussions in the 'media' of any case which aroused widespread interest. An absolute rule – though it may seem to be unreasonable if one looks only to the particular case – is necessary in order to prevent a gradual slide towards trial by newspaper or television.”14


9

Sullivan, P O'Shaughnessy and Murnaghan JJ.

10

As will be mentioned, the requirement of the proof of an intention to interfere has usually been rejected in the Irish cases. The idea that intention might be an alternative basis for liability to likelihood (“calculation”) is not common in the decisions.

11

58 ILTR, at 158.

12

Cf Casey, 431.

13

[1974] AC 273.

14

Id, at 322–323.



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Thus far, the Sunday Times case, in its specific ratio, has not been adopted here. It was held, however, to be contrary to Article 10 of the European Convention on Fundamental Rights and Freedoms, in The Sunday Times UK.15 In Ireland, in The State (Walsh) v DPP,16 Henchy J observed that there was a presumption that our law on contempt is in conformity with the Convention, particularly Articles 5 and 10(2). Whether there is merit in this proposition may be debated, but it affords, at the least, a clear indication of a lack of support for the approach favoured by the House of Lords on this question.

CRIMINAL PROCEEDINGS

We must also now consider the application of the general principles we have outlined in the specific context of publications interfering with the course of justice in current criminal proceedings. Borrie & Lowe17 observe that:

“[t]here is perhaps a special vigilance to shield particularly first instance criminal proceedings from such a risk partly because the liberty of an accused might be in issue and partly to protect society's interest that the guilty be convicted and the [innocent] acquitted. But also and importantly it is considered that the tribunal, at any rate when comprising ... jurors, is particularly vulnerable to influence by out of court publicity.”

Moreover, witnesses who are to give evidence of what they experienced may be so affected by a prejudicial publication that the quality of their evidence may be damaged as a result.18

(a) Encouraging partiality

Clearly, publications tending to impair the impartiality of the trial judge, the jury or a witness may constitute contempt. In the Irish case of R v O'Dogherty,19 Pigot CB stated that:

“[o]bservations calculated to excite feelings of hostility towards any individual who is under a charge ... amounts to a contempt of court ...”20

(b) Accused's criminal record or bad character

To publish an accused's past criminal record tends to be a very serious contempt throughout the common law world.21 The courts have sought to


15

[1979] 2 EHRR 245.

16

[1981] IR 412, at 440 (Sup Ct).

17

Borrie & Lowe, 92.

18

See id, 93.

19

5 Cox CC 348 (1848).

20

Id, at 354.

21

See Borrie & Lowe, 96–97.



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protect defendants even against the disclosure that they have pleaded guilty to some charges where they are tried for other charges to which they have pleaded not guilty.22

Publications, not of an accused's previous convictions, but of his bad character, can also be sufficiently prejudicial to amount to contempt.23 To describe a defendant as having had “an unedifying career as brothel-keeper, procurer and property racketeer” was (understandably) held to constitute a serious contempt.24

It is well established that to publish a pre-trial confession -even a true one, freely made – is a serious contempt. As Darling J commented in R v Clarke, ex p Crippen,25“[a]nything more calculated to prejudice the defence could not be imagined”.

It is contempt to publish material commenting, or reflecting, on the merits of the case against a defendant in criminal proceedings. As Borrie & Lowe26 comment:

“Publications which directly or indirectly prejudge the merits of a trial and particularly those which impute the guilt or innocence of the accused are classic examples of 'trial by newspaper'. Such publications obviously have a tendency to prejudice the fair trial of an accused, since they could clearly create bias in the minds of those who actually have to try the case. It is therefore a serious contempt to impute directly or indirectly the guilt or innocence of an accused before he has been tried.”

In Reg v Parnell,27 the Dublin Evening Mail, a “journal which advocates what is known as the landlord interest in Ireland”, was attached for contempt in respect of its comments on the defendants, Charles Stewart Parnell and others, in a trial for conspiracy to induce tenants not to pay rent. The impugned article implied that an acquittal was not to be expected save by a verdict contrary to the evidence and procured by intimidation. May CJ observed, “that is to comment by anticipation upon the evidence that was about to be given, and I think there can be no doubt that that passage as it stands is objectionable”.


22

Id, 96, citing (inter alia) R v Border Television Ltd, ex p AG, 68 Cr App Rep 375 (1978).

23

Id, 98.

24

R v Thomson Newspapers Ltd, ex p AG, [1968] 1 All ER 268.

25

103 LT 636, (1910). See also R v Willis, 9 DLR 646 (1913), Re Ag for Manitoba and Radio 06 Ltd, 70 DLR (3d) 311 (1976), Fairfax's case, supra, R v David Syme & Co Ltd [1982] VR 173, all cited by Borrie & Lowe, 100.

26

Borrie & Lowe, 100. See, e.g., R v Bolam, ex p Haigh, 93 Sol J 220 (1949), R v Odham's Press Ltd, ex p AG, [1957] 1 QB 73, and R v Parnell, 14 Cox CC 474 (1880).

27

Supra.



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(c) Prejudicing jury in favour of accused

It is worth noting that, although the great majority of cases are concerned with comments damaging to the accused, it may also be a contempt to publish material which risks prejudicing the jury in the accused's favour. In Davis v Baillie28 Fullager J said that he regarded publication, while a charge is pending, of matters calculated to arouse sympathy with an accused person as “objectionable in itself”. Borrie & Lowe29 note that “[i]n other Australian decisions there is a hint, however, that it might be harder to establish a real risk of prejudice to the prosecution”.

In AG v Hibernia National Review Ltd,30 Pringle J addressed this question. The Attorney General sought orders of attachment against Hibernia National Review Ltd, Mr John Mulcahy and an tUasal Prionsias Mac Aonghusa arising out of a paragraph in an article appearing in Hibernia, of which an tUasal Mac Aonghusa was author. Mr Mulcahy edited the periodical. The article related to treatment of a prisoner in Mountjoy Gaol. The prisoner was on remand at the time, having been sent for trial to the Central Criminal Court, charged with the murder of a Garda acting in the course of his duty, contrary to common law. He was subsequently acquitted.

The impugned paragraph was as follows:

“Professor Myles Dillon, Professor Con O Cleirigh and the other distinguished citizens who wrote to the press protesting against the jail treatment of Frank Keane are worthy of the greatest respect. This untried and unconvicted fellow-citizen of ours is being systematically tortured in Mountjoy Jail, if the allegations made in court by his counsel, Seamus Sorahan, are correct. It is terrible to find that the District Justice is totally unable to stop the torture. I thought prisoners were in the custody of the courts and not of the Department of Justice. I was wrong. The torture is being carried out on the orders of the Department of Justice and not as a result of any special policy of the Prison authorities, I am told.

Frank Keane is a political prisoner. But even if he were a criminal prisoner it would be outrageous that he should be tortured. So far not one T.D. had queried the Minister for Justice in the Dail about this. Those T.D.s who weep for South African and Russian and United States and Vietnamese and Biafran prisoners are silent. The question to be asked is simple: 'To ask the Minister for Justice if he will make a statement on the conditions under which Frank Keane is held in Mountjoy Jail'. Even a backward deputy might be able to copy that out, and no matter what answer Cicero O'Malley gives the whole ugly story


28

[1946] VLR 486 (Vict Sup Ct).

29

Borrie & Lowe 98, citing Fairfax's case, supra and Consolidated Press Ltd v McRae, 93 CLR 325 (1955).

30

Unreported, High Ct, Pringle, J, 16 May 1972 (1975 – No.18355).



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can be aired.”

The complaints made by Mr Sorohan as to the treatment of his client were threefold: that he was allowed less than the period of exercise normally accorded to remand prisoners, that, contrary to normal practice, he was not allowed to associate with other prisoners on remand, and that, after the normal “lights out” hour of 10.00 p.m., the electric light in his cell was switched on and off at intervals varying from ten minutes to thirty minutes throughout the night. Mr Sorohan had made these complaints to the District Court on four separate occasions. Mr Keane informed him around the time he made these complaints for the fourth time that the switching on and off of the light had been discontinued but that otherwise there was no improvement in his conditions. That these complaints were well founded “appears .... undisputed”.31 They were reported in the newspapers on the first three occasions. On the first occasion, it was reported that Mr Sorohan has said that he was not alleging that his client had been beaten or ill-treated; but he complained about his client's being compelled to attend an identification parade. District Justice Good was reported as having said that he had no control whatever over what happened to a prisoner once he was given back into the hands of the prison authorities.

The letter to which an tUasal Mac Aonghusa referred had been published in the Irish Times. It was signed by Myles Dillon, Conn O Cleirigh, Denis Donoghue, Michael Scott, Maurice MacGonigal RHA, and James Mulcahy, and stated:

“... It has been said in Court that an accused man now on remand, Francis Keane, is being subjected to very harsh treatment amounting almost to torture, in Mountjoy Prison. This man is innocent until he is found guilty and it would be a grave abuse of Justice that he should be so treated. We ask for a public assurance from the Minister for Justice or the Governor of the Prison that the prisoner is receiving the treatment and privileges that are proper for an accused person.”

On behalf of the Attorney General it was argued that, notwithstanding the intention an tUasal Mac Aonghusa might have had in writing the article, it tended to interfere with Mr Keane's pending trial in two respects. First, the statements that torture was being carried out on the orders of the Department of Justice would tend to prejudice the case for the prosecution. Secondly, the statement that Mr Keane was a political prisoner tended to prejudice the trial by misrepresenting the nature of the pending prosecution against him, as being for some offence of a political nature and not for the common law offence of murder, and thus tended to suggest that the prosecution was actuated by political motives. Reliance was placed on the fact that the article referred more than once to 'torture' whereas Mr Sorohan had made no allegation of torture as such and had expressly stated that he was not suggesting that his


31

P11 of Pringle J's judgment.



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client had been beaten or ill-treated; moreover, the letter to the Irish Times had referred to “harsh treatment amounting almost to torture”.

Counsel for all the defendants argued that the allegations made by Mr Sorohan had already been widely publicised in the daily press and that the article was simply another forceful protest against the ill-treatment of a prisoner awaiting trial in an attempt to have something done about it.

Pringle J favoured the two-stage approach adopted by Kenny J in The King v Dolan,32 whereby the Court asks first whether there was any contempt and secondly, if there was, considers whether it was such a contempt as would require or justify the making of an order against the defendant.

In regard to the first of these questions, Pringle J considered that he should ask himself whether the article would “tend or be calculated to”33 affect the mind of a juryman who had read the article and who was impanelled to try Mr Keane.

Pringle J rejected the argument that the allegation of torture amounted to contempt. He thought it necessary to take into account the fact that such a juror might well have already read the statements in the daily papers as to Mr Sorohan's allegations, and already have had some sympathy for the accused; any extra sympathy which might be engendered by reading the references in the article to torture would not be sufficient to constitute such an interference with the course of Justice as to amount to contempt.

Pringle J considered, however, that the statement that Mr Keane was a political prisoner, made by a responsible and well-known journalist who held himself out as knowing the facts, would not only tend to prejudice a potential juror in favour of the accused, or against him, according to the political views of the juror, but would also tend to mislead him as to the nature of the trial, and therefore the statement tended or was calculated to interfere with the course of Justice and was a contempt of court.

Guided by Kenny J's test of likelihood of prejudice in The King v Dolan,34 Pringle J concluded that the statement that Mr Keane was a political prisoner not only tended but was likely in fact to prejudice the trial and to mislead a juror or the public as to the nature of proceedings; it was thus sufficiently serious to require the imposition of a penalty.

The penalties the Court ordered were low: a £50 fine each for Hibernia National Review Ltd and Mr Mulcahy and a fine of £100 for an tUasal Mac


32

[1907] 2 IR 260, at 267–268, referring to Cotton LJ's judgment in Hunt v Clarke, 58 LJQB 490.

33

P14 of Pringle J's judgment. Pringle J did not seek to clarify the distinction between these two concepts.

34

[1907] 2 IR, at 270.



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Aonghosa. Pringle J took several mitigating factors into account: the nature of the periodical, the purpose of the article, the absence of an intention by either the author or the editor to interfere with the trial, and the editor's statement that he would greatly regret if any action on his part were to have any such effect.

In The King v The Freeman's Journal Ltd,35 Mr P McHugh MP had been prosecuted for seditious libels on the administration of justice and on the jury that had convicted two men at Sligo. The jury disagreed in Mr McHugh's trial. The next day of publication, there appeared in the Freeman's Journal and the Evening Telegraph articles entitled “Jury Packing”, stigmatising the prosecution of Mr McHugh as “preposterous” and (in effect) wholly misrepresenting the issue tried in that case. The articles also contained reflections on Lord O'Brien LCJ, who had presided at the trial.

In holding that the articles were calculated to interfere with the course of justice, the Lord Chief Justice stated:

“The substance of the accusation against Mr McHugh was that he had imputed criminal misconduct to certain Protestant jurors who tried the case against Muffeny and Maguire; and the article in the Freeman's Journal dealt with his conduct as if the only thing he did was to denounce the action of the Crown in directing Catholic jurors to stand by. The impugned article not only stigmatised the prosecution of Mr McHugh as preposterous, but it entirely misrepresented the issue. 'Preposterous' was the term it applied to the prosecution, and the whole drift of the article was to make Catholic jurors believe that the charge against Mr McHugh involved their rights as Catholics. This was plainly calculated to prejudice the fair trial of the case.

The article in the Evening Telegraph stated 'that Mr McHugh was not tried on the fair issue – that the Crown, by a system of pleading which, like the Act of Edward 3, dared not be used in England, prevented him from taking up this position of justification'. This was a total misrepresentation of the case. The issue which was presented to the jury was decided, by the concurrent judgment of four members of the Court, to be the legal and proper issue.”36

Lord O'Brien, LCJ referred to a “well-known passage” in Lord Hardwicke's judgment in the case against the printers of the St James Evening Post,37“which met with the approval of the very highest legal authorities, including Lord Hatherley and the then Lord Chancellor of England. Lord Hardwicke in this passage had stated:


35

[1902] 2 IR 82 (KB Div, 1901).

36

Id, at 86–87.

37

2 Atk 469.



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“Nothing is more incumbent on courts of justice than to prevent their proceedings from being misrepresented nor is there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes before the cause is finally heard.”

Lord O'Brien LCJ stated:

“The real effect and draft of the incriminated articles was not merely to condemn the fact of Mr McHugh being prosecuted at all, but to misrepresent the issue. This, in our judgment, was clearly a contempt of court.”38

On the question as to the extent to which the innocence of an accused may be canvassed during his or her trial, R v Castro; Onslow's and Whalley's Case39 is the leading English case. The defendants, Members of Parliament, took an active role in a public meeting where it was alleged that the claimant in the Tichborne Succession Claim was the victim of a massive conspiracy in being prosecuted for forgery and perjury. The meeting passed a resolution declaring that, in its opinion, the prosecution was “uncalled for, and in the absence of explanation, which has been refused, wholly unjustifiable” the resolution demanded “public reprobation”.

The Court held the two defendants guilty of a gross contempt. Cockburn CJ said:

“If it is open to those who take the part of the accused to discuss in public meetings the merits of the prosecution in the interests of the accused, it is obvious that it must be equally open to those who believe in the guilt of the party accused and the propriety of the prosecution, and believe a conviction is necessary to the ends of justice, to hold meetings and to use language of the opposite tendency; and thus the course of justice might be interfered with and disturbed by discussion taking place outside the walls of a court of justice, but which might in the end influence proceedings within it.”40

It may perhaps be doubted whether there is an inevitable logic in this argument. It would be perfectly logical for the law to tolerate a certain range of protest against the prosecution of a person on the basis of his or her innocence without being obliged thereby to concede any right to public calls for the conviction of those who are prosecuted. The protection of the innocent is a legal norm of a different kind than the desirability that prosecutions be successfully brought against guilty defendants.


38

[1902] 2 IR, at 87.

39

LR 9 QB 219 (1873). See also R v Castro; Skipwork's Case, LR 9 QB 230 (1873).

40

LR 9 QB, at 226.



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(d) Deterring witnesses from coming forward

It may be a contempt to publish material calculated to prejudice the court's ability to determine the true facts of a case.41 One way by which this may be achieved is by preventing the court from hearing all the evidence.42 Thus, if a publication is calculated to deter witnesses from coming forward, this will be a contempt.

In Re Labouchere, ex p Columbus Co Ltd,43 Phillimore, J observed that when a case was to be tried on the evidence of witnesses who might be intimidated by reading an article which tended to prejudice the course of justice, this might be contempt. In the case before the Court, Bruce J, is reported as saying that:

“[l]ooking at the whole of the article in question he could not doubt that it was calculated to imply that [the witness] was not [one] to be relied on, that it held him up as a person whose conduct was to be condemned, and that it might prejudice the mind of any juryman against [this witness] who happened to read it.”44

(e) Premature publication of evidence

The premature publication of evidence in a criminal trial may constitute contempt.45 In England the practice of “investigation by newspaper” received its quietus in R v Evening Standard, ex p DPP46 in 1924. There three newspapers had published the results of an investigation they had carried out into a sensational murder case. Lord Hewart CJ is reported as having stated that it had been urged on behalf of one of the defendants:

“that it was part of the duty of a newspaper when a criminal case was pending to elucidate the facts. If he understood that suggestion, when clearly expressed it came to something like this; that while the police or the Criminal Investigation Department were to pursue their investigations in silence and with all reticence and reserve, being careful to say nothing to prejudice the trial of the case, whether from the point of view of the prosecution or the point of view of the defence, it had come to be somehow for some reason the duty of newspapers to employ an independent staff of amateur detectives, who would bring to an ignorance of the law of evidence a complete disregard of the interests whether of the prosecution or the defence. They were to conduct their investigation unfettered, to publish to the whole world from time to time the results of these investigations, whether they conceived them


41

See Borrie & Lowe, 104 ff.

42

See Id, 105.

43

17 Times LR 578, at 579 KB Div (Bruce and Phillimore, JJ, 1901).

44

Id.

45

See Borrie & Lowe, 106 ff.

46

40 Times LR 833 (KB Div; Lord Hewart CJ, Roche and Branson, JJ, 1924).



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to be successful or unsuccessful results, and by so doing to perform what was represented to be a duty, and, one could not help thinking, to cater for the public appetite for sensational matter.”47

This analysis is less than convincing. It slays the paper tiger of a hypothetical publication containing no regard for the dimension of justice: it has nothing to say on the case where the publisher has sought to exert considerable, sensitive control over what is published, in the light of concern for a fair trial.

The Lord Chief Justice went on to evince an awareness that responsible publishers might not fall within the caricature of their profession he had just portrayed; his remarks made it clear that he saw little scope for publishing the results of such investigation by newspapers:

“It was not possible for that Court, nor had it any inclination, to suggest to the responsible editors of those newspapers what were the lines on which they ought to proceed. Any such task as that was entirely beyond the province of that or any other tribunal. Those who had to judge by the results could see what a perilous enterprise this kind of publication was. It was not possible even for the most ingenious mind to anticipate with certainty what were to be the real issues, to say nothing of the more difficult question what was to be the relative importance of different issues in a trial which was about to take place. It might be that a date, a place, or a letter, or some other one thing which, considered in itself, looked trivial, might prove in the end to be a matter of paramount importance. It was impossible to foresee what was important.”48

In In re MacArthur,49 the applicant was arrested and charged with murder against a background of politicial interest and controversy.50 He sought conditional orders of attachment against the Taoiseach and the owner and editors of two newspapers. He alleged that at a press conference, shortly after he had been arrested, the Taoiseach had used certain words in relation to him which amounted to contempt of court. The Government Information Service had issued a statement after this press conference asking journalists not to report this remark, which the statement characterised as a slip of the tongue, made inadvertently.

Costello, J stated:

“It has not been suggested that I should disbelieve these statements attributed to the Government Information Service. It is true that the test which the court is to apply in an application of this sort is whether


47

Id, at 835.

48

Id.

49

[1983] ILRM 355 (High Ct. Costello, J, 1982).

50

See Casey, 438.



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the words complained of are calculated to prejudice the due course of justice,51 and that the test is an objective test.52 But if, as here, it is established that the words were spoken inadvertently in the course of a long press conference in which it was necessary to answer many questions, some of which touched on a pending criminal trial, and if it is shown, as it is shown here, that immediate steps were taken to avoid any possible prejudice that the words might give rise to and if it can be shown, as it can be shown here, that any possible prejudice can be obviated by the direction which the trial judge can give to the jury, then it seems to me to be highly unlikely that the court would exercise its extraordinary punitive powers53 and punish such a person for contempt in the circumstances which I have outlined. I do not think therefore that the applicant has made out a prima facie case for a conditional order and I refuse this application in so far as it relates to the words which it is alleged were spoken by the Taoiseach on [that date].”54

The applicant secondly alleged that the Taoiseach, the day after this press conference, was guilty of contempt in causing to be published in the newspapers the following day part of the contents of the letter which it was alleged was written to him by the applicant. Counsel for the applicant argued that this portion was capable of being construed in a way prejudicial to the applicant.

Costello, J assumed for the purposes of the application that the Taoiseach authorised the publication of the fact that he had received a letter from the accused, and had authorised the publication of certain of its contents as appeared in the national press of the following day. It seemed to him, however, that the publication of the fact that the Taoiseach had received a communication from the accused would not in itself amount to contempt. The publication of the fact that the accused had informed the Taoiseach that the former Attorney General was unaware that he, the accused, was under suspicion by the Gardai would not, in itself, amount to a contempt of court. With regard to the suggestion that there had been authorised publication of a further statement which, it was suggested, was contained in the letter, a statement which was carried in the “Irish Press” on 19 August but not in the other dailies which could be construed as prejudicial to the accused, Costello J thought that it had to borne in mind that contempt “is a criminal offence and, before the court will exercise its extraordinary summary powers to punish someone for contempt, the offence must be proved beyond a reasonable doubt”.55 He was not satisfied that the applicant had established a prima facie case that the court would hold that the words of which he complained held the meaning or were capable of the meaning which he alleged. “If this is so


51

Citing Keegan v de Burca, [1973] IR 233.

52

Citing R v Standard Co, [1954] 1 QB 578.

53

Cf The State (DPP) v Walsh, [1981] IR 412, at 428 (Sup Ct, per O'Higgins, CJ, dissenting).

54

[1983] ILRM, at 356.

55

Id, at 357.



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then no court would make an order punishing the publication of that portion of the letter”.56

The applicant also sought conditional orders of attachment against the editor and proprietor of the “Irish Press” in relation, inter alia to the following matters: the publication of information relating to a letter alleged by the newspaper to have been written by the accused to the Attorney General, and the publication of information relating to the finding of an item of evidence in a flat in which the accused had been arrested.

As to the first of these complaints, Costello J said that:

“the 'Irish Press' ... stated that the accused had written a letter to the Attorney General, Mr. Connolly, apologising for involving him in the affair and that the letter had not been sent out from prison. It is submitted on the applicant's behalf that this statement purported to refer and import a reference to the contents of the earlier letter to the Taoiseach to which I have referred and the report was prejudicial to the fair trial of the applicant. I must accept for the purposes of this application that the accused did not write the letter referred to in the report ... but the publication by the 'Irish Press' of the statement that he did, even if it is untrue, did not in itself constitute a contempt of court. The report in the newspaper of the contents of the alleged letter and what it is claimed was contained in the alleged letter would not, in themselves, prejudice the accused's trial, and further I do not see how prejudice would arise merely because the report ... contains a reference to the earlier letter written by the accused to the Taoiseach.”57

Accordingly Costello J dismissed the application under this head.

As to the other matter, in which reference was made to the finding of an item of evidence, Costello J said:

“It seems to me ... that in the present case the applicant has not made out a prima facie case in relation to the report to which I have referred. I do not think, for example, that it amounts to contempt to describe a dead person as having been 'murdered' when a person stands charged with his murder. It is true that the report does refer to the Garda opinion concerning an item of evidence but on the hearing of this application for an order for committal or of attachment the court would have to take into account both the nature of the report and the issue in the trial to which the report relates before deciding to exercise its summary powers. I am not satisfied that the applicant has shown that a prima facie case exists for the making of such an order in relation to


56

Id.

57

Id.



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the publication ...”58

Accordingly Costello J dismissed this part of the application.

(f) Publication of pre-trial interviews

The position regarding the publication, before they give evidence at trial, of what witnesses have said during interviews is somewhat unclear.59 It is generally accepted that simple and straightforward eye-witness accounts are permissible,60 provided they do not involve badgering of the witnesses or subjecting them to in-depth interviews.61

There is also nothing wrong with conducting interviews for the purpose of publishing material after the trial, provided, of course, that these interviews are not conducted in such a way as to deter witnesses from giving evidence at trial.62

(g) Publication of photographs

To publish a photograph of an accused person when identification is likely to be an issue in the trial is a serious contempt.63 The prejudice may of course be to the accused; but it may also affect the efficacy of the prosecution's case since a prosecution witness who has seen a picture of the accused in the paper may find that the validity of his or her identification is thereby impugned.64

As Borrie & Lowe65 point out

“Not all pre-trial photographs of the accused will amount to contempt since it is a fundamental prerequisite of the offence that at the time of publication, identity must either be or reasonably likely to be in issue


58

Id, at 358.

59

See Borrie & Lowe, 107–108.

60

See Packer v Peacock, 13 CLR 577, at 588 (1912).

61

Borrie & Lowe, 107.

62

Id, 108.

63

Id.

64

See AG v Noonan, [1956] NZLR 1021, R v Daily Mirror, ex p Smith, [1927] 1 KB 845.

65

Borrie & Lowe, 107. Borrie & Lowe go on to say:

“If identity is thought to be an issue (and ... the likelihood of this is determined objectively by the courts in the light of the circumstances existing at the time of publication) then it is no defence that identity is not subsequently raised at the trial, nor that the published picture was so bad that no identification could possibly be made from it, nor that no witness in fact saw the photograph. In other words, the rule is that publication of a photograph at a time when identity is likely to come into issue amounts to a contempt. Given that, as Blair, J pointed out In AG v Tonks, [1934] NZLR 141, at 150, it is 'abundantly plain' that 'when a man has been arrested only, and formally charged, it is impossible to say what his line of defence will be', it is a particularly perilous enterprise to publish the accused's photograph at that time.”



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at the trial.”66

In Re MacArthur,67 Costello, J considered that the publication in a newspaper of a photograph of a defendant charged with two murders was a prima facie contempt. Counsel for Mr MacArthur had argued that visual identification might be an issue at his trial. Costello, J considered that such prima facie case had been made out even though the possible prejudice in the photograph might be obviated by direction to the jury by the trial judge.

(h) Temporal Limitations on the Scope of the Sub Judice Rule

We now must consider the temporal limitations on the scope of the sub judice rule. These apply at the start and finish of legal proceedings.

(1) When does the rule first apply?

There is some authority internationally for the view that the sub judice rule should first apply when proceedings are imminent. It has the support of the Northern Ireland judiciary68 as well as English judges.69 In Ireland, in The State (DPP) v Independent Newspapers Ltd,70 O'Hanlon J addressed the issue. The Director of Public Prosecutions sought the attachment of the publishers, editor and a journalist of the Evening Herald in respect of material in that newspaper which stated that the Director of Public Prosecutions intended to bring indecency charges against a local authority councillor. The article referred to the political party to which the councillor belonged but did not name the person involved nor identify the particular locality to which he belonged. At the time no charge had been brought; however, the affidavit of the Chief State Solicitor, supporting the application, linked the publication with a charge brought against a named accused two days after the publication.

O'Hanlon J refused the application for attachment. He quoted from the English decisions and stated:

“These, however, are only obiter dicta, and I have not been referred to any decided case in this jurisdiction or in the other common law jurisdictions where attachment for contempt of court has been grounded upon material published when no court has actually had seisin of the case in respect of which contempt is alleged. As the courts must always have regard to the countervailing importance of preserving the freedom of the press, I do not consider that the facts disclosed in the affidavit


66

See R v Lawson, ex p Nodder, 81 Sol J 280 (1937).

67

[1983] ILRM 355.

68

R v Beaverbrook & Associated Newspapers Ltd, [1962] NI 15 (QB Div, Sheil J, 1961).

69

R v Parke, [1903] 2 KB 432, R v Daily Mirror, ex parte Smith, [1927] 1 KB 845 (per Lord Hewart, CJ); but see id, at 832 (per Talbot J); R v Savundrayanagan and Walker, [1968] 3 All ER 439, at 441 (CA, per Salmon LJ, for the Court).

70

[1985] ILRM 183 (High Ct, O'Hanlon J, 1984).



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grounding the present application are of such a character as would justify me in extending the law as to contempt of court in the manner now sought by the Director of Public Prosecutions.”71

It is, perhaps, unfortunate that the Northern Ireland case of Beaverbrook was apparently not mentioned as it represents a clear authority for the application of the law of contempt to cases where proceedings are imminent.

(2) The position between conviction and sentence

After a person has been convicted, but before sentence, the position as regards contempt is changed somewhat. This is because the judge, who has the exclusive function of sentencing, is less likely to be influenced by media comment than a jury would be.72 There are, however, decisions in England73 and New Zealand74 taking the view that it is too narrow to focus merely on the possibility of influencing the judge. As Myers CJ said in AG v Tonks75:

“The court must not only be free – but it must also appear to be free – from any extraneous influence. The appearance of freedom from any such influence is just as important as the reality. Public confidence must necessarily be shaken if there is the least suspicion of outside interference with the administration of justice.”76

(3) The position after a jury disagreement

Where a trial has ended in a jury disagreement, the restraints appropriate to a pending trial continue to apply regarding contempt.77

In The King v The Freeman's Journal Ltd,78 to which we have already referred in some detail, the offending articles were published the next day of publication following on a trial which had ended in a jury disagreement. The


71

Id, at 184–185.

72

See Borrie & Lowe, 109–110.

73

The Operation Julie case (1978) discussed by Borrie & Lowe, 110.

74

AG v Tonks, [1939] NZLR 533.

75

Supra.

76

It is worth recording Borrie & Lowe's comments in this context (at 110):

“Although the rationale of maintaining public confidence and respect for the independence, authority and fairness of the judiciary lies at the heart of other branches of contempt law, such consideration has generally not been applied with respect to comments about decisions pending their appeal and it may seem unduly restrictive to apply them to comments pending sentence. It is worth adding that since Park, J's ruling [in the Operation Julie case] there have been no subsequent warnings nor prosecutions though there have been cases where there has been detailed public comment between verdict and sentence.”

77

See AG v News Group Newspapers Ltd, 4 Cr App Rep 182 (1982).

78

[1902] 2 IR 82 (KB Div, 1901). As to disclosure after jury disagreement in civil proceedings of members in favour of either party, see Sheehy v The Freeman's Journal Co Ltd, 26 ILTR 47 (Ex Div. 1892).



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editors argued that they should not be held liable for contempt because they believed that the trial was no longer pending. O'Brien LCJ disposed of this contention summarily:

“We cannot at all adopt this reasoning. The prosecution was, in fact, still pending. To animadvert adversely upon the institution and character of a prosecution, to stigmatise it as preposterous, and wholly to misrepresent the issues involved in it, and to do this immediately after the disagreement of a jury, whilst public attention is fixed upon it, and the public mind, with reference to it, by reason of the excitement which an abortive trial has occasioned, is in a susceptible and malleable mood, seems to me clearly to fall within the definition of 'contempt of court'. No doubt, the belief that the prosecution is at an end is all-important in reference to punishment, as I more than once pointed out.”79

The question must arise as to what would have been the Lord Chief Justice's view in a case where the defendant's belief that the trial was over was bona fide and reasonable, though mistaken, and the criticism or other comment did not amount to scandalising the court. The passage just quoted from the Lord Chief Justice's judgment would not appear capable of supporting the imposition of criminal responsibility in such a case.

The Lord Chief Justice went on to distinguish Metropolitan Music Hall v Lake,80“even if well decided”.81 In that case, the defendants had not known that legal proceedings had been even commenced; “and there is in the self-same volume of the Law Journal a judgment of the present Lord Justice Stirling, in which he held that the printer of a newspaper could be made responsible in a proceeding against him for contempt of court, although he had no knowledge of the contents of the incriminated article”.82

This is not a very convincing argument. If a defendant should avoid liability by reason of his belief that no proceedings were in existence at the time of the publication because he had no way of knowing that they had yet begun, it is difficult to see why he should not also avoid liability by reason of his belief that no proceedings were in existence at the time of the publication because he had no way of knowing that they had not been completed. Of course it is possible to scandalise a court in respect of completed proceedings, but that is a different matter. A criticism will be no less a scandalising of the court by virtue of a mistaken bona fide and reasonable belief that the proceedings have been completed. In any event it is worth recalling that it is perfectly possible to scandalise a court in respect of proceedings that have not yet


79

[1902] 2 IR, at 88–89.

80

58 L.J Ch 513.

81

[1902] 2 IR, at 89.

82

Id.



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begun.83

The Lord Chief Justice had no difficulty in (rightly) rejecting the respondents' contention that no contempt of court had been committed because there had been a conviction on the second trial of Mr McHugh:

“The contention that no contempt of court was committed because there was a conviction on the second trial needs only to be stated to be refuted. If such a proposition was maintainable, the most deliberate attempt to obstruct the course of justice should go unpunished if it had not had the desired effect. In order to ascertain whether a contempt of court has been committed, we must regard the incriminated article and the state of things which existed at the time of its publication. The mischief that has been done may be regarded as a element in determining what punishment should be inflicted, if any.”84

This passage is interesting in raising the question as to why, if a justified mistaken belief that the trial has ended will not afford a defence, the court, in determining whether the defendant is guilty of contempt of court, should have regard to the incriminated article and the state of things which existed at the time of its publication. If, as a matter of fact, a published criticism results some time after its publication in an interference with the administration of justice, why should that not be a crime? The reason for locating the test at the time of the publication is presumably out of concern for fairness to the defendant. Yet there is no similar concern so far as the issue of reasonable belief as to the termination of proceedings is concerned.

The Lord Chief Justice's treatment of the question of punishment is of considerable contemporary relevence:

“I now come to what I have all through considered to be the real question in this case – what punishment (if any) should be inflicted. I have considered this matter with the most anxious care, and, in considering it, I have regarded what I believe was the object of the motion on the one hand, and on the other the beliefs and action of the company and its editors. The company, of course, acts through its editors. Now, the object of the present motion was, if I may use the expression, protective and admonitory. I am satisfied that the object was to safeguard the administration of justice, and to give a warning that the fact that a jury has disagreed does not justify public journalists in commenting upon the case in which they have disagreed, as if that case was at an end.

“In my opinion the object of the motion has been fully attained. The administration of justice has been safeguarded. Neither the Freeman's


83

Cf AG v Connolly [1947] IR 213.

84

[1902] 2 IR, at 89.



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Journal nor the Evening Telegraph repeated the offence of which they were guilty, and justice was done on the second trial. So much for the object of the motion.

“Now, as to the respondents, it has been proved that the company gave directions to their editors not to comment on pending cases, and I am satisfied that the editors, though they were entirely mistaken, really believed that, when the jury disagreed, the prosecution was at an end. Taking these matters into consideration, whilst we are of opinion that a contempt of court, in the sense which the law attaches to that expression, has been committed, and whilst we so adjudge, we impose no imprisonment or fine; but we desire very distinctly to point out that, if in the future there is a similar transgression, and those who transgress are severely punished, they will have themselves to blame.”85

This passage is important in emphasising the predominant motive of deterrence of others rather than of punishment. There is in Freeman's Journal no apparent sensitivity to the punitive implications of criminal contempt, or indeed to the criminal dimensions of the proceedings at all. Contempt proceedings to enforce the sub judice rule seem to be perceived as operating as a mechanism of control over commentary on judicial proceedings so as to ensure the smooth administration of justice. This is quite consistent with the Court's attitude to the mens rea issue which arose for consideration in the case.

In contrast to the Lord Chief Justice, Gibson J is willing to countenance some exception to the rule that a case after a jury disagreement should always be treated as ongoing or pending. He said:

“I accept the statement in the defendants' affidavits that such belief was bona fide entertained but none the less were the articles a contempt. An abortive trial is the same in its legal consequence as no trial at all. The proceeding still remains pending and undetermined. Under certain conditions, and even perhaps from the lapse of time, the inference may be fairly drawn that a prosecution or action has been abandoned; but the mere fact of disagreement does not justify such an inference. I can recall many cases in which after two and even more disagreements there has been a conviction, though no doubt the nature of the charge was different from that directed against Mr McHugh. The articles were plainly contempts of court if the prosecution was pending; and, though their bona fide belief that the prosecution was at an end may be available by the defendants as a palliation or excuse, it does not answer the contempt; there was no legal justification for such belief.”86

Gibson J does not mention what these “certain conditions” might be: perhaps


85

[1902] 2 IR, at 89–90.

86

Id, at 91.



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an indication by the trial judge to the prosecuting authorities that he does not consider a new trial appropriate87 would be one such instance. The question must arise as to whether the test of pendency in such circumstances is to be determined by the standard of a reasonable person at the time of the making of the publication or by the way matters worked out in fact, or by some other test. If there has been no retrial by the time the prosecution for contempt is heard, then, of course, inevitably the standard will be one of the reasonable person. But if there has in fact been a retrial, the question becomes a more difficult one.

Firstly, the defendant may argue that he had no reasonable means of anticipating such an outcome. Gibson J's language is not entirely clear on this issue: it seems at least consistent with exempting the defendant from liability in such circumstances.

Secondly, it is worth considering what implications this case has in respect of general requirements as to pending vis a vis ongoing criminal proceedings. As we have seen, O'Hanlon J, in the Independent case, gave an apparent imprimatur to publication throughout the pendency stage. He can hardly have meant by this to have committed himself to the proposition that, between the time a jury disagrees and a retrial, the press (and others) can treat the position as an “open season”. Talk of pendency should not lead to such a result. Regardless of how this limbo period is characterised, the fact is that it is quite different from the period immediately before prosecution. A person who has not yet been prosecuted may never fall within the clutches of the criminal justice system, whereas a person who has been tried and whose prosecution has resulted in a jury disagreement is already within the criminal justice system– the only question is whether the prosecuting authorities will release him from their clutches. On this analysis, the Independent approach should not authorise comment after a jury disagreement unless, applying some such test as is adumbrated by Gibson J in the Freeman's Journal, there is no prospect of a re-trial.

Thirdly, Gibson J's comments in the passage quoted above as to why the defendants' bona fide belief did not exempt them differ in an important respect from those of the Lord Chief Justice. Whereas the Lord Chief Justice was clear that a mistaken belief that the prosecution was at an end could never afford a defence, whether that belief was based on a mistake of fact or of law, it seems that Gibson J's refusal to recognise such a defence went no further in its express terms than cases of a mistake of law. As we shall see, he accepted that, in certain specified cases, a mistake of fact would be capable of affording an excuse. The manner in which he characterised the basis of the grounds for that excuse, however, suggests that he did not exclude the possibility that certain mistakes of fact – that is, those mistakes of fact other


87

This occurred in a recent prosecution for unlawful carnal knowledge brought in the Circuit Court before Judge Buchanan and a jury on 15 January 1990: see the Irish Times, 16 January 1990.



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than the ones he identified – might (or should automatically) be incapable of affording a defence.

This brings us to what Gibson J had to say thereafter:

“The case of Metropolitan Music Hall v Lake88 was urged as an authority that innocent intent – there was in that case ignorance that any proceeding was pending – might be an answer not merely to punishment but to the technical offence. No doubt in some cases ignorance may exclude the application of contempt, as where an order to hear a case in camera is made, and a journalist, bona fide, without being aware of such order, publishes the proceedings. But in such a case the contempt is not founded on any interference with the course of justice, but on the violation of an express order by the Court. Such order cannot be treated as disobeyed if its substance is not known. That a charge of contempt, such as we have here to deal with, cannot be always met by the plea of ignorance is shown by the American Exchange Case,89 where it was held that a printer or publisher who knew nothing of the matter printed could be committed for contempt. M'Leod v St. Aubyn90 and Vizetelly v Mudie91 are to the same effect. In many of the cases there seems to be some confusion between the offence and the punishment of the offence. The essential object of this summary jurisdiction to commit for contempt is preventive – the protection of justice and of those connected with its administration, jurors, witnesses, etc, from external interference. Assuming that Mr Justice Chitty's decision is correct, it has no application here, where the defendants knew that there was a prosecution which was legally undetermined. They believed mistakenly that the Crown would not proceed, but they had no legal grounds for such belief.”92

This passage brings us back to the troublesome question of the extent to which Gibson J may have excluded an excuse based on reasonable belief of fact. It is noteworthy that in the passage quoted above, Gibson J refers to “some cases” without specifying their remit and then goes on to instance one such case clearly as an example of those cases. He goes on to offer a distinctive characterisation for the existence of an excuse in that instance, namely, that:

“in such a case the contempt is not founded on any interference with the course of justice, but on the violation of an express order by the Court.”93


88

Supra.

89

58 LJ Ch 706. This case is referred to, without name, by the Lord Chief Justice.

90

[1899] A C 549, at 562.

91

[1900] 2 QB 170.

92

[1902] 2 IR, at 91–92.

93

Id, at 91.



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This argument has an initial attraction: it is worth examining whether it withstands closer critical scrutiny. A defendant who publishes material contrary to a judicial prohibition on doing so may of course be exposed to the risk of attachment for the breach of that order – and will, on Gibson J's approach, have an excuse if he could not have been aware of the order. But if what he has said would be likely to interfere with the administration of justice, then he will be liable regardless of his innocence as to his breach of the order not to publish. Gibson J says of an unknown order that “[s]uch order cannot be treated as disobeyed if its substance is not known”.94 It is quite true that, in order to disobey, one must be conscious of the existence of an obligation to obey: here specifically an order was made and it may convincingly be argued that, in the absence of knowledge of the order one could not be under an obligation to obey it. But that would not be an automatic consequence: if a person had reason to know or believe that an order might be, or have been, made, he might in some circumstances fall under a duty of enquiry or of bearing this possibility in mind when planning future behaviour. Is the position any different in relation to a person who makes a comment on a trial which he reasonably believes to be over (or not to have begun)? In such a case he believes (reasonably) that he is not under an obligation not to do so, just as the person who makes a comment on a trial where he has not heard of the judicial prohibition against doing so. The fact that, in the one case the comment is of a type capable of interfering with justice and in the other it has not necessarily this quality, may be considered irrelevant. What is relevant is that in both cases the person engages in conduct in respect of which he is reasonably unaware of any obligation not to do so. The particular constituents of that conduct or of the kind of conduct in question are not relevant.

(4) The position pending appeal against conviction or sentence

After conviction and sentence, and pending appeal, the position relaxes; whether a publication constitutes contempt can depend on whether an appellate court may order a re-trial and how long it may be before the re-trial takes place. Once an appellate court has ordered a re-trial, of course, the position becomes again as strict as it was during the original trial.

The issue has been considered relatively recently in the Irish Courts.

In Cullen v Toibin and Magill Publications (Holdings) Ltd,95 the plaintiff had been convicted in the Central Criminal Court of murder and of malicious damage and had been sentenced to penal servitude for life on the first count and to fifteen years' penal servitude on the second. His application for a certificate of leave to appeal had been refused. He immediately appealed to the Court of Criminal Appeal against that refusal. When his appeal was pending, the plaintiff sought an interlocutory injunction to restrain publication


94

Id.

95

[1984] ILRM 577 (Sup Ct, 1983, rev'g High Ct, Barrington, J, 1983).



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in Magill of an article concerning him, written by Mr Toibin.

It appeared from what counsel for the plaintiff told Barrington J in the application for the injunction that “the only evidence against Mr Cullen was the uncorroborated evidence of an alleged accomplice ...” It also appeared that the trial judge, in his charge, had warned the jury that there was no corroboration for this witness's evidence and that, while they could convict on her uncorroborated evidence, it would be dangerous to do so. The publishers of Magill had entered into an exclusive contract with the witness to publish an article, based on material supplied by her.

Barrington J granted the injunction but the Supreme Court reversed.

Barrington J said:

“I have read the article which is a lengthy one. It is written with verve, and is, I am prepared to accept for the purpose of this application, a serious piece of investigative journalism written about matters which may be thought to be legitimate objects of public interest and concern. But it is essentially [the witness]'s story written for her by a talented journalist. It deals with her life and background, her relations with Mr Cullen, issues of guilt or innocence in relation to the offences charged, and with Mr Cullen's background, character, psychological make-up and mode of living. It contains many serious and prima facie defamatory allegations. It touches on many matters, some of which were given in evidence at the trial and some of which, according to [counsel for the plaintiff], were not. It purports to enter into [the witness]'s mind and contains many matters and insights which, be they true or false, would not be capable of proof in a court of law.

The article, if published before the trial in the Central Criminal Court, would clearly have been contempt of court.

This is not an application to convict for contempt of court but is an application to restrain the publication of material on the grounds that it is likely to interfere with a criminal trial. I am satisfied that the court has jurisdiction to grant such an injunction. I am satisfied on the basis of authority that the onus on the plaintiff in this case is to prove to my satisfaction, on the balance of probability, that the article, if published, would be likely to prejudice his trial.”96

Counsel for the defendants submitted that there was no danger of the plaintiff being prejudiced in his appeal since the three professional judges were trained to exclude irrelevant or inadmissible matter from their minds. Barrington J responded:


96

[1984] ILRM, at 579. (citations omitted).



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“No doubt judges are so trained and for that reason courts have traditionally taken a less serious view of adverse pre-trial publicity where a case was to be tried by a judge or judges alone than when it was to be tried by a judge sitting with a jury. Certainly the courts have taken this view when the adverse publicity consisted of mere general assertions, e.g. that an alleged statement was involuntary, but that is not the present case. Speaking for my own part, I think it would be unwise to assume that judges are totally immune from frailties commonly held to afflict juries.”97

Barrington J noted that the problem had been discussed by the English King's Bench in the case of R v Davies, ex p Delbert-Davies.98 There Humphreys J had referred to the embarrassment caused to a judge who is told matters he would rather not hear and which make it more difficult for him to do his duty. Oliver J, of the same view, had said:

“In my view, on the authorities, contempt of court can be committed at any time until the case is ended, and it is not ended until after the hearing and decision of an appeal, if there has been an appeal. I fully agree with [Humphreys, J], and I share his view as to the importance of the matter, that jurors are not the only people whose minds can be affected by prejudice. [In my view, it is absurd to suggest that judges' minds could not be affected by prejudice.] One of the risks of inadmissible matter being disseminated is that no one can tell what effect a particular piece of information may have upon his mind. [He cannot be sure himself; his mind is not a thing with regard to which it can be said exactly what material brought it to any particular view at any moment.] Why, as [Humphreys, J] has asked, and I can think of no better word, should a judge be 'embarrassed' by having matters put into his mind, the effect of which it is impossible to estimate or assess?”99

Barrington J, having quoted this passage, stated:

“Moreover the possibility of a retrial before a jury cannot be eliminated. [Counsel for the plaintiff] fairly admits that the nature of his client's appeal is such that a retrial is improbable, the more likely outcome being the quashing of the conviction or the dismissal of the appeal. Nevertheless the Court of Criminal Appeal has power to order a retrial and, until the proceedings are over, the possibility of a retrial before a jury cannot be excluded. [Counsel for the defendants] submits that


97

Id, at 580.

98

[1945] KB 435.

99

Id, at 445, [1945] 2 All ER, at 174. The sentence italicised in the quotation does not appear in the King's Bench reports but does in [1945] 2 All ER 167, at 174. The reporter to the Irish Law Reports Monthly (Mr. Raymond Byrne) notes this distinction: [1984] ILRM, at 580.



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such a retrial, until ordered by the Court of Criminal Appeal, could not be regarded as pending proceedings in relation to which the crime of contempt could be committed. That may be formally correct. But we are not here dealing with a prosecution for contempt of court. We are, however, dealing with ongoing criminal proceedings and with the power of the court to restrain the publication of matter likely to interfere with the accused obtaining a fair trial in those proceedings.”100

Counsel for the defendants had alleged finally that Mr Cullen's case had, since the verdict, and while the appeal was pending, been the subject matter of discussion in the press and on television. If Magill were now restrained from doing what other organs of public opinion had already done, this would constitute unfair discrimination. He referred to an argument that had “found some favour”101 with the English Court of Appeal in AG v Times Newspapers.102 Barrington J responded:

“That was the Thalidomide case and the pending proceedings raised matters of public importance which had been discussed in parliament and elsewhere. In these circumstances counsel for the Times Newspapers submitted that it was unfair to the Attorney General to move against the Times. In my view Times Newspapers case presents no fair analogy with the present case. For one thing the present case is a criminal case whereas that was a civil case. For another the moving party in the present case is not one of the great officers of State but a man who, having been convicted of murder, is appealing against his conviction. If his case has been discussed in the press or on television it has not, I am sure, been of his choosing and is regrettable. He is entitled to have his case tried in accordance with law on the basis of the evidence in the court and not otherwise.”103

The Supreme Court reversed. O'Higgins CJ noted that it:

“can be accepted that many of the views expressed by the writer of the article on behalf of [the witness] would be capable of defamatory assessment but this is by the way.”104

He noted that, whatever the result of the appeal, it seemed “highly improbable”105 that there would be a new trial. He went on to say:

“The basis for the application for the injunction which Mr Cullen has been granted is that the publication of the article would be prejudicial


100

[1984] ILRM, at 580.

101

Id, at 581 (per Barrington J).

102

[1973] QB 710.

103

[1984] ILRM, at 581.

104

Id.

105

Id.



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to the conduct of the appeal in that in one way or another the judges hearing the appeal would be biased in regard to the consideration of that appeal. I can see no basis for this suggestion. The Court of Criminal Appeal will be asked to consider pure questions of law relative to the appeal. It cannot be suggested that, in considering such questions, publication of this or any number of articles in any number of periodicals would have the slightest effect on the objective consideration of legal arguments. It seems to me that such an argument is unsustainable.

“That is not to say that one approves of the publication of this article. I think that better taste might indicate that articles of this kind should not be published during the currency of legal proceedings involving a citizen. There is, however, the matter of the freedom of the press and of communication which is guaranteed by the Constitution and which cannot be lightly curtailed. Such can only be curtailed or restricted by the courts in the manner sought in these proceedings where such action is necessary for the administration of justice.

“While I sympathise with the view that anybody reading the article might be affected by the article, that is not the issue. There is not any reason for suggesting prejudice or any form of contempt in relation to the hearing before the Court of Criminal Appeal.”106

This passage provokes a number of observations. First, it is far from clear that the mere fact that the issues facing an appellate court involve questions of law rather than of fact automatically removes the possibility of an appellant (or respondent) being prejudiced by the publication of prejudicial material. In the case in question, the publication could have stimulated in the reader's mind thoughts as to whether or not the witness who was the alleged accomplice should be believed. Of course that would not directly impinge on the rules of law as to accomplice evidence; but it would be straining artificiality to breaking point to suggest that no judge has been affected, in his (or her) articulation of legal rules, by an application of their likely or certain outcome in fact. The Chief Justice's statement goes so far as to reject as “unsustainable” the argument that the publication of “any number of articles in any number of periodicals would have the slightest effect on the objective consideration of legal arguments”. In his view, thus, such a risk is non-existent. With respect, this is too extreme a statement, at variance with human experience.

The second matter relates to O'Higgins CJ's reference to the freedom of the press and of communication “which is guaranteed by the Constitution and which cannot be lightly curtailed. Such can only be curtailed or restricted by the courts in the manner sought in these proceedings where such action is necessary for the administration of justice”. The Chief Justice did not indicate


106

[1984] ILRM, at 581–582.



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the extent to which this constitutional consideration affected the outcome of the case. On one view it could be interpreted as no more than a general rhetorical nod in the direction of Article 40.6.1. On another view, it could amount to the proposition that, even with a risk of probable (or possible) prejudice, a publication should nonetheless be permitted. The latter interpretation, apart from its dubious justice, seems unlikely in view of the lack of any developed argument by the Chief Justice.

Thirdly, it is worth contrasting O'Higgins CJ's approach with Finlay CJ's statement in the later decision of The People (DPP) v Conroy,107 that “[e]xperience as a judge indicates that even as a trained lawyer there is a very significant difficulty in excluding from one's mind incriminating evidence on the trial of a criminal case which is inadmissible”.

In his concurring judgment, Hederman J said that he was “absolutely satisfied”108 that there would be no prejudice in relation to the hearing. He added:

“I wish to emphasise what the Chief Justice has said that this is not to say the court approves of the article or that the plaintiff could not take a course of action on the civil side if it is found to be defamatory.”109

McCarthy J also agreed with the Chief Justice. He said:

“This appears to be an instance of what is called cheque book journalism; to refuse the injunction sought is far from indicating any approval of the content of articles of this kind. Article 40.6 of the Constitution guarantees freedom of speech subject to certain qualifications or restrictions. The judgment of the Supreme Court in Re Kennedy and McCann110 dealt with an instance of 'a biased and inaccurate account of guardianship proceedings' being published in a Sunday newspaper – a contempt of court by reason of its content and a further contempt by the breach of an order prohibiting publication. Such is not the case in the instant appeal.

The courts must be vigilant to protect the citizen who also has the right to be informed – to protect the citizen against any improper prejudice to the due trial of criminal proceedings either of first instance or on appeal. There is no suggestion that the publication of the impugned material would scandalise the Court of Criminal Appeal or undermine, in any sense, the administration of justice or bring it into disrepute. It was suggested that even in the determination of pure issues of law professional judges would, on reading the article, be prejudiced in their


107

[1986] IR 460, at 472 (Sup Ct).

108

Id, at 582.

109

Id.

110

[1976] IR 382.



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objective determination and assessment of the issues of law involved because of extraneous matters of fact referred to in the article. Such a suggestion fails in limine. From a public point of view it would be far worse that the public should think that the judiciary would lose its objectivity in determining a pure issue of law because of some article in a news magazine. My view that nihil obstat the publication is far from being an imprimatur.”111

Like the Chief Justice, McCarthy J took the view that in no case where issues of law were concerned could a professional judge be prejudiced – apparently regardless of the nature of the publication and its contents. It is surely going somewhat too far to state, as McCarthy J did, that, from “a public point of view”, even to suggest that prejudice might112 occur would be worse than to suggest the contrary.

It is worth noting, finally, in this context the possibility of prejudice to the accused by publications after conviction and sentence which may have the effect of deterring him from appealing. Borrie & Lowe113 state:

“Adverse comment may induce an accused not to appeal and it may be argued that this constitutes an interference with the due administration of justice. There is no direct authority on this point but in view of the lack of case law despite numerous examples of outspoken criticism of decisions, particularly of sentences, it may be that this possibility of influence is not considered relevant. It has been said114 to be irrelevant that an article might lead a prisoner to think that he will be or has been prejudiced in his appeal.”

It may be argued that there is a serious issue of justice here which has been largely ignored, for tempting reasons of policy. If a man convicted of mugging an old lady is sentenced to a period that certain newspapers think too low, and if they are free to inveigh against the sentence without restraint, this may well deter the man from appealing against sentence. He may form the judgment that, in such a climate, his appeal would have less prospects of success (and might indeed result in an increased sentence) than if the newspapers had not acted thus. No doubt the appellate judges would argue that they would not be affected by the newspapers' campaign; but this assessment of their own freedom from influence might not be shared by the accused. It is one thing to assert such independence; it is another, more wide-ranging, thing to assert that no reasonable person could disagree that judges


111

[1984] ILRM, at 582.

112

The word used by McCarthy, J was “would” rather than “could”. The test set by him was thus too onerous from the plaintiff's point of view; one suspects, however, that nothing hinged on this difference, as McCarthy. J's rationale did not concentrate on this element. It is perhaps worth noting that O'Higgins CJ (at 581) also adopted a “would” test but in a context where it seems to mean “could” in view of his reference to “any ....”

113

Borrie & Lowe, 112 (one footnote reference omitted).

114

R v Duffy, ex p Nash, [1960] 2 QB 188, at 200 (per Lord Parker CJ).



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are so independent. The fact that in Cullen v Toibin115 Barrington J considered himself not be so free of influence makes it plain that a similar judgment formed by an accused, though not shared by the appellate judges, would not necessarily be an unreasonable one. If this is so, the prospects of such newspaper commentary deterring a defendant, on reasonable grounds, from taking an appeal which he otherwise would have, are real.

Of course there are strong policy arguments against muzzling newspapers from comment (and other types of publication) immediately after sentence; but, however strong these policy arguments may be, they are not such as to obliterate consideration of the risk of prejudice to the defendant.

(i) Defences

As regards possible defences to the charge of contempt through publications interfering with particular criminal proceedings, two possible defences have been canvassed: public interest and the discussion of public affairs.116

1. Public Interest

Borrie & Lowe, in the first edition of their work,117 argued that the courts might possibly recognise a defence of public interest on the basis that a greater public interest might on occasion outweigh that of the public interest in the due administration of justice, which the law of contempt sought to serve. Their particular concern related to cases where information was published at the request of the police both with a view to securing a person's arrest and at the same time warning the public that he might be dangerous. The rejection by the House of Lords in the Sunday Times118 case of the defence of public interest, and Lord Reid's approach in particular,119 led the authors to state in their second edition that:

“[i]f this latter view is right then there seems to be no scope for the application of a defence of public interest though it has to be said that no prosecution has been brought in the type of example we have been discussing.”120

The authors doubt121 whether an argument122 would succeed to the effect that publication in such circumstances would help rather than hinder the administration of justice. In Ireland, where there is no judicial precedent


115

Supra.

116

See Borrie & Lowe, 115 ff.

117

(1959), at p11.

118

Supra.

119

[1974] AC, at 301.

120

Borrie & Lowe, 115.

121

Id.

122

Expressed by Sir Michael Havers, as Attorney-General, during the Committee Stage of the 1981 legislation.



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similar to the Sunday Times case, there seems no reason why this argument should not prevail.

2. Discussion of Public Affairs

There is support in Australia for the view that discussion of public affairs may warrant publication of material which would otherwise offend against the sub judice rule. In Ex p Bread Manufacturers Ltd, Re Truth and Sportsman Ltd,123 Jordan CJ stated that:

“if in the course of ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a lawsuit it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion of denunciation may, as an incidental but not intended by-product, cause a risk of prejudice to a person who happens to be a litigant at the time”.

CIVIL PROCEEDINGS

(a) Introduction

We now must consider the legal position relating to publications interfering with the course of justice in particular civil proceedings.124

Although there are some dicta125 to the effect that the court's solicitude to protect the stream of justice from interference in criminal cases is stronger than in civil cases, the court's willingness to protect civil cases should not be underestimated. The test, common with criminal cases, is whether there is a real risk of prejudice to the particular proceedings.126

In civil proceedings in the High Court, where there is a jury, publications calculated to impair the jury's impartiality may constitute a contempt. The most frequent case where this arises is in proceedings for defamation.

In O'Connor v Sligo Corporation,127 the defendant, Mr P A McHugh, was an MP, an ex-Mayor of Sligo and the proprietor of the Sligo Champion. He was a defendant in litigation between Mr O'Connor and the Corporation, in which the plaintiff sought an injunction and damages for trespass in knocking down


123

37 SR (NSW) 242, at 249 (1937). See Miller, 229–230.

124

See generally Borrie & Lowe, ch 5.

125

E.g., Re New Gold Coast Exploration Co, [1901] 1 Ch 860, at 863.

126

See Borrie & Lowe, 128.

127

INIJR 108 (1901).



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a wall built by the plaintiff on ground which the Corporation alleged was part of the public street.

During the currency of the litigation, the following article was published in the Sligo Champion:

“We regret exceedingly that Mr Hugh O'Connor, licensed publican, O'Connell Street, has by his injudicious conduct brought his name prominently before the public. He lives by the people, and there should be a sort of give and take in his conduct when he deals with members of the very humblest class in society. He has now taken an action against the Sligo Corporation to recover damages because that body, as a sanitary body, did, at the suggestion of the late mayor, an act which they thought they were justified in doing. He should recollect he was not always the opulent merchant, with the hundreds of empty hogsheads before his door, that he is now. He should have a fellow-feeling with the poor and lowly, if he only looks back to the days of his infancy. Formerly he paraded as an advanced Liberal who, in opposition to conservatives, worked and voted for the then advanced party, one of whose planks was the bettering of the conditions of the poor. Surely he could get on with his acquired property in Abbey Street – with the help of the ex-sergeant of police – without resorting to building up walls against a house to shut out light and air from a poor man's domicile. Considering his former professions we are sorry Mr O'Connor has placed himself in a rather awkward position. We can understand tough old Tories, who have by lineal descent come in for property which belonged to them since Cromwell parcelled out the country, but it is really surprising to us that a man sprung from the people should try and enforce his claims to God's light and air by means of 'the Grace of God' on parchment.”

Six days later, an application for attachment was made. On the application by Mr McHugh's solicitor, stating that he had received a telegram from Mr McHugh expressing his willingness to apologise, and that he had been unable to instruct counsel yet, the motion was adjourned for three more days.

One day after the adjournment, the Sligo Champion published a report of a speech made by Mr McHugh to a crowd in Sligo, on his return from Dublin after a trial for seditious libel in which the jury had disagreed. Part of the speech referred to the litigation between Mr O'Connor and the Corporation. It read as follows:

“In Abbey Street, a merchant of this town, Mr Hugh O'Connor, of Knox Street, Sligo, built up a wall to shut out from seven poor little children of a labouring man the light of heaven and the breath of air. I took down that wall, and I can tell you that when Hugh O'Connor has done with the people he will be the sickest man in this town.”



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In the same issue appeared an article headed “Mum's the Word!”, which stated:

“We are also ordered by the High Court in Dublin not to say anything about the great case of Hugh O'Connor v the Sligo Corporation. Before leaving for London to his Parliamentary duties, Alderman McHugh, the proprietor of the paper, was served with a 'conditional order' of some sort, requiring him, under pain of penalties, not to say a word about the case, lest some of Mr O'Connor's witnesses, including Mr ex-Sergeant McTernan, we suppose, would be frightened out of their lives and refuse to go up to Dublin to give evidence before the Master of the Rolls. Mum's the word, then. We must particularly stand by in both cases and abide by the results when they come. In the course of time we may be allowed to have our say about 'the wall that Hugh built'.”

The defendant, in a telegram read to the Court, stated that he would not comment further on the case.

Chatterton VC made the requested order of attachment.128 He stated:

“Nothing can be more dangerous than to allow comments of such a character as are in this case exhibited being made upon matters pending in courts of law, and it becomes necessary for me to apply the rule applicable in such cases. No excuse has been made by this suitor in an action coming on in this court for in a public speech denouncing the action of the parties, and especially of the plaintiff, in seeking to obtain justice. It is not merely in the interests of this court, but of the public, that this case has been brought forward. This gentleman has made a speech upon the issue of another trial, into which he has gratuitously and improperly imported matters relating to the action in this court now pending as to the building of this wall, the subject-matter of the action. It was on this the plaintiff mainly relied, as creating what he alleged, and what I think may very likely be a difficulty in obtaining evidence for the trial of his action. That speech was addressed to a crowd of persons, some of whom possibly were not very strict upholders of law and order, who might put the spirit of the speaker's remarks into practice, and so witnesses might be deterred from coming forward. I have never, in the whole course of my long service in this court, had a case of this kind before me, and I regret very much it should have occurred. That, however, is a personal matter of minor consideration, and does not at all detract from the obligation which rests upon me of upholding the dignity of this court: and even the upholding of the dignity of this court is subordinate to keeping the stream of justice clean and pure, and enabling suitors to prosecute their actions and


128

The report noted that it was later arranged between the parties that a stay should be put on the order for the present.



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obtain evidence free and undeterred. I do not think that the conduct of this gentleman, though now at the last moment he has come forward with a kind of apology, is at all what might have been expected from him. He should have taken immediate steps to set right what he had done, and in his newspaper, and by every other means in his power, to have expressed his regret, and apologise. He has done nothing to purge his contempt and I must make the order sought.”129

It is interesting to note that counsel for the defendant had argued that “[p]laintiff's witnesses could not be intimidated; the question in the action is one simply of law”.130 The Vice Chancellor did not expressly address this issue in his judgment, as we have seen. It may be argued from the statement of facts in the report that, while the central issue may well have been one of law, it had to be backed by witnesses as to fact, on such matters as the precise role of Mr McHugh in the affair.

(b) Disparaging one or more of the parties

Another way in which prejudice may be caused is by disparaging one (or more) of the parties.131 In Russell v Russell,132 a newspaper commented in the following terms about Lady Russell's proceedings against her husband for the restitution of conjugal rights, following her unsuccessful proceedings for divorce:

“There is a good deal of natural disgust in society at the suit .... At the conclusion of the countess's unsuccessful divorce suit, there was, I am told, a strong attempt on the part of the friends of both parties to patch up the quarrel, but the earl, on the one hand, was unable to stomach the disgusting insinuations against him which were bandied about at that trial, while, on the other hand, the countess obstinately refused to budge from the wrong-headed attitude she had taken up. Her ladyship lost caste considerably in consequence of the divorce action, and that she should now try to compel the man against whom she sanctioned the most abominable charges it is possible to conceive to resume cohabitation with her has certainly not raised her in the estimation of society. I hear that, even at the eleventh hour, a strenuous effort will be made to keep the case out of court.”

Bruce J was of opinion that this constituted contempt of a serious character. In fining the editor £50 he said that the comment:

“refers to a case which is pending in this Court, and which is to be tried by a special jury. In that case Lady Russell is a party, for she is the


129

Id, at 109.

130

Id.

131

See Borrie & Lowe, 29.

132

11 Times LR 38 (PDA Div (Bruce J) 1894).



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petitioner, and the paragraph reflects on her in a manner calculated to excite prejudice against her as such petitioner. It is calculated to prejudice any jury man who may read it.”133

In Re South Meath Election Petition,134 a writ of attachment was sought against the Rev Father John Fay, PP, of Summerhill, Co. Meath, alleging that, while addressing his congregation at Mass at Dangan, Co. Meath, he had said:

“Before I have an opportunity of meeting you again I shall be on my trial in Trim, with the other priests of the diocese and the Bishop, and I am glad of the opportunity of showing up the character of those men who will give evidence against me. We will expose again the scandal of the Divorce Court. These people, imbued with the devil, will pursue me to the end. I expect that. I am prepared for that. I tell you the devil will attack me; and they are possessed of the devil of impurity, the most frightful of all passions. Now, this is pure Parnellism. Is it not a glorious thing to put our Bishop, like a criminal, in the box, after 29 years of service and toil, and devotion for you? Now, report every word of this accurately, and put it in your Independent. Don't leave out one single word; for I'll prove that every witness that will come up against me is a black-dyed scamp. I never said I would kill you, or break your neck, or said you would go to hell. You may go there if you like. We will resume this in Trim ... They should not look upon him [the priest] as a mere man. If they did, they might have some prejudices against him, for all had shortcomings. The priest is the ambassador for Jesus Christ, and not like other ambassadors. They carried their Lord and Master with them, and when a priest was with the people the Almighty God was with them.”

The motion for attachment was brought on behalf of the petitioner, Joseph Dalton, grounded on the affidavit of Peter McCann, solicitor, who stated that he heard Father Fay make the above statement, and that he had immediately afterwards had caused an accurate note of what had been said to be taken down from his declaration, read over and corrected by him.

Father Fay, in his replying affidavit, stated that Mr McCann's report was inaccurate; that some of his parishioners who heard him preach confirmed this in his statement; that persons taking notes had been visiting his church and giving unfair reports of his remarks; that on the day in question he had been led to refer to these; that he had said nothing to intimidate any witness or calculated to defeat the ends of justice; that nothing could be further from his mind or intention than this; that the Parnellites in his parish were a mere handful; and that he had sought merely to warn his flock that position should


133

Id, at 39. See also Greenwood v Leather-Shod Wheel Co Ltd, 14 Times LR 241 (Chy Div, Stirling J, 1898) (laconic account of the nature of the contempt alleged), Howitt v Fagge, 12 Times LR 426 (QB Div; Pollock B and Bruce J, 1896).

134

30 LR Ir 659 (QB Div, 1892).



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not be used as an excuse for immorality, as he believed Parnellism was very often; and that he so spoke in discharge of his duty as their pastor; that what he had said was without any preparation, and without the remotest idea of affecting the petition or its result; that, while fully prepared to meet any charge made therein against him, he emphatically disclaimed any intention to act in contempt of the Court or to interfere with its processes; and that, if unwittingly he had offended, he tendered his apologies.

On the hearing of the motion, Father Fay appeared in person; repeated, in effect, the explanations contained in his affidavit; and, offering his fullest apologies, left the case in the hands of the Court.

The Queen's Bench Division135 first addressed the question of whether the language attributed to Father Fay had been proved to have been used. It held that it had, by “a gentleman in a respectable position, a solicitor ....136 The failure of the defendant to point to any specific machinery in the report and of his parishoners to support his denial weighed heavily with the Court.

Sir Peter O'Brien CJ said:

“Now the use of these words was clearly a contempt of Court within the meaning of all the authorities. Lord Hardwicke, many years ago, stated in Roach v Hall137 that there was nothing of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes before the cause is finally heard. Lord Hatherley, one of the most eminent of our modern Judges, adopted the opinion of Lord Hardwicke, and stated in Tichborne v Mostyn138: – 'Those who have responsibility cast upon them – this Court, and every tribunal which has to administer justice – are bound to protect every suitor from such an attempt to pervert the course of justice, and against that which can affect the minds of persons who might be willing to give evidence in the case, and may prevent them from coming forward...' I ask with great pain is this language not calculated to deter witnesses from coming forward? What does it convey? That this proceeding by petition is a polluted thing, that every connection with it is a contamination, and an endeavour to support it is a moral crime.”139

Sir Peter O'Brien, CJ continued:

“I refer to the language for a moment, and I must say for myself that I should prefer not to do so. He says:– 'Is not it a glorious thing to put our Bishop, like any criminal, in the box after 29 years of service


135

Sir Peter O'Brien CJ, and Harrison, Holmes and Madden, JJ.

136

30 LR IR, at 661.

137

2 Atk 469.

138

LR 7 Eq 55 (1867).

139

30 LR Ir, at 661–662.



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and toil, and devotion for you? Now report every word of this accurately and put it in your Independent. Don't leave out a single word, for I'll be there and I'll prove that every witness that will come up against me is a black-dyed scamp'. Is that not calculated to prevent the humble and impressionable Catholic of Meath from coming forward to give evidence? We know with what reverence the humble Catholic regards his pastor. And, then again he says:– 'they should not look upon him as a mere man ... The priest is the ambassador of Jesus Christ, and not like other ambassadors; they carry their Lord and Master about with them, and when the priest was with the people the Almighty God was with them'.

“What do these words mean? Do they not in effect assert that the Rev. John Fay, even in the action which is challenged by this petition, was the bearer of a divine commission; and that to gainsay the propriety of that action, when arraigned before a civil tribunal, was to go counter to the behests of the Almighty? This is the fair interpretation of the language used; and in my opinion there could be no more potent deterrent, and therefore no more clear 'contempt of Court' within the meaning which the law attaches to that expression.”140

This passage is of more general interest than might at first appear; for it raises the question of how religious and secular norms and ontologies should be resolved in the context of contempt. It is of the nature of religion that it makes bold claims. A priest could not conscientiously hold himself out as such and disclaim his divine authority and ambassadorship. Those who adhere to that religion will equally recognise and submit to that authority. An opponent in litigation will understandably feel that he cannot compete with this authority; yet has he any reason on this account to complain? If one has rank, may one not remind others within one's social group of that fact, under pain of being found guilty of contempt of court? Or is it a question of the manner in which one does this? Or of the educational level of those whom one addresses? Sir Peter O'Brien CJ appears to have attached some weight to the latter aspect, since he stated (as has been noted) in respect of an earlier passage:

“Is that not calculated to prevent the humble and impressionable Catholic of Meath from coming forward to give evidence? We know with what reverence the humble Catholic regards his pastor.”

If this factor is a predominant one, then it would appear that the Parish Priest of St. Stephen's Green, for example, might be free forcibly to assert divine authority and ambassadorship with considerably less apprehension of being imprisoned for contempt.

The Court sentenced the defendant to one month's imprisonment. The Chief


140

30 LR Ir, at 662.



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Justice commented:

“Never, I believe, on the eve of an important trial, and with reference to that trial, was language – and I say so with much pain – more reprehensible proved to have been used ....”141

(c) Prejudging merits of the action

Another way in which prejudice may be caused is by prejudging the merits of an action.142 In Re Finance Union; Yorkshire Provident Assurance Co v Publishers of the Review,143 an Irish paper with a small circulation in England published the following injudicious comment on current litigation in the English courts:

“A fierce battle is to be fought in the courts between the Yorkshire Provident Life Assurance Company and the Review. We never hesitate to back the winner, and in this case we must say 100 to 1 on the Review. The executive of the Yorkshire Provident must be abundantly lacking in foresight and wisdom. Whoever is to blame for advising this puny, weak, and mismanaged company to squander the savings of the people in courts of law has much to answer for. The result, in our opinion, to the Provident will be disastrous, and we would urge the officials to withdraw the action.”

The report of the judgments of Wills and Wright JJ is worth recording in detail. Wills J said that the question was not whether the paper was one which had any great circulation or influence, though no doubt the greater it had the worse it was made. But the fact that it was of small circulation or of an unimportant character did not make publications of this kind less reprehensible. It was the tendency of such articles to interfere with the administration of justice which was important, not, perhaps, so much on account of the particular case as with reference to the general principle that such attempts to influence or interfere with the course of justice were improper and ought not to be allowed. The substitution of trial by a preliminary court in the newspapers, when a trial by one of the regular tribunals of the country was going on, was bad for the suitors, bad for society at large; and there appeared to be on the part of some portion of the newspaper Press a great desire to substitute the new mode of trial – trial by newspaper – for the old mode of trial. For his part, however, he thought the old mode of trial was best, and more calculated to lead to just results. In the present case the comments went strongly to show that the plaintiffs had no case and would be the only sufferers, and were a strong attempt to interfere with the course of justice. It was a most reprehensible attempt to interfere with the course of justice.


141

Id, at 663.

142

See Borrie & Lowe, 129–130.

143

11 Times LR 167 (QB Div; Wills and Wright JJ, 1895).



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Wills J went on to say that it was not a case with which he should be disposed to deal severely. It was possible that the publisher in Dublin might have thought that he was at liberty to say what he thought proper of an action in England; but that was not a correct view; and if a party published a newspaper intended to circulate in England he ought to abstain from comments on any cases in the English courts, whether it circulated in England or not.

Wright J adopted a more moderate position. He doubted whether the court should go so far as to say that it ought to interfere on account of such publications where nothing more was shown than that they were reprehensible. The jurisdiction exercised by the courts in such cases was special and ought to be based on the necessity of securing a fair trial, and ought not be exercised except where there was a case made out showing that it was probable that the publication would substantially interfere with a fair trial.144

Wright J's approach seems preferable. It would be wrong to import into contempt proceedings with an international or interjurisdictional dimension a rule equivalent to that applying in defamation proceedings whereby liability is based on the dissemination of even a few copies within the court's jurisdiction.

(d) Publication of information as to trial strategy

It may also be prejudicial to publish the fact that the defendant has paid money into court.145 The effect of publication of pleadings in litigation is a matter of some slight uncertainty. It seems clear that pleadings may not be made “a vehicle for libel”146 by a litigant who uses his statement of claim (or defence) as a means of disseminating the libel. For a newspaper to publish the pleadings of one party but not the other may well be contempt147; but the converse is far from certain: the publication of the pleadings of both sides is “clearly ... not so likely to prejudice the trial as to publish just one party's pleadings”,148 but there can be no general principle that publication of both parties' pleadings is invariably a safe course of action: “every case must be judged on its own particular facts”.149

(e) Proximity of publication to time of trial of action

The courts will have regard to the time of publication of potentially prejudicial


144

See also Wilson v Collison, Re Johnson and Mitchell, 11 Times LR 376 (QB Div, Day and Wright JJ, 1895), Ex parte Green; In re Robbins, of the Press Association, 7 Times LR 411 (QB Div, Cave and Grantham, JJ 1891).

145

See Borrie & Lowe, 130–131.

146

Gaskell and Chambers Ltd, [1936] 2 KB 595, at 603.

147

See Chesshire v Strauss; In re Power O'Connor 12 Times LR 291, at 291 (QB Div, Day and Wright JJ, per Day J, 1896).

148

Borrie & Lowe, 133.

149

R v Associated Newspapers Ltd; ex p Beyers, 80 Sol J 247 (1936).



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material.150 If it is long before the expected date of the trial of the action this may well remove the sting of prejudice,151 but there is no absolute rule that a long period will inevitably excuse:

“Much must depend upon the context of the publication and the interest in the particular litigation. It is more likely, for example, that stringent comments about a libel action involving a national figure will be remembered than comment upon an action involving a relatively unknown figure. Secondly, there is a danger that the repeating of comments might produce a cumulative effect and are therefore more likely to prejudice the case, even if repeated early in the proceedings.”152

(f) Gagging writs

As Miller153 observes:

“Since defamation proceedings are routinely heard by juries it follows that there is a correspondingly high risk of a contempt being committed in relation to them. However, it has also been the case (and no doubt still is) that the law of contempt has been abused over the years by the issuing of 'gagging writs' which are intended to stifle further comment and exposure. For example, a newspaper may have spent many months investigating a particular scandal which is a matter of legitimate public concern. It may be the fraudulent manipulation of an insurance company, a rigged 'antique ring', football bribery, or suspected corruption in the police force, in awarding local government contracts, or in other areas. Such investigations have not infrequently provided information which has led to subsequent prosecutions and convictions....

A[n] ... immediate problem will arise if the newspaper publishes one of a series of projected articles and this is followed by the issue of a writ for libel. To require the Press in general, and the investigating newspaper in particular, to desist thereupon from further comment on the ground that it might prejudice the libel action would mean that a rogue had effectively purchased immunity from exposure at a very small cost. The immunity might, moreover, continue over a long period if the opportunities for delay afforded by the civil process were cynically manipulated to 'gag' the Press .... On the other hand, the person issuing the writ may not in fact be a rogue. He may genuinely intend to vindicate his reputation by proceeding with his action as soon as possible. If this is so, any future disparaging comments may be just as likely to prejudice the fair trial of the action as in any other case


150

See Borrie & Lowe 133–135.

151

See Brych v The Herald and Weekly Times Ltd, [1978] VR 727.

152

Borrie & Lowe, 134.

153

Miller 247–248.



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involving a jury. The problem lies in distinguishing between the two situations, and it is a problem to which there is no ready solution.”

In Ireland, the courts in a number of decisions154 have addressed the question of when an injunction is appropriate in relation to defamation. In Sinclair v Gogarty,155 the plaintiffs sought an injunction restraining further publication of a book which contained imputations of sexual impropriety156 against them (including the charge that one of them, the proprietor of an antique shop, “sought new mistresses more highly than old masters”). In the High Court, Hanna J, granting the injunction, said:

“The ... most important question on this application is whether, under these circumstances, an interlocutory injunction pending the trial should be granted. The Courts have always regarded this procedure as falling under a delicate jurisdiction in libel actions, to be exercised only in special circumstances and only in clear cases. Would it be just or fair on the evidence before me that the publication of these injurious passages in the book should continue for months until this action can be tried? On the authorities, the highest test against the plaintiff's application is whether, if a jury found that these passages were not libellous, such a verdict could stand. I am satisfied, as there is no special defence suggested, such as appear in some of the cases on the subject, that, if the matter came before a jury on the evidence as it stands before me, they could not, as reasonable men, come to any other conclusion than in favour of the plaintiff, and if any other verdict were given, I am of the opinion that it would be set aside as unreasonable. This may not be the only test applicable in the case of the special nature of the one under consideration, where personal character is attacked so as to cause serious, immediate and continuing loss of reputation. I am of opinion that the loss of reputation to the plaintiff by the continued publication of the libellous passages in this book could not be properly compensated by damages alone.”157

In the Supreme Court appeal, where Hanna J's order was affirmed, Sullivan CJ stated:

“I realise that in granting an interlocutory injunction to restrain the


154

Sinclair v Gogarty [1937] IR 377 (Sup Ct, aff'g Hanna J), Dunlop Rubber Co, [1920] 1 IR 280 (Powell J), Gallagher v Tuohy, 58 ILTR 134 (High Ct, Murnaghan J, 1924), Cutten v Stanley [1926] IR 73 (Sup Ct, 1925), “The Derry Journal Ltd v Rialto Theatres Ltd, 64 ILTR 87 (NI Chy Div, Andrews LJ, 1930), Fitzgerald v Clancy [1902] 1 IR 207, Scott v Eason & Sons and Batsford Ltd, Irish Times, 9 August 1980, p8 Dickson (Alex), Sons Ltd v Dickson (Alexander) & Sons [1909] 1 IR 185 (CA), Hammersmith Skating Rink Co v Dublin Skating Rink Co, IR 10 Eq 235 (VC Ct, Chatterton VC, 1876).

155

Supra.

156

The details of the libel are not set out in the Report, but are discussed by Ulick O'Connor, Oliver St John Gogarty 299–308 (1981 ed).

157

[1937] IR, at 381.



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publication of a libel the Court is exercising a jurisdiction which has been described as a jurisdiction of a delicate nature.

The principle upon which the Court should act in considering such applications ... is this, that an interlocutory injunction should only be granted in the clearest cases where any jury would say that the matter complained of was libellous, and where if the jury did not so find the Court would set aside the verdict as unreasonable. It is unnecessary for me to decide whether that principle is applicable in all cases. I accept it as applicable in the present case.”158

In Gallagher v Tuohy,159 the plaintiff sought an interlocutory injunction to restrain the dissemination of material charging him with gross professional incompetence. Murnaghan J declined to make such an order on the basis that, since the defendants pleaded justification, he could not prejudge the issue and decide that the plea of justification was erroneous.

As regards the defence of justification, the case of Cullen v Stanley160 provides an interesting discussion of its possible limitations. The plaintiff, a parliamentary candidate for the Irish Labour Party, sought an interim injunction against the publication of an accusation that he had acted as a “scab” some years previously. The Supreme Court held that he was entitled to an interim injunction by virtue of statutory provisions161 designed to curb electoral abuses. O'Connor J, alone among the Judges, held that the plaintiff would be entitled to an injunction at common law. He noted that the alleged libel involved the “most improbable”162 accusation that the plaintiff has been released from an industrial school in order to act the part of a strike-breaker. He added:

“Let us see, then, what is the evidence which the defendant has presented to the Court to enable it to see whether there is any foundation for the allegation complained of. He gives us nothing but the baldest affidavit, in which he merely states that the whole of the allegations complained of are true in substance and in fact, and that he shall be able to prove the same at the trial by subpoenaing witnesses and by cross-examination of the plaintiff. There is no statement that at the time he published the defamatory matter he had any information to go upon, or has even now any such information. In fact the affidavit is consistent with this – that having made the statement the defendant is now looking round for materials for justification. That is not the way to satisfy the Court that the defendant is in a position to sustain a plea


158

Id, at 384, Cf Dunlop Rubber Co, [1920] 1 IR 280 (Powell J). See also “The Derry Journal” Ltd v The Rialto Theatres Ltd, 64 ILTR 87 (NI Chy Div, Andrews LJ 1930).

159

58 ILTR 134 (High Ct, Murnaghan J, 1924).

160

[1926] IR 73 (Sup Ct, 1925).

161

Prevention of Electoral Abuses Act 1923, section 11(5) (no. 38). Cf In the Matter of Thomas M Kettle, 40 ILTR 234 (High Ct, KB Div, 1906).

162

[1926] IR, at 85.



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of justification, or has reasonable grounds for pleading it.”163

Two more recent important developments, both involving unreported decisions, should be noted. In Agricultural Credit Corporation v Irish Business, on 1 August 1985, O'Hanlon J granted an interim injunction, in camera, restraining publication of an article which the plaintiff alleged was defamatory of it. For a period of two days, an order prohibiting the media from publishing the fact that the injunction had been made held sway. Whether there was a statutory and constitutional basis for this order has given rise to some controversy.164

In X v RTE,165 the plaintiff sought an injunction restraining RTE from naming him as a person who had been involved in the Birmingham bombing of 1974, in a television programme due to be published that evening. His affidavit stated that he was informed and believed it to be true and his name was to be thus mentioned in the programme. He stated that such assertion was completely untrue and added:

“Such a publication would not only defame me but also expose me to the risk of personal violence by persons excited by animosity against me. I do not believe that damages would be a sufficient remedy if the programme were broadcast.”

The plaintiff's solicitor, in an affidavit, stated that she had received instructions from the plaintiff the previous evening, that she had telephoned RTE and that there was nobody there who could deal with the particular matter. At 9.50 on the morning of the hearing she had sent a letter by fax to RTE in which she indicated her belief that her client was going to be named as one of the bombers in the forthcoming programme. She had asked for an undertaking that the programme broadcast would not include any such reference and said that in the absence of an undertaking she must assume that RTE intended to show the programme with defamatory matter and that she would be forced to act accordingly. She also asked for permission to look at the programme.

Permission was not granted. She received a letter, before 11.00 a.m., in which RTE stated that it found it “impossible” to give the undertaking in her letter.

Costello J refused the plaintiff's application on two grounds. Firstly, he was not satisfied, having regard to the plaintiff's failure to name the person who had informed him that his name was going to be used as suggested in the programme, that there was sufficient proof of an apprehension of defamation; secondly, that the plaintiff's delay in moving with regard to an ex parte


163

Id.

164

See Casey, 454–455, Boyle & McGonagle, para 5.37.

165

Sup Ct 27 March 1990, affirming High Ct Costello J, 27 March 1990, Irish Times, 28 March 1990.



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application disentitled him to relief.

The Supreme Court affirmed. Finlay CJ stated that he understood the general principle applicable to injunction applications in regard to the publication of defamatory matter to be that if a defendant indicated an intention in the proceedings to justify the matter complained of and provided some substantial grounds to satisfy the Court that he had a reasonable chance of doing so, then, ordinarily, the publication would not be restrained. That general principle seemed to him to make it absolutely essential that, in regard to a publication, the precise time and date of which had been publicly notified more than a week in advance, a plaintiff seeking ex parte an injunction against publication would have to have compelling reasons indicated to the Court why he had not moved earlier than on a time scale which made it impossible for the defendant to be heard.

The Chief Justice stated that he understood from counsel that an alternative application made in the High Court had been that short service might be served on the defendant but, having regard to the nature of the defence which might be put into such an application if it were in the interlocutory form and the necessity for the plaintiff to have an opportunity to reply, even at short service from that afternoon to the evening would not, in his view, have been feasible or practical.

In these circumstances, Finlay CJ preferred to refuse the order on the basis of delay. He added:

“There are two conflicting constitutional questions which arise here. One clearly is the question of the right to citizens to express and have views and the giving of information and views to them and the other is the protection of the plaintiff's good name. In my view there are not grounds for interfering having regard to the delay.”

In a short concurring judgment, McCarthy J stated that, in his opinion,

“the Constitutional guarantee of the vindication of the good name of every citizen must be read in the context of the constitutional guarantee of freedom of expression. That good name can be vindicated in damages but a restraint on freedom of expression cannot be similarly remedied.”



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(g) Cases where there is no jury

In England it has for long been accepted that, in cases where there is no jury, the risk of influencing trial (or appellate) judges is slight indeed.166 As Buckley J said in Vine Products Ltd v Green167:

“although I suppose there might be a case in which the publication was of such a kind that it might even be thought that it would influence the mind of a professional judge, it has been generally accepted that professional judges are sufficiently well equipped by their professional training to be on their guard against allowing any such matter as this to influence them in deciding the case.”

Although judges may be virtually immune from influence by publications, witnesses may well not be similarly impervious to such influence. They may be deterred from giving evidence or, if they do give evidence, it may be affected by what the witnesses have read or heard. Thus, in cases tried by judges alone, it may for this reason be contempt to issue a publication criticising a witness,168 or even the parties.169 A publication that prejudges the merits of the case may have a similar effect on witnesses.170

(h) Pressure on witnesses and others

The courts recognise that trade warnings to third parties, before or during litigation, designed to protect a right to intellectual property from infringement should not be characterised as contempt, provided they do not seek to enter into a detailed decision of the merits of the litigation against the defendant.171

As regards advertisements seeking to encourage witnesses to come forward,


166

See Borrie & Lowe, 139 ff, Grimwade v Cheque Bank Ltd, 13 Times LR 305, at 306 (Chy Div, Kekewich J, 1897), Re William Thomas Shipping Co Ltd, HW Dillon & Sons Ltd v The Co, [1930] 2 Ch 368, at 373, Vine Products Ltd v Queen, [1966] Ch 484, at 496, Re F (otherwise A) (Publication of Information), [1977] Fam 58, at 88, AG v Times Newspapers Ltd, [1974] AC 273, at 298, Schering Chemicals Ltd v Falkman Ltd, [1982] 1 QB 1, at 29.

167

[1966] Ch, at 496. In the criminal context see Cullen v Toibin, [1984] ILRM 577, discussed in detail earlier in the chapter.

168

See Borrie & Lowe, 140 and the cases there cited.

169

See id, 140–141, Re Pall Mall Gazette, Jones v Flower, 11 Times LR 122 (Chy Div, 1894), where Kekewich J (at 123) referred to the risk of witnesses coming to court with their minds prejudiced as a result of what had been published regarding the defendant.

170

See Borrie & Lowe, 141–143, Fielden v Sweeting, 11 Times LR 534 (Chy Div, North J, 1895), Suprrell v De Rechberg, 11 Times LR 313 (PDA Div, Sir Francis Jeune P, 1895). In some instances the court has gone so far as to intimate that an intention to influence the outcome of the proceedings would be sufficient to constitute contempt even in the absence of an objective likelihood of such outcome: see, e.g., Birmingham Vinegar Brewery v Henry, 10 Times LR 586, at 586 (QB Div, Wills and Vaughan Williams JJ, per Wills J, 1894).

171

See Borrie & Lowe, 143–145, Carl-Zeiss Stiftung v Rayner and Keeler Ltd, [1960] 3 All ER 289, Easipower Appliances Ltd and Frederick Williams (Appliances) Ltd v Gordon Moore (Electrical) Ltd, [1963] RPC 8.



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the courts have adopted a somewhat indulgent approach: even if they offer a reward, they will constitute contempt only if they create a real risk of prejudice.172

For a publication to put pressure on a party to desist from pursuing or defending pending litigation can amount to contempt.173 The view formerly commanding general support in England174 was that such pressure was prima facie objectionable; in the Sunday Times175 case, however, this orthodoxy gave way to divided views, and the judgment of the European Court of Human Rights in this litigation176 favoured an approach which would protect fair and reasonable criticism, temperately expressed, from the shadow of contempt.

(i) Publications pending appeal

Publications pending appeal are not stringently policed: if they are expressed in fair and temperate terms they are most unlikely to constitute contempt.177 It is, however, conceivable that in some cases where a new trial is likely to be ordered, prospective witnesses (whether or not they gave evidence in the first proceedings) might be prejudiced or deterred; neither should one overlook the possibility of improper influence being brought upon a party to desist from prosecuting or defending the appeal.

As regards defences, it seems that the public interest will not “trump” considerations of fairness in relation to the trial of civil proceedings. However, where matters of public interest are discussed in a publication it will not be contempt if this “incidentally and unintentionally”178 creates a real risk of prejudice to pending civil proceedings.


172

See Borrie & Lowe, 145, Butler v Butler, 13 PD 73 (1888).

173

See Borrie & Lowe, 145–149. See also AG v Hislop [1991] 1 All ER 911 (CA, 1990).

174

See, e.g. Vine Products Ltd v Green, [1966] Ch 486, at 496.

175

[1974] AC 273. See Borrie & Lowe, 146–148.

176

(1979) 2 EHRR 245, at 278, paras 62–63.

177

See Borrie & Lowe, 154.

178

Id, 157. Cf Ex p Bread Manufacturers Ltd., Re Truth and Sportsman Ltd, 37 SR (NSW) 242 (1937), which has been mentioned earlier in the chapter.



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CHAPTER 5: ACTS, OTHER THAN PUBLICATION, WHICH INTERFERE WITH THE COURSE OF JUSTICE

“The tricks and turns by which justice may be obstructed or perverted are so numerous and varied, and the ingenuity of mankind is so constant, that it is impossible to define in a comprehensive way, or rather to delimit, the circumstances under which a contempt of court by the obstruction of justice may be committed, and no Judge or Court has ever presumed to lay down any such limitation.”1

In this chapter2 we consider acts, other than publication, which interfere with the course of justice. Many of these acts may constitute criminal offences in their own right. The first part of the chapter deals with the different persons who can be interfered with. The second part addresses general principles of liability. Next, there is the reference to the circumstances in which abuse of the court's process can constitute contempt. Finally, other miscellaneous modes of committing contempt of this category are mentioned.

1. CATEGORIES OF PERSONS INTERFERENCE WITH WHOM CONSTITUTES CONTEMPT

A. Witnesses3

(1) Types of interference

A wide variety of conduct that interferes with a witness may constitute contempt. Clearly actual violence or the threat or violence can do so. Thus,


1

In re MM & HM, [1933] IR, at 341 (Sup Ct, per Johnston J). See also id, at 314 (per Kennedy CJ).

2

Our structure of analysis is derived from Borrie & Lowe, ch 10.

3

See id, 268–285.



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in Moore v Clerk of Assize, Bristol,4 where a fourteen-year old girl, who had given evidence in a case where men had been charged with affray, was reproached and threatened by the brother of one of them, the English Court of Appeal upheld a three-month sentence of imprisonment for contempt. Lord Denning MR said:

“The court will always preserve the freedom and integrity of witnesses and not allow them to be intimidated in any way, either before the trial, pending it or after it .... It is a contempt of court to assault a witness after he has given evidence; it is also a contempt of court to threaten him or put him in fear, if it is done to punish him for what he has said.”5

Attempting to induce a witness not to attend the court may constitute contempt. In In re Kelly and Deighan,6 Costello J held that such conduct amounted to an in facie contempt. As we note in the chapter on in facie contempt, this may be extending the boundaries of that category of contempt rather widely.

The making of a payment for the attendance of a witness is permissible but considerable doubts attach to the offering or making of a payment to witnesses where the sum to be paid is conditional on there being a conviction or is to be increased in that event. In England the matter of payments to witnesses has given rise to much discussion in relation to the Moors murder trial in 1966, the Thorpe trial in 1979 and the “Yorkshire Ripper” trial in 1981.7 Certainly the damaging effects payments may have on the outcome of trials is a matter worthy of note. In Ireland, our courts have yet to address the question whether payments of this type constitute contempt. The answer would seem to be that a conditional payment, or one to be escalated on conviction, can well constitute contempt. It might be thought that merely paying a witness to talk exclusively after a trial to one newspaper or television or radio station would not constitute contempt; nevertheless no blanket immunity can be guaranteed since the making of such a contract, in particular circumstances, might amount to an implicit encouragement to alter evidence, both parties being aware that, without a conviction (or other particular outcome), the witness's “box office” potential after trial, in terms of interest for readers, listeners, or viewers, is likely to be severely depleted.

(2) Mens rea

As regards mens rea, there is no clear Irish authority. In England, in Re A-G's Application, AG v Butterworth8 the Court of Appeal was divided. Lord


4

[1972] 1 All ER 58 (CA, 1970).

5

Id, at 59. See also R v Martin, 5 Cox 356, at 359 (per Pigot CB, 1848).

6

[1984] ILRM 424 (High Ct. Costello J, 1983).

7

See Borrie & Lowe, 272–274, Miller, 210–212.

8

[1963] 1 QB 696.



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Denning MR favoured a test requiring an intent to deter, influence or punish a witness in respect of his evidence. Thus, intimidation of a witness which lacked this intent would not be contempt. Donovan LJ, however, considered that the test was one of inherent likelihood of interference with the proper administration of justice rather than necessarily involving an intent to so interfere. It seems that, at all events, the alleged contemnor must have known that the object of the threat was a witness or a potential witness.9Borrie & Lowe,10 referring to the difference of opinion between Lord Denning MR and Donovan LJ, express the view that:

“[t]he different approaches will not often produce different results since most impugned acts will be accompanied by an intention to influence witnesses but one example where the different approaches could be significant is where an action is brought against a newspaper for paying witnesses for their story, the amount being contingent on the verdict. In such a case it is doubtful that an editor would have intended to influence the witness but the effect of payment could be thought to interfere with the due course of justice.”

If Lord Denning MR's test were modified to embrace cases of recklessness as well as of intention, then the gap between his test and that of Donovan LJ in the context of cheque-book journalism would not be so significant. It would be a singularly naive newspaper editor who could claim that the possibility of the witness's being influenced by the payment did not cross his or her mind, however fleetingly.

(3) Punishment of witnesses
(a) Mixed motives

In relation to cases where the contempt consists of punishing a witness for having given the evidence he did in court, some important issues of principle have arisen. Understandably, after litigation the motives of those who seek to take reprisals against a witness may be mixed. The desire to punish may be accompanied by other desires, such as to having nothing more to do with a person who is now no longer trusted as a loyal employee or “one of the boys”. In such circumstances is the court to follow the model of the tort of conspiracy and enquire whether the desire to punish was the predominant


9

Re B (JA) (an infant), [1965] Ch 1112, at 1122 (Cross J). See Borrie & Lowe, 275.

10

Borrie & Lowe, 275.



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motive?11

In Butterworth,12 Lord Denning MR thought not. Referring to the conduct in which an alleged contemnor engages, he said:

“If it is done with the predominant motive of punishing witnesses, there can be no doubt that it is a contempt of court. But even though it is not the predominant motive, yet nevertheless, if it is an actuating motive influencing the step taken, it is, in my judgment, a contempt of court. I do not think the court is able to, or should, enter into a nice assessment of the weight of the various motives which, mixed together, result in a victimisation of a witness. If one of the purposes actuating the step is the purpose of punishment, then it is a contempt of court in everyone so actuated.”

(b) Publicity of punishment

Another question relating to punishing witnesses concerns the matter of publicity of the punishment. If a witness is assaulted or otherwise punished in private, with no one else being or becoming aware of this fact, how does this damage the administration of justice in any way?13 The answer is surely that even private conduct does indeed damage the administration of justice, by deterring the witness from giving evidence in future cases; moreover, as Borrie & Lowe14 point out, if it were known that the law did not treat private punishment as a contempt, this would be “likely to operate as a general


11

Cf Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, at 445 (HL (SC), 1941) where Viscount Simon LC counselled that:

“it is to be borne in mind that there may be cases where the combination has more than one 'object' or 'purpose'. The combiners may feel that they are killing two birds with one stone, and even though their main purpose may be to protect their own legitimate interests notwithstanding that this involves damage to the plaintiffs, they may also find a further inducement to do what they are doing by feeling that it serves the plaintiffs right. The analysis of human impulses soon leads us into the quagmire of mixed motives, and even if we avoid the word 'motive', there may be more than a simple 'purpose' or 'object'. It is enough to say that if there is more than one purpose actuating a combination, liability must depend on ascertaining the predominant purpose. If that predominant purpose is to damage another person and damage results, that is tortious conspiracy. If the predominant purpose is the lawful protection or promotion of any lawful interest of the combiners (no illegal means being employed), it is not a tortious conspiracy, even though it causes damage to another person.”

See also Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc., [1989] 3 All ER 14, at 43–44 (CA), Taylor v Smyth, Sup Ct, 5 July 1990.

12

[1963] 1 QB, at 723.

13

In Chapman v Honig, [1963] 2 QB 502 (CA), Pearson LJ thought that private victimisation should not constitute contempt. The majority (Lord Denning MR and Davies LJ) thought otherwise. See Borrie & Lowe, 279.

14

Borrie & Lowe, 279.



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deterrence against giving evidence”.

(c) Compensation for punishment

Whether witnesses who have been victimised can sue for damages in tort is a question that has greatly exercised English lawyers, in the wake of a controversial decision of the Court of Appeal.15 Of course, if they are physically attacked or threatened they may sue for battery,16 assault,17 or the infliction of emotional suffering.18 But what is the position where a contemnor, by his conduct which victimises the witness, acts in a manner that is “lawful”, in the sense that it is independently authorised by a contract between him and the witness? In Chapman v Honig,19 a subpoenaed witness gave evidence in a trespass case brought against his landlord. The following day the landlord served notice to quit on the witness, his sole purpose being to punish him for having given evidence. This, it was conceded, amounted to a contempt. The English Court of Appeal, by a majority,20 held that this did not entitle the tenant to sue in damages. The majority were of the view that the notice to quit, being “a lawful exercise of a contractual right”,21 could not at the same time be a tort. Lord Denning, MR, dissenting, perceived that this proposition rested on doubtful analytic foundations. His own analysis lacks intellectual depth but points in the direction of what may be the preferable solution:

“The principle upon which this case falls to be decided is simply this. No system of law can justly compel a witness to give evidence and then, on finding him victimised for doing it, refuse to give him redress. It is the duty of the court to protect the witness by every means at its command, else the whole process of the law will be set at naught. If a landlord intimidates a tenant by threatening him with notice to quit, the court must be able to protect the tenant by granting an injunction to restrain the landlord from carrying out his threat. If the landlord victimises a tenant by actually giving him notice to quit, the court must be able to protect the tenant by holding the notice to quit to be invalid. Nothing else will serve to vindicate the authority of the law. Nothing else will empower the judge to say to him: 'Do not fear. The arm of the law is strong enough to protect you'.”22

This discussion of principle draws useful analogies from the torts of intimidation, inducing breach of contract and conspiracy; but it has its own difficulties. First, although an injunction may be obtained against the


15

Chapman v Honig, supra.

16

Cf McMahon & Binchy, 402–405.

17

Cf id, 405–406.

18

Cf id, 407–409, Prosser & Keeton on Torts, 54–56 (5th ed, 1984).

19

Supra.

20

Pearson and Davies LJJ, Lord Denning MR dissenting.

21

[1963] 2 QB, at 521 (per Pearson LJ).

22

Id, at 513.



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commission of the tort of intimidation, a person who successfully resists a threat will not be entitled to sue for damages.23 Thus, in Whelan v Madigan,24 where a landlord resorted to “outrageous behaviour”25 towards his tenants, including telephoning one of them (a woman) and breathing but not saying anything when she answered, Kenny J held that he was not guilty of intimidation, since the intimidation had not been successful. Far from leaving the property, the tenants had united against the defendant.

A second difficulty with Lord Denning MR's analysis is that, save for the doubtful analogy with intimidation, the only rationale for imposing liability is that “[n]othing else will serve to vindicate the authority of the law”. To base the justification for the establishing of tortious liability on such an indirect purpose, rather than on the claim to justice for the victim in his or her own right is unfortunate.

Three possible bases of liability may be suggested in relation to a person who, by an act constituting a contempt, victimises a witness where the act is in the purported exercise of a contractual (or other) right. The first is the nascent tort of intentional interference with economic interests.26 In Merkur Island Shipping Corporation v Laughton,27 the House of Lords accepted that there was such a generic tort, and this has been followed by the slow unfolding of its underlying principles.28 In Ireland there is a good foundation for the tort in the decisions of Cooper v Millea29 and Riordan v Butler.30 In Pine Valley Developments Ltd v Minister for the Environment,31 the Supreme Court may be considered to have adopted a neutral position in that Finlay CJ declined to express any view as to the correctness of the principle enumerated by the High Court of Australia in Beaudesert Shire Council v Smith,32 to the effect that:

“... it appears that the authorities cited do justify a proposition that, independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other.”


23

McMahon & Binchy, 574, Becton, Dickinson Ltd v Lee, [1973] IR 1, at 30–31 (Sup Ct, per Walsh, J).

24

[1978] ILRM 136 (High Ct, Kenny J).

25

Id, at 142.

26

See McMahon & Binchy, 580–581, Carty, Intentional Violation of Economic Interests: The Limits of Common Law Liability, 104 LQ Rev 250 (1988), Burns, Tort Injury to Economic Interests: Some Facets of Legal Response, 58 Can Bar Rev 103 (1980), Elias & Ewing, Economic Torts and Labour Law: Old Principles and New Liabilities [1982] Camb LJ 321.

27

[1983] 2 AC 570, at 608 (HL (Eng), per Lord Diplock).

28

Cf Carty, supra, Lonrho plc v Fayed, [1989] 2 All ER 65 (CA); Associated British Ports v Transport and General Workers' Union, [1989] 3 All ER 796 (CA).

29

[1938] IR 749 (High Ct, Gavan Duffy J).

30

[1940] IR 347 (High Ct, O'Byrne J).

31

[1987] ILRM 747 (Sup Ct, 1986).

32

120 Comm LR 145, at 156 (1969).



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The Chief Justice favoured this approach because the plaintiffs had disclaimed any reliance on Beaudesert. The Court did not address the issue of the scope of the tort of intentional interference with economic interests.

In Bula Ltd v Tara Mines Ltd (No. 2),33 in interlocutory proceedings,34 Murphy J declined to take a position as to the scope of this tort.

If the tort is part of Irish law, then the question arises as to whether it embraces contemptuous victimisation of the type that arose in Chapman v Honig.35 It may be premature to address the precise content of a tort whose principal features have yet to be adumbrated by an Irish court. Nevertheless it is scarcely rash to suggest that conduct of this nature will be recognised as coming within the scope of the tort. Whether this is because it is capable of being characterised as an “unlawful act”36 which is “in some sense directed against the plaintiff or intended to harm the plaintiff”,37 or whether the courts adopt conceptual scaffolding akin to the “proximity” lexicon of negligence,38 it is easy to envisage that liability would be imposed in such a case.

The second basis of liability for such conduct may be that of wrongful interference with the plaintiff's constitutional rights.39 In a situation such as arose in Chapman v Honig40 these rights might be identified as including property rights, but rather than requiring liability to depend on the contingent consequences of conduct of this nature, the Irish courts may recognise that in all cases of contemptuous victimisation of a witness, there is an interference with the plaintiff's right and obligation to participate in the judicial process as a witness. To let him or her suffer for having done so, with no legal redress, may be considered an unconstitutional infringement of his or her rights as a participant in the legal process – which the public policy of the State clearly endorses. It may also be considered an aspect of the concept of “contempt of the courts”, which has been formulated by the Supreme Court, though whether such a rationale would warrant the imposition of a remedy for damages in addition to the exercise of the court's contempt jurisdiction is not clear.


33

[1987] IR 95 (High Ct, Murphy J).

34

As to which see R Byrne & W Binchy, Annual Review of Irish Law 1987, 167–169, 339 (1988).

35

Supra.

36

The approach favoured by Lord Diplock in Merkur Island, supra.

37

Lonrho plc v Fayed, [1989] 2 AII ER 65, at 69 (CA, per Dillon LJ).

38

See McMahon & Binchy, ch 6 and p581.

39

See, e.g, Meskell v CIE [1973] IR 121, Murtagh Properties Ltd v Cleary, [1972] IR 330, Keaney v Minister for Justice [1986] IR 116, McHugh v Commissioner for Garda Siochana [1986] IR 228, Kennedy v Ireland, [1988] ILRM 472 (High Ct, Hamilton, P, 1987), Hayes v Ireland, [1987] ILRM 651, Conway v INTO, Sup Ct, 14 February 1991. As to the relationship between interference with Constitutional rights and tortious liability, see Hanrahan v Merck Sharp and Dohme (Ireland) Ltd, [1988] ILRM 629 at 636 (Sup Ct), and McMahon & Binchy 9–11.

40

Supra.



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The third basis for imposing liability would be that of an entirely new, innominate tort41 (such as those in Rylands v Fletcher42 or Wilkinson v Downton,43 for example). The advantage of this approach is that the courts would not have to squeeze the liability into the confines of an established, nominate tort where this would do violence to the principles and policy underlying the tort.

Whatever approach may ultimately be favoured, it is as well to scotch the assertion in Chapman v Honig that conduct which is “a lawful44 exercise of a contractual right” cannot at the same time be “unlawful as being tortious” in constituting contemptuous victimisation. It all depends what one means by “unlawful”: to fail to be conscious of the ambiguities of the term will lead to error. Conduct may correctly be described as lawful in one respect and unlawful in another. There is no logical contradiction in this. Giving a party to a contract notice to quit may be lawful in the sense that it is “permitted” by the contract; but permission here necessarily relates only to specifically contractual norms.

Tort law operates in a separate legal order. Inevitably, of course, there is a close mutual regard and overlap between tort and contract. Otherwise our law would be in chaos. But the law of tort in no sense has to give “right of way” to contract. Such principles as those of consent and voluntary assumption of risk provide the bridge between tort and contract. Thus, the mere fact that conduct is contractually permissible does not inevitably render it immune from tortious liability, even as between the parties.

It is also worth noting that, in certain torts, the question of the defendant's motive will be an important factor in determining whether what he did was lawful. This is clearly so in relation to nuisance,45 where an act which may seem to be incidental to the ordinary, every day use of one's property may be inspired by an unneighbourly motive. Conduct which is, as it were, prima facie lawful is rendered tortious by the actor's bad faith. It is useful here to note the Irish decision of Boyle v Holcroft46 in 1905. The defendant was the


41

See McMahon & Binchy, 16.

42

LR 3 HL 330 (1868), affirming LR 1 Ex 265 (1866). See McMahon & Binchy, ch 25.

43

[1897] 2 QB 57.

44

Miller, 362, does not concede that the giving of the notice to quit was lawful:

“Contractual rights may be exercised, as Pearson LJ put it [in Chapman v Honig, [1963] 2 QB, at 520], 'for a good reason or a bad reason or no reason at all'. But surely it is a wholly different proposition to say that what would otherwise have been a legitimate exercise of a contractual right is still lawful as between the parties notwithstanding that it constitutes a contempt of court.”

45

See Christie v Davey [1893] 1 Ch 316 (North J, 1892), Hollywood Silver Fox Farm Ltd v Emmett, [1936] 2 KB 468, [1936] 1 AII ER 825, Fridman, Motive in the English Law of Nuisance, 40 Va L Rev (1954), Ames, How Far an Act may be a Tort because of the Wrongful Motive of the Actor, 18 Harv L Rev 411 (1905), Gutteridge Abuse of Rights, 5 Camb L J 22 (1933).

46

[1905] 1 IR 245 (Barton J).



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judicial tenant of the plaintiff. He had been imprisoned for fishing on the plaintiff's fishery and his brother had been fined for a similar offence. He thereafter erected a wire paling which obstructed the plaintiff in the exercise of his exclusive right of fishing, and the plaintiff successfully sought an injunction against him for trespass on, and obstruction to, the fishery. Barton, J said:

“I take it that, as a general rule, so long as the tenant is bona fide and reasonably managing and using the lands, the owner of the fishing rights must be content to exercise his rights upon the lands in the condition in which they happen to be from time to time. On the other hand, the tenant must not, under cover of farm user or management, unreasonably or mala fide cause or maintain an obstruction to the exercise of the right of fishing, and may be restricted by injunction from doing so .... The defendant having adopted a kind of paling which prevents the exercise of a legal right, questions of motive and reasonableness become legitimate subjects of inquiry.”

Another subsidiary issue arising in Chapman v Honig47 was of a practical nature: if the landlord's notice to quit was to be condemned as tortious on account of the fact that it constituted a contempt, for what period would a notice in such circumstances be tainted with the contempt? And how would the court be able to know the point beyond which the motivation to victimise had lost its potency so as to render efficacious a subsequent exercise of the contractual right to give a notice to quit? Pearson LJ found this problem insurmountable; but Lord Denning MR, dissenting, resolved it by placing on the landlord the onus of showing that the notice to quit was free from taint. This seems a reasonable solution. No doubt evidentially the problem may on occasion prove difficult to resolve but evidential difficulties are inherent in the process of adjudication and should not generally, by reason of the fact of their difficulty, be a reason for not adopting a principle which otherwise commends itself.48

In this context, it is worth noting that the mere fact that a wrongdoer can subsequently accomplish his goal lawfully, and thus reduce the plaintiff's compensatory damages to the minimum, is not a reason for the court's refusing to award any damages.49 Even if the tort in question does not compensate dignitary interests there is always the possibility of some other damage, however small, having been suffered, as well as the real possibility that an award of exemplary damages will be in order.50


47

Supra.

48

Cf Glover v BLN Ltd (No 2), [1973] IR 432, at 441–442 (High Ct, Kenny J, 1968). Note also McCarthy, J's approach in O'Byrne v Gloucester, Supreme Ct, 3 November 1988.

49

Cf Garvey v Ireland, [1981] ILRM 266 (High Ct, McWilliam J).

50

Cf Conway v INTO, Sup Ct, 14 February 1991.



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B. Jurors

In R v Martin,51 Pigot CB observed:

“It is important that there should be no improper interference with the administration of justice; and above all, that juries should be protected from every interference with them in reference to the discharge of their important and sacred duties; they form a portion of the tribunals by which the law of the land is administered.”

Judges have authority for protecting the proceedings which are essential to the administration of justice; but jurors, with infinitely greater risk, have no protection of their own, and must depend for it upon what the law affords them.52

Thus, intimidating a member of a jury before or during a trial, or punishing him or her for having come to a particular verdict will constitute contempt (as well as a criminal offence in certain cases, such as embracery or conspiracy to prevent the course of justice53).

In R v Martin, the brother of a person who had just been convicted of an offence54 under the Crown and Government Security Act went immediately to the house of the foreman of the jury and challenged him to mortal combat “for having bullied the jury”. The foreman denied that he had done so, declined the challenge and had the man charged. In response to an abject apology by the contemnor, the Court committed him to prison for a month. Pigot CB said:

“It has been found necessary in the course of these proceedings to protect jurors from all interference with them in the discharge of their duties, from all attempts to assail their characters or reputations, and from the imputation of motives other than those which should actuate men having such solemn and important duties to discharge: if it is necessary to guard their reputation, how much more necessary is it to guard their persons from outrage, and the consequences of threats of outrage to their persons or their houses. It is therefore necessary for the court, when such a case as this is brought before it, to exercise the powers which the law has vested in it for the protection of those engaged in the administration of justice; and above all, to protect jurors from intimidation and outrage.”55


51

5 Cox 356, at 359 (1848). See also In re MM and HM [1933] IR 299, at 323 (Sup Ct, per Fitzgibbon J).

52

Cf 5 Cox, at 359.

53

See Borrie & Lowe, 285–286.

54

Cf R v Dougherty, 5 Cox 348 (1848).

55

5 Cox, at 359.



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C. Judges

Interference with a judge may constitute contempt.56 This is clearly so where the action is done in the knowledge of the judge's status and with the intent to interfere with the administration of justice. Where these elements are lacking, the position is less certain. In the absence of modern judicial authority, one may only speculate as to the precise mens rea requirement: a test based on intent or recklessness as regards interference with the administration of justice would seem consonant with modern requirements of criminal justice, provided also the alleged contemnor was aware of – or perhaps reckless as regards – the status of the person with whom he interfered.

In Atcheson v Morgan,57 William McKinney, a witness in a case which had been adjourned on account of his absence through illness wrote a letter to one of the judges (Lord Justice Best) hearing the case. The letter was headed “William McKinney, building contractor, timber importer, and box manufacturer, Lisavogue, Tandragee”, and read as follows:

“Rt Hon Sir –

Just a line on behalf of my good friend, Mrs Morgan, of Tandragee, hoping I am not infringing on your good nature. You being one of the judges of the case in which Mrs Morgan figures as defendant, I must humbly ask you to use your influence in seeing justice done by her. Mr George Atcheson, deceased, intended leaving all his property beside Tandragee to Mrs Morgan, and if she is decided against it would put her on the broad road. I trust you will see your way to safeguard her interests. Please accept my apologies for taking the liberty of writing you.

I remain, yours fraternally,

William McKinney.”

When called on to answer this contempt, Mr McKinney filed an affidavit of apology.

The short report of the case states that the Lord Chief Justice said that the court had considered the case, and it recognised it as necessary that the public should be satisfied that any interference, or attempted interference, with the free flow of justice in the King's Courts in Northern Ireland would be heavily punished. It was a monstrous matter that a thing like this should be contemplated by any business man – that by using indirect influence on one


56

In Birch v Walsh, 10 Ir Eq Rep 93, at 96 (1846), Cusack Smith, MR noted that the Courts of Equity exercised the jurisdiction of committing for contempt where “letters or pamphlets have been addressed to the judge who had to decide upon the case, with the intention either by threats or flattery, or bribery, to influence his decisions”.

57

60 ILT & Sol 937 (NI CA, LCJ and Andrews LJ, 1926).



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Judge of the Court he would be able to secure judgment in favour of his friends. The sooner not only this man but the public – if there were others – had their minds disabused of such a possibility, the better for justice. The letter was simply a futile letter. It was a direct insult to Lord Justice Best. In view of the contemnor's apology a fine of £25 was appropriate (as well as costs for the day when the hearing of the appeal had to be adjourned). Were it not for the apology an order of absolute committal would have issued.58

Of course many acts which constitute an unwarranted interference with a judge will amount to scandalising him or her. But some -attempted bribery, for example – will not. Very often where acts appear to offend against both types of contempt, the proceedings against the alleged contemnor will characterise the conduct as scandalising. This is not an invariable rule, however. Thus, in AG v O'Ryan and Boyd,59 where the first defendant, a County Councillor, wrote a letter to a judge which reflected on him in his judicial and personal capacity and later read the contents of the letter to a meeting of the County Council, and where the second defendant, a newspaper editor, published the contents in his newspaper, both defendants were the object of attachment proceedings for (a) scandalising the Court and (b) publishing words calculated to impede and interfere with the administration of justice. The case is authority for the proposition60 that one may be guilty of interfering with a judge through private communication, apart from cases of scandalising, even after proceedings have been completed. Any other rule would expose judges, and the administration of justice, to the risk of unwarranted interference without redress through contempt proceedings.

D. Officers of the Court61

“Acts which prevent or which are intended to prevent officers of the court from carrying out their duties constitute a contempt of court”.62 The list of such officers has yet to be definitely established. It includes solicitors, sheriffs, receivers, liquidators, sequestrators and process servers.63


58

See also Martin, 71 ILT & Sol J 87 (NI High Ct, Megan J, 1937) (letter by a defendant to the judge which “showed a clear desire to get the private ear” of the judge held to amount to contempt; the case was a mortgage suit by a bank against members of the family of a deceased man who had been engaged in a substantial way in the linen trade but whose business had deteriorated and whose family had been reduced to a state of poverty; this was one of the reasons why the letter had been written).

59

[1946] IR 70 (High Ct, Maguire P, Gavan Duffy and Haugh JJ, 1945).

60

Not expressly addressed in the judgments, which must be premised on the correctness of the proposition. Oswald, 48–49, argues that, when the proceedings have terminated, only private communications to a judge which amount to scandalising should fall within the scope of contempt. O'Ryan and Boyd is to the contrary, as we have seen. Cf, Borrie & Lowe, 288, who submit that, to write a letter to a judge threatening physical harm by way of punishment for a decision he has given could be considered a contempt on the Butterworth principle already discussed.

61

See generally Borrie & Lowe, 288–295, Miller, 387–393.

62

See Borrie & Lowe, 288.

63

Id. The law of contempt here supplements the criminal law: see, e.g. the Bankruptcy Act 1988, section 128.



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Conduct constituting an interference of this nature may consist of physical assault64 and false imprisonment,65 for example. Whether threatening or abusive language will suffice is less clear: the courts66 have shown a surprising indulgence to defendants, presumably in recognition of the feelings of exasperation that may naturally attend being served with process.

As regards the refusal to allow persons to be served with process, the courts are again somewhat indulgent. Certainly, refusal accompanied by force or actual physical obstruction can constitute a contempt.67 Similarly, preventing service by fraudulent misrepresentation would amount to a contempt.68 But where the default consists of passive lack of assistance it seems that no contempt will be committed.69 The courts regard an attempt to frustrate a writ of possession with less indulgence, however, though again they stress that contempt is to be found in only extreme cases.70

Disturbing receivers, liquidators or sequestrators is treated as a serious contempt.71 In Ames v Birkenhead Docks,72 Lord Romilly MR said:

“There is no question but that this court will not permit a receiver appointed by its authority, and who is therefore its officer, to be interfered with or dispossessed of the property he is directed to receive, by anyone, although the order appointing him may be perfectly erroneous; this Court requires and insists that application should be made to the Court, for permission to take possession of any property of which the receiver either has taken or is directed to take possession.”

In Doran v Kenny,73 the Master in an administration suit ordered that a house held under an agreement for a lease, with a clause against sub-letting, be sold by an auctioneer. The solicitor for the landlord attended the auction and required the auctioneer to read the agreement. The auctioneer declined to do so. The solicitor then stated that the landlord objected to the sale being proceeded with, and cautioned the auctioneer against proceeding with it, because the landlord's consent had not been obtained. There was only one bidder and the house was sold at one third of its value.

Walsh MR, reversing the Master's decision, held that the solicitor was not


64

Williams v Johns, Dick 477 (1773) and the other cases cited by Borne & Lowe, 289, fn 15.

65

Price v Hutchinson, LR 9 Eq 534 (1870), Lewis v Owen, [1894] 1 QB 102.

66

See Borrie & Lowe, 290.

67

Wylam v Wylam and Roller, 69 LT 500 (1893).

68

Borrie & Lowe, 292.

69

Cf Wylam v Wylam and Roller, supra

70

Alliance Building Society v Austen, [1951] 2 All ER 1068. Cf Lacon v De Groat, 10 TLR 24 (1893).

71

Borrie & Lowe, 292–293, Miller, 388–391. See Larkins v National Union of Mineworkers, High Ct, Barrington J, 18 June 1985, Binchy, 195–197.

72

20 Beav 332, at 353 (1855).

73

IR 2 Eq 255 (Walsh MR, 1868).



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guilty of a contempt for which an attachment should be ordered. He said:

“What is the matter complained of? No doubt if, after the appointment of a receiver, a party to the cause receives rent from the tenant, or if any one, knowing of the appointment, brings an ejectment or distrains the tenant, such acts may be punished as contempt, as may other acts tending to frustrate a decree or obstruct the process of the Court; or even mere words, if intended to insult, or designed to corrupt or intimidate those engaged in the administration of justice. But it is otherwise with mere words spoken by a stranger to the cause, and used not disrespectfully or corruptly, but in the bona fide (though mistaken) assertion of a supposed right, or discharge of a supposed duty. The authority approaching most nearly to such a case is the dictum referred to in Courtenay v. Courtenay, where the Master of the Rolls is reported to have stated that he attached a party for interfering with a receiver, and desiring a person not to pay him rent. If this is to be understood of a party who did no more than caution a tenant not to pay his rent to the receiver, bona fide believing that he himself was entitled to receive such rent, I should doubt the accuracy of the report. I have not succeeded in finding any such case.

“On the whole, therefore, I cannot agree in the Master's decision that what occurred here was a contempt of court. I should be glad if I had jurisdiction to make Madden recoup the loss to the parties in the cause, but I do not see how this can be done. I think the view put by counsel is correct, and that there was no legal injury in the nature of slander of title. But as I disapprove of Mr. Madden's conduct – the more so as he is a solicitor, – I shall give him no costs, either of the motion below or the appeal.”74

E. Parties to an Action

Parties to an action are in a somewhat different position from witnesses in that, unlike witnesses ( who can be compelled to give evidence), litigants have at least the theoretical option whether or not to bring or defend legal proceedings.75 They may therefore expect to have to put up with a degree of pressure, whether publicly or privately expressed, at all events if it is moderate, fair and reasonable, and there is a common interest between the person exercising the pressure and the litigant,76 and perhaps even without these qualifications if it is fair and temperately expressed.77


74

Id, at 259–260.

75

See Borrie & Lowe, 298, resiling from their position, adopted in the First Edition, 223, 229, that litigants and witnesses should be subject to the same principles so far as the law of contempt in relation to interference with them is concerned.

76

Borrie & Lowe, 298, citing the Sunday Times case, [1974] AC, at 319 (per Lord Simon).

77

Id, citing the view of majority in Sunday Times, so far, as public pressure is concerned, and Lord Diplock's view that this applied a fortiori to private pressure.



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An attempt to blackmail or intimidate a party with a view to forcing him or her to withdraw a suit constitutes contempt.78 Similarly, attempts to bribe a party to withdraw from litigation or change his or her evidence.79 Preventing a party from obeying a court order also amounts to contempt, as where a child's mother hid him and thus prevented him from being served with an order directing him to execute a conveyance within fourteen days.80

The question whether 'he temporal limits of liability for contempt of this kind are the same as for those in relation to witnesses and jurors is as yet unresolved. There is authority81 in England for the proposition that the fact that the victim is not yet an actual litigant, if he intends to be such, is not a reason for excluding the application of the law of contempt. The position where a litigant is punished for having taken (or defended) proceedings is not covered by any clear authority.82

Borrie & Lowe83 take no final position on this latter issue. They state:

“It could certainly be argued that, for example, a company that dismisses an employee for bringing a legal action against it could deter future employees from bringing an action. Whether such conduct would be considered an actionable interference with the administration of justice is perhaps doubtful and it may be that this is another example of where the difference between the litigant who has a choice whether or not to bring an action and a witness who can be compelled to give evidence, is crucial”.

In spite of this difference, it may be argued that the rationale for contempt in respect of victimisation of a witness or juror is not by any means restricted to the element of compulsion affecting those categories of participant in the legal process. Moreover, the idea that a litigant is free to sue or not is a debatable one. The victim of a tort or breach of contract is in only the most formal of senses “free” to neglect to protect his or her rights through the judicial process. Freedom to refrain from seeking to obtain that to which one is entitled is an odd basis on which to justify the failure to apply the contempt jurisdiction to those who seek their due through legal action. Where an old-age pensioner is victimised by her mugger for having successfully sued him for battery, society in general and the administration of justice in particular, may


78

Re Mulock, 3 Sw & Tr 599 (1864), Smith v Lakeman, 26 LJ Ch 305 (1856), Borrie & Lowe, 299–300.

79

Re Hooley Rucker's case, 79 LT 306 (1898), Borrie & Lowe, 300.

80

Thomas v Gwynne, 8 Beav 312 (1845).

81

Raymond v Holey (1983) AC 1.

82

Lord Simon's speech in the Sunday Times litigation, [1974] AC, at 320 “seem[s] to hint” that such reprisals are not contempt: Borrie & Lowe, 302, fn 6. The general tenor of the speech, however, scarcely affords a sound principled basis for making a distinction between litigants and witnesses or jurors, so far as punishment (as opposed to public discussion) is concerned.

83

Borrie & Lowe, 302 (footnote reference omitted).



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be considered to have as proper an interest in taking contempt proceedings against the mugger as they would if the mugger victimised a witness or juror. The right to litigate is a constitutional right which is deserving of effective protection. In this regard it is worth noting that, perhaps even more strongly than in the case of victimisation of witnesses, the victimisation of litigants would seem to afford a remedy in the form of damages for interference with a constitutional right.

F. Wards of Court

Interference with the exercise of the court's wardship jurisdiction may constitute a contempt.84 Formerly liability was strict,85 with the question of lack of intention, recklessness or negligence as to the ward's status being a matter merely for mitigation of punishment. Today the thrust of decisions internationally is towards establishing a mens rea test of intention or recklessness.86

Two particular areas may be mentioned briefly: (1) marrying a ward; and (2) wrongfully removing a ward from the jurisdiction.

(1) Marrying a ward

In the days when settlements of property linked to marriage were more common, quite a volume of litigation in relation to the marriage (or attempted marriage) of wards was reported.87 Today, this source of litigation has been greatly reduced. Nonetheless, it remains a contempt to marry or attempt to marry a ward,88 or to assist in the marriage of a ward, without


84

See generally N Lowe & R White, Wards of Court ch 8 (2nd ed, 1986), Shatter, 399–402, Binchy (Family Casebook)), ch 16, Miller, 393–396, Borrie & Lowe, 305–308.

85

Herbert's case, 3 P Wms 116, 24 ER 992 (1731), Re H's Settlement, [1909] 2 Ch 260, Re J, an Infant, 29 TLR 456 (Chy Div Sargant J. 1913).

86

Cf Re F (otherwise A) (a minor), [1977] Fam 58, at 88 (per Lord Denning MR). Cf Miller, 395–396.

87

Cf Borrie & Lowe, 306. See, e.g, Black v Creigton, 2 L Recorder 10 (1828); cf In re Murray, a Minor, 5 Ir Eq 266 (1842). English decisions include Warter v Yorke, 19 Ves 451. 34 ER 584 (1815), Brandon v Knight, 1 Dick 160, 21 ER 230 (1752) and Re H's Settlement, supra.

88

In Ireland the marriage of a person found to be of unsound mind is void even if contracted during a lucid interval: Marriage of Lunatics Act 1811 (51 Geo III, 37), Turner v Meyers (falsely calling herself Turner) 1 Hag Con 414, at 417, 161 ER 600, at 601 (per Sir William Scott, 1808).



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having obtained the court's prior consent.89

(2) Wrongfully removing a ward from the jurisdiction

It is criminal contempt of court to take a ward of court out of this jurisdiction wihout consent.90 This is because the removal “effectively deprives the court of its power to supervise the child's upbringing”.91 The contempt jurisdiction is in addition to other legal responses which may be appropriate, such as a


89

In re JL, unreported, Supreme Court, 21 December 1965 (156–1965), extracted in Binchy (Family Casebook), 480–484. The Age of Majority Act 1985 reduced the age of majority from twenty-one to eighteen (or younger in the case of marriage under the age of eighteen). The drafting of certain provisions, in particular section 2, has given rise to some uncertainty: see Binchy Annotation to the Age of Majority Act 1985 (ICLSA). In his General Note to section 2, Binchy states:

“So far as wards of court are concerned, the position is ... uncertain. It would appear that, by reason of section 2(1), wardship ends at 18 rather than 21. Moreover, Paragraph 2 of the Schedule is premised on this assumption .... Marriage by a ward without judicial consent constitutes contempt of court although this would not appear to invalidate the marriage. What is the position where a person whose wardship has ceased at 18 wishes to marry before he or she attains the age of 21? Three possibilites may be canvassed. First, it could be contended that the policy of section 2(4) of the 1985 Act is to preserve a judicial control over former wards until the age of 21 with respect to consent to marriage. The reason why wards do not fall within the 'consent' requirements of the 1972 Act is that in 1972 (and up to the commencement of the 1985 Act), wards, independently of section 4, required the consent of the President of the High Court to marry. It would be a policy of debatable consistency to permit former wards of court, aged between 18 and 21, to marry without the consent of any third party, while requiring former minors in general to obtain the consent of their former guardians or, possibly, of the President of the High Court.

A second possibility is that the former guardians (if any) of the ward should have to provide their consent. Thirdly, it might be argued that former wards are entirely free to marry, without any restraint. The express words of the revised section 19 of the 1844 Act would appear to support this interpretation but ... the policy is debatable”.

90

Miller, 394, Borrie & Lowe, 306–307. Re J (an Infant), supra, Re O (Infants), [1962] 2 All ER 10.

91

Borrie & Lowe, 306. The Constitutional protection of the family may also be relevant in this context: cf Re Corcoran en Infant, 86 ILTR 6, at 18 (Sup Ct, per Murnaghan, J, 1950), Binchy (Conflicts), 380 332.



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criminal prosecution,92 proceedings brought under the Guardianship of Infants Act, habeus corpus proceedings or (when it is enacted into Irish law, as has been promised) the Hague Convention on International Child Abduction.93

2. GENERAL PRINCIPLES

The Scope of the Actus Reus

In In re MM and HM,94 the question of the scope of the actus reus of conduct interfering with the administration of justice was discussed in some detail. One Birmingham was the foreman of a jury which was engaged in an inquiry as to whether two persons, an elderly brother and sister, were of unsound mind. The jury, after much difficulty in reaching agreement, eventually brought in a verdict with respect to the brother that he was of unsound mind, in the face of strong evidence to the contrary.95 Another jury failed to agree in relation to the sister's sanity; and it was accordingly discharged. While that jury was hearing the evidence, Birmingham (who was a retired Station Sergeant from the Dublin Metropolitan Police) went to the house of the brother and sister and had a conversation with the brother in the presence of the sister. The substance of that conversation – the nature of which was


92

E.g., for false imprisonments, or under sections 55 or 56 of the Offences Against the Persons Act 1861, or for kidnapping, or under section 40 of the Adoption Act 1952. As to the scope of kidnapping in this context, see The People (AG) v Edge, [1943] IR 115 (Sup Ct, 1943, rev'g CCA, 1942); cf R v D, [1984] AC 778 (HL (Eng)). In our Report on the Hague Convention on the Civil Aspects of International Child Abduction and Some Related Matters (LRC 12–1985), p44, we recommended the creation of an offence of abduction of a child under sixteen out of the jurisdiction. This offence would be committed by anyone “who takes or sends or keeps a child (being a child habitually resident in the State) out of the State in defiance of a court order or without the consent of each person who is a parent or guardian to whom custody has been granted unless the leave of the court is obtained; it should be a defence that the accused (i) honestly believed the child was over sixteen; (ii) obtained the consent of the requisite persons or of the court; (iii) has been unable to communicate with the requisite persons, having taken all reasonable steps, but believes that they would all consent if they were aware of all the relevant circumstances; or (iv) being a parent or guardian or person having custody of the child, had no intention to deprive others having rights of guardianship or custody in relation to the child of those rights”. We recommended that no prosecution should be brought without the consent of the person in breach of whose rights in relation to the child that was abducted out of this jurisdiction. For critical analysis, see McCutcheon, Child Abduction: A New Offence?, 3 Ir L Times (ns) 233 (1985). (More generally, see O'Connor, “Kidnapping” and the Irish Courts, 2 Ir L Times (ns) 4 (1984), McCutcheon, Kidnapping Reconsidered, 3 Ir L Times (ns) 146 (1985)).

93

See our Report on the subject (LRC 12–1985), supra; Binchy (Conflicts), 332–346. We also recomend that the Garda Siochana should have greater powers than at present to detain a child who is being abducted from the State. Section 37 of the Child Abduction and Enforcement of Custody Orders Act 1991 gives effect to this latter recommendation.

94

[1933] IR 299.

95

Cf id, at 303.



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strongly disputed in evidence96– was an offer by Birmingham to interfere with the jury trying the Inquisition into the sanity of the sister, and “to bring such influence or pressure to bear upon that jury as to secure that the jury, irrespective of the evidence and without regard to their oaths, would bring in a finding establishing her sanity”97; this proposal “was made and was recognised by [the brother], as based on valuable consideration to pass from [him]”.98 The prompt intervention of neighbours of the brother and sister resulted in Birmingham being brought before the court, accused of contempt.

On the basis of the pact, Kennedy CJ held Birmingham guilty of contempt. He was of the opinion that it was “not necessary to prove actual interference with the jury to establish the case ... [of] contempt.”99

On appeal, the Supreme Court, by a majority,100 reversed. Fitzgibbon J referred to the Chief Justice's statement and responded:

“If by that ... sentence he means that it is not necessary to prove that the jurors were actually persuaded to give a false verdict, I entirely agree, but that it is necessary to give some evidence of some actual attempt to interfere with a juror or jurors before a party accused can be punished for making such an attempt, I have no doubt whatever ...

The utmost point to which [the holding] can be pushed is that Birmingham made an offer to secure the acquittal of Mr M by tampering with the jury ... and I not prepared to hold, in the case of a grave criminal charge, that an offer to do, or to attempt to do, an act which would be a crime if done, amounts to doing, or attempting to do.


96

A woman who was a neighbour of the brother and sister and whose husband was a tenant of the brother, stated in an affidavit that she had heard Birmingham set out his proposal to the brother. In language reminiscent of O'Casey, she reported that Birmingham had said to the brother “I incensed it into the jury that you were not to be brought out insane and I will see that the same verdict will be brought out for this poor sister of yours, because I know you a number of years and I would not think it right to go against you”. The brother had replied: “I was delighted to see you on the jury as I knew I would be all right”. Birmingham responded: “I was sure that I would have been on the jury of your sister and everything would have been all right, but I will see that your sister will not be convicted”. To this, the brother, who appeared to be very excited, said: “You know I have something for you and I will see you all right”. The neighbour stated further that she then knocked on the window of the brother's kitchen and said to Birmingham: “I don't think it fair of you to come to HM's premises to conversate over what you have done ...”. She intimated that she would consult the solicitor having carriage. The light in the kitchen was then extinguished. An hour later, when Birmingham emerged from the house, the neighbour again remonstrated with him, asking whether he called himself a just man “for to conversate with Mr M in the manner you have done?” Birmingham became excited, threw down his attache case and threatened her saying “Only you are a woman I would take your sacred life. I would get you and tear you up and down the street only you are a woman”.

97

[1933] IR, at 313–314.

98

Id, at 314.

99

Id.

100

Fitzgibbon and Murnaghan JJ, Johnston J dissenting.



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the crime. I can find no evidence, assuming the truth of all that has been sworn to against Michael Birmingham, that he did more than make an offer, or, at most, express an intention, to try to influence the jury.

A man may have in his mind a criminal purpose to commit a felony or misdemeanour, but so long as that purpose rests in bare intention, he does not become amenable to the criminal law. Attempting to commit a crime is distinct from intending to commit.101102

After reference to earlier decisions dealing with attempt to commit offences other than contempt, Fitzgibbon J concluded his analysis as follows:

“In my opinion the mere making of such an offer (if there were any evidence that it was made), not followed by any act in attempted fulfilment of it, does not amount to an interference, or an attempt to interfere, with the jury or with any juror, and as the Chief Justice has expressly stated that he had 'no evidence as to Birmingham's having actually approached any juror or jurors, or as to whether the disagreement of the jury was brought about by his efforts', I have come to the conclusion that the conviction of Birmingham upon the charge of tampering, or of attempting to tamper, with the jury then trying M M's case cannot be sustained.”103

Fitzgibbon J pointed out that it was “entirely erroneous”104 to assume that, without contempt proceedings, nothing could be done to restrain interference with jurors until after the mischief had been done. The court had the fullest power to intervene by granting an injunction to restrain any threatened or anticipated interference with its proceedings. But, he added:

“the existence of a power in the Court to restrain a man from making an attempt to commit a crime does not imply the existence of a power to inflict imprisonment or a fine for the expression of an intention to commit one, and the distinction between an intent and an attempt appears to me to have been overlooked in the present case.”105

Murnaghan J, concurring, expressed the same opinion in concise terms:

“An exhaustive examination of the authorities will show that no case exists where a person has been committed for contempt upon a mere expression of intention to do some act calculated to interfere with the due administration of justice. Long experience enshrined in the


101

Citing Russell on Crimes, 7th ed, Vol I, p142.

102

[1933] IR, at 329.

103

Id, at 331.

104

Id, at 332.

105

Id. Cf The People v Ryan, [1989] ILRM 333 (Sup Ct, 1988).



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criminal law has refused to punish as a crime mere expressions of intention to do acts which, if committed, would amount to crimes. Interference, or attempted interference, with the due course of justice means some act which will actually influence, or is possibly calculated to influence, the decision of the jury. States of facts do occur which are calculated to influence a jury without proof that any juror has been approached, such as publications in newspapers or circulars which may, and probably will, come to the notice of the jury. However improper or wrong the conversation of Birmingham with H M was, on the evidence this conversation could not possibly have influenced the decision of the jury, for the jury were upon the evidence and on the finding of the Chief Justice utterly unaware of any act or interest of Michael Birmingham in the trial of the issue, and I cannot hold that what took place in [M M's home] was an interference or attempted interference with the due course of justice by way of tampering with the jury. Nor was the expression of intention made in that house, but not carried into execution, an attempt to commit the crime of tampering with a jury.”106

Johnston J, dissenting, considered that Birmingham's conduct had gone far beyond the formulation of a mere intention. It was “the beginning – and the necessary beginning – of the actual commission of the offence”.107 It involved solicitation which on the authority of Higgins,108 was sufficient to constitute an attempt. Applying Baron Parke's well known test in Eagleton,109 Johnson J was of the view that in the case before the Court:

“Birmingham's act in walking towards the house of the parties would probably have to be regarded as an act only remotely leading towards the commission of the offence. But when he reached the house and embarked on the discussion that took place, the position became entirely changed.”110

The majority's approach is surprisingly restrained. It might have been thought that the narrow confines of the general criminal law of attempt would have little attraction in the area of contempt where, in relation to such aspects as scandalising and the sub judice rule, the emphasis has been on the tendency or likelihood of the defendant's conduct to result in interference with the


106

[1933] IR, at 338–339.

107

Id, at 346–347.

108

2 East 5.

109

24 LJ MC 158, where Parke B had said:

The mere intention to commit a misdemeanour is not criminal. Some act is required; and we do not think all acts towards committing a misdemeanour indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it; but acts immediately connected with it are”.

110

[1933] IR. at 347.



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administration of justice. Undoubtedly Birmingham's conduct, although it had not gone as far as he had promised (and presumably intended), had a definite tendency or likelihood to result in such interference. It is worth noting here that the fact that a jury was not, or could not actually have been, influenced by conduct in breach of the sub judice rule will not afford a defendant an excuse.

3. ABUSE OF THE COURT'S PROCESS111

The courts have wide-ranging powers to deal with abuse of the court's process.112 Generally, they will be slow to invoke the contempt jurisdiction113 but it is always there in reserve. It has tended to be used in cases of forging or altering the process itself, falsehoods intended to deceive the court, and acts of misuse of process which prejudice other persons.114

In this context it is worth recalling the case of The State (Quinn) v Ryan,115 where the Supreme Court invoked the concept of “contempt of the courts” in relation to conduct by the Garda authorities which had the likely effect of frustrating the administration of justice.

4. OTHER EXAMPLES116

It seems that the categories of interference with the administration of justice are not closed. Thus, the mere fact that there is no direct precedent to cover the impugned conduct is not a reason for holding that contempt proceedings have no application. Provided the courts maintain a cautious approach as to the need for real prejudice to the administration of justice, this open-endedness should not prove oppressive.


111

See Borrie & Lowe, 308 – 313.

112

Cf, e.g. the Rules of the Superior Courts 1986, Order 19, rules 27 – 28.

113

Other strategies are available: the court may strike out proceedings on the basis that they are frivolous or vexatious: see Rules of the Superior Courts 1986, Order 19, rule 28 and Barry v Buckley, [1981] IR 306 (High Ct, Costello J). In certain circumstances a tort action may lie, either for the malicious prosecution (cf, e.g., Kelly v Midland Gt Western Ry of Ireland Co, IR 7 CL 8 (QB, 1872), Davidson v Smyth, 20 LR IR 326 (CP Div, Murphy, J, 1887), Cruise v Burke, [1919] 2 IR 182 (KB Div, 1918)), the malicious institution or continuation of civil proceedings (Dorene Ltd v Suedes (Ireland) Ltd, [1981] IR 312 (High Ct, Costello J), or the abuse of process (Speed Seal Products Ltd v Paddington, [1986] 1 All ER 91 (CA), Grainger v Hill, 4 Bing NC 212 (1838)); cf Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc, [1989] 3 All ER 14 (CA). See McMahon & Binchy, ch 36, Wells, The Abuse of Process, 102 LQ Rev 9 (1986).

114

See Borrie & Lowe, 310.

115

[1965] IR 110.

116

See Borrie & Lowe, 313.



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One matter on which there is only one reported decision117 in Ireland, so far as we are aware, concerns the disclosure of what took place in the jury room. Judges may warn juries against making such disclosures, but that does not resolve the question as to whether they constitute contempt.

In England, in AG v New Statesman & Nation Publishing Co Ltd,118 in 1980, the view was taken that such disclosures are capable of constituting contempt but will not do so in every case. The basic question is whether disclosure tends to imperil the finality of jury verdicts or to affect adversely the attitude of future jurors and the quality of their deliberations.

Thirteen years previously, the Home Secretary, Mr Roy Jenkins, had asked the Criminal Law Revision Committee to consider:

“whether statutory provisions should be made to protect the secrecy of the jury room; and in particular whether, and, if so, subject to what exemptions and qualifications, it should be an offence to seek information from a juror about a jury's deliberations or for a juror to disclose such information.”119

The Committee came to the conclusion that there was not “a mischief so extensive or serious”120 that it called for legislation. It baulked at the prospect of the legislation's having to provide exceptions to deal with cases where irregularities occur during the trial. It added:

“Should any newspaper be tempted to take advantage of the freedom which at present exists to approach jurors for information in order to prolong the sensationalism of a criminal trial, we should hope that intervention by the Press Council, which exercises so valuable an influence in maintaining standards of journalism, would be effectual to check any such abuse.”121

In Attorney-General v New Statesman & Nation Publishing Co. Ltd,122 Lord Widgery CJ referred to the Criminal Law Revision Committee's report, and stated:

“The evidence before us shows that for a number of years the publication of jury room secrets has occurred on numerous occasions.


117

Sheehy v The Freeman's Journal Co Ltd, 26 ILTR 47 (Ex Div, 1892), where a newspaper published the numbers voting for the plaintiff and the defendant in a jury disagreement in libel proceedings, a retrial then pending. This was held to be a contempt. Per Palles CB, at 48: “... [T]he ground on which the comments are dealt with as contempt is not secrecy, but their tending to obstruct or pervert the course of justice”.

118

[1981] 1 QB 1 (QB Div, 1980).

119

Secrecy of Jury Room, para 1 (Cmnd 3750, 1967).

120

Id, para 4.

121

Id, para 5.

122

Supra.



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To many of those disclosures no exception could be taken because, from a study of them it would not be possible to identify the persons concerned in the trials. In these cases, jury secrets were revealed in the main for the laudable purpose of informing would-be jurors what to expect when summoned for jury service. Thus, it is not possible to contend that every case of post-trial activity of the kind with which we are concerned must necessarily amount to a contempt.”123

It has been observed that:

“But for the New Statesman case the Government's Contempt of Court Bill of 1980 would probably not have dealt with jury secrecy at all. The Bill had been designed to give effect to some of the recommendations of the Phillimore Committee on Contempt of Court and to bring the so-called sub-judice rule into line with the requirements of article 10 of the European Convention on Human Rights. The Phillimore Committee had not touched on jury secrecy at all; nor had the English Law Commission in its report (1979) on Offences Relating to Interference with the Course of Justice.”124

Clause 8 of the Government's Contempt of Court Bill provided as follows:


(1)


Subject to subsections (2) and (3) below, it is a contempt of court –


(a)


to publish any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings;


(b)


to disclose any such particulars with a view to their being published or with knowledge that they are to be published;


(c)


to solicit the disclosure of such particulars with intent to publish them or cause or enable them to be published.


(2)


This section does not apply to publications which do not identify the particular proceedings in which the deliberations of the jury took place, or the names of particular jurors, and do not enable such matters to be identified, or the disclosure or solicitation of information for purposes of such publication.


(3)


This section does not apply to any disclosures of any


123

[1981] 1 QB, at 11.

124

Campbell, op cit, at 176.



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particulars –


(a)


in the proceedings in question for the purpose of enabling the jury to arrive at their verdict or in connection with the delivery of that verdict, or


(b)


in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings, or to the publication of any particulars so disclosed.


(4)


Proceedings for a contempt of court under this section (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney-General or on the motion of a court having jurisdiction to deal with it.”

One commentator has observed that:

“Had this clause been enacted it would have taken care of the concerns which had been expressed both by the Criminal Law Revision Committee it its 1968 report and by the Divisional Court in the New Statesman case. It would have accommodated the various exceptions which, the Committee had said, would need to be built into any statutory rule on jury secrecy. It would have met the Committee's point that 'there is no objection to jurors discussing their experiences in a general way and without identifying cases'. It would have taken account of what the Divisional Court had said were 'strong arguments in support of the view that certain categories of disclosures fall outside the law of contempt, for example where serious research is being carried out' and where the disclosures for that purpose do not identify particular trials. And the provision whereby prosecutions for breach of the proposed section could be initiated only by the Attorney General or with his consent, or by a court of competent jurisdiction, would have offered some assurance that proceedings would not be taken against those who were guilty of only minor infractions – disclosures which few people would regard as deserving of punishment”.125

As matters transpired, clause 8 did not survive. It was considered to be too liberal and to fail to afford adequate protection to jurors against harassment


125

Campbell, op cit, at 177.



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or being offered payment for their disclosures.126

Also critical of clause 8 on the ground that it was too liberal were Lord Chief Justice Lane, Lord Scarman and the Criminal Bar Association.127

Criticism also came from the other side. A commentator notes that:

“the authors of a pamphlet entitled Changing Contempt of Court,128 published under the joint auspices of the National Council of Civil Liberties and Campaign for Press Freedom, argued that the law proposed by the Lord Chancellor was not sufficiently liberal. They argued that some restrictions ought to be placed on disclosure of jury deliberations, for example disclosures when a trial was in progress. They conceded also that there ought to be laws to prohibit payments being made to jurors in consideration of their agreement to disclose jury secrets, and to prohibit public identification of jurors without their consent. But, in their opinion, a law of the kind proposed by the Lord Chancellor ought to allow a defendant to a charge of prohibited disclosure to plead public interest as a defence.129

When the Bill came for debate in the House of Commons, the Government offered an amendment which was considered to go some way towards allaying the concerns expressed by Lords Wigoder and Hutchinson. It proposed the insertion at the beginning of clause 8 of the following words:

“Without prejudice to any rule of law which prohibits disclosures by or approaches to jurors during or after the trial”.

The idea here was to preserve the courts' “common law contempt jurisdiction to deal with cases in which there had been improper dealings between jurors


126

Id. Criticism that clause 8 was not sufficiently liberal was voiced by A Nichol and H Rogers, in a pamphlet, Clarifying Contempt of Court (1981), published under the joint auspices of the NCCL and Campaign for Press Freedom: see Campbell op cit, at 178, and the Editorial, 131 New LJ 101 (1981). The editorial stated:

“We ourselves believe that clause 8 is in fact, as the Lord Chancellor said it was, 'about right' and that any attempt either to extend or restrict the application of the law of contempt in this particular context of jury-room deliberations would have highly unsatisfactory results in practice. The only question we of ourselves would ask is whether invoking the law problem of safeguarding jury-room deliberations, as opposed to the creation of a new specific offence. But in any event there would have to be an exemption, on the lines of that provided in Clause 8 of the Contempt of Court Bill to protect investigations carried out for the purposes of bona fide research into the operation of the jury system which, to the extent that they were made public, did not identify individual jurors or the particular cases in which they have taken part.”

127

Campbell, op cit, at 178.

128

A Nichol & H Rogers, Changing Contempt of Court (1981).

129

Campbell, op cit, at 178.



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and non-jurors.”130 This amendment was agreed to, and thus another amendment, adopting a quite different strategy, proposed by Mr Edward Gardner, M.P. was not put to a vote. This would have redrafted clause 8 as follows:


(1)


Subject to subsection (2) and (3) below, it is contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.


(2)


This section does not apply where any such particulars are obtained, disclosed or solicited with intent that they should be published and


(a)


the publication does not identify the particular proceedings in which the deliberations of the jury took place or the name of the particular jurors, and does not enable such matters to be identified, and


(b)


the consent of the Attorney-General to the publication has been obtained before any such particulars are solicited.


(3)


This section does not apply to any disclosures of any such particulars –


(a)


in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connection with the delivery of that verdict; or


(b)


in any appeal from the verdict of the jury in the proceedings in question; or


(c)


in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings.”

Commenting on this proposed redraft, Campbell states:

“The clause proposed by Mr Gardner was much more restrictive than that proposed by the Lord Chancellor. Under Lord Hailsham's Bill, a juror who disclosed particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury, otherwise than in the course of the jury's deliberations or in subsequent legal proceedings for the offence in relation to the jury, would not be guilty


130

Id.



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of an offence unless it was proved that he disclosed those particulars with a view to their being published or with the knowledge that they might be published. Likewise a person who solicited disclosure of such particulars from a jury would not be guilty of an offence unless it was proved that he did so with the intention of publishing the information or of causing or enabling it to be published. But under Mr. Gardner's proposed clause, a juror who disclosed such particulars, and a person who solicited disclosure of them, could be guilty of an offence even if there was no intention to publish them or any thought that they might be published. The only concession made by Mr. Gardner to the proposal that scholarly research into the workings of the jury system should be exempted was that no one would be liable to be prosecuted for disclosing jury deliberations or soliciting disclosure with the intention that the disclosures be published, if the consent of the Attorney General had been obtained before any information was solicited, and the ultimate publication did not identify the particular proceedings in which the deliberations of the jury occurred, or jurors' names, and did not enable such matters to be identified.131

“Another respect in which Mr Gardner's proposed law differed from Lord Hailsham's was that whereas under Lord Hailsham's Bill, a prosecution for an offence could not be launched except by the Attorney General or with his consent, Mr. Gardner's proposal would have permitted prosecutions to be initiated in the ordinary way.”132

When the Bill, as amended, returned to the House of Lords, Lord Hutchinson:

“renewed his attack on clause 8 by moving that it be replaced by another clause similar to that which had been moved by Mr. Gardner in the Commons. The proposed amendment had, he said, the support of Lord Scarman, Lord Chief Justice Lane and the Criminal Bar Association. In the course of debate on Lord Hutchinson's proposed amendment, one of the law lords, Lord Edmund Davies, let it be known that he too was opposed to the Government's proposal, and that though he had been a member of the Criminal Law Revision Committee which, in 1968, had recommended that disclosure of jury secrets not be made a criminal offence, he was now persuaded that what had hitherto been a rule of conduct should be made a rule of law. And, like the mover of the amendment, he did not believe an exception should be made in the interests of scientific research. In his view, the prospect of their being approached to talk about their experiences on juries would make people reluctant to undertake jury service and would inhibit candour in jury deliberations. To prohibit merely the publication of identifying


131

Campbell notes that “[i]t appears that the Criminal Bar Association was divided on whether research into the jury system should be exempted (id. 925–6).

132

Campbell, op cit, at 179–180.



THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=144


details would not, he thought 'remove discomfiture of juries on being subjected to ... post trial interrogation'.”133

Lord Hutchinson's amendment provided as follows:

“8.


(1)


Subject to subsection (2) below, it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.


(2)


This section does not apply to any disclosures of any particulars –


(a)


in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connection with the delivery of that verdict, or


(b)


in evidence in any subsequent proceedings for an offence in relation to the jury in the first mentioned proceedings, or the publication of the particulars so disclosed ....”

This section was enacted in due course.

Campbell states:

“The enactment of section 8 of the Contempt of Court Act 1981 did not put an end to the debate over the extent to which disclosure of jury deliberations should be a criminal offence. In the closing stages of the parliamentary debate on Lord Hutchinson's amendment the Lord Chancellor made his position very clear. What was being proposed was, he said, 'thoroughly bad because it is too draconian'.134 His sentiments were shared by many others. The editors of the New Law Journal, in an editorial published on 30th July 1981, were equally critical of the new law. Its effect was, it was suggested, to prevent 'jurors from revealing things they perhaps considered ought to be revealed about the administration of justice'.135 Jurors, it was further argued, should not be given immunity from reasonable public scrutiny or responsible investigation.136 HV Lowe queried whether section 8 might not violate the freedom of speech article (article 10) in the European Convention


133

Id, at 180.

134

422 HL Deb, cols 252–253.

135

131 New LJ 789 (1981).

136

Id 790.



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on Human Rights.137 Patricia Hewitt also considered that the new law had gone too far. It had, she commented138:

imposed a complete ban on jury disclosures, whether during or after trial, whether paid for or not, whether anonymous or identified. Research interviews with jurors are prohibited, as are articles by journalists who have themselves served as jurors. Indeed, any juror who refers publicly to his jury-room experiences will be in contempt. It is, of course, necessary to protect jurors from press approaches before a verdict has been given, and it would seem inappropriate to allow researchers or journalists even to pay jurors for interview or to identify a juror without his or her consent. But the risks that a verdict will not be regarded as final if jurors may comment publicly on their decision or how it was reached, or that the institution of the jury will be undermined if jurors' deliberations are open to public scrutiny and comment, seem to be exaggerated. Considerable publicity has been given in the past to jury-room disclosures, without consequent injustice to defendants or injury to the jury itself. Because the jury provides the only democratic element in the enforcement of the criminal law, there is considerable public interest in its conduct and real public value in allowing jurors to discuss their experience, within certain limits, if they choose to do so.

“The effect of section 8 of the Contempt of Court Act 1981 is certainly to erect an almost impenetrable wall of secrecy around a jury's deliberations. It bans not merely disclosures which are made to the public at large or sections of the public, but also disclosures by jurors to intimate friends or family. It prohibits also approaches to jurors to elicit information about their deliberations. In limiting the power to institute proceedings for contempt to the Attorney General and to courts, the section does, of course, provide some safeguards, for it is unlikely that anyone would be proceeded against for minor and unpublicized breaches of jury secrecy. And since the section is a penal provision, it is to be expected that it will be strictly construed, so that no offence will be held to have been committed if the information disclosed by a juror or the information solicited from him is not particularised information of the kind referred to in sub-section (1) but rather information of a general character.


137

'The English Law of Contempt of Court and Art 10 of the European Convention on Human Rights” in Furmston, Kerridge and Sufrin (eds), The Effects on English Domestic Law of Membership of the European Communities and the Ratification of the European Convention on Human Rights 344–5 (1983).

138

P Hewitt, The Abuse of Power: Civil Liberties in the United Kingdom (Oxford, Martin, Robertson 1981) 92–3. See also J Baldwin & M McConville, “The Effect of the Contempt of Court Act on Research on Juries” 145 JP 575 (1981).



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“Section 8 does not purport to affect the common law regarding the admissibility of evidence from jurors to impeach their verdicts. However the presence of paragraph (b) of sub-section (2) could be interpreted as an indication by Parliament that the only circumstance in which evidence may be received of particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in legal proceedings is when that evidence is tendered in subsequent proceedings for an offence alleged to have been committed in relation to the jury. If that is the case, then such evidence would never be admissible in proceedings for the impeachment of the jury's verdict, and in so far as the common law may allow such evidence to be admitted for that purpose in the exceptional cases, section 8 will have the effect of changing it. One cannot be certain that the courts will treat section 8 as having this effect. It could be argued that if Parliament had intended this result, it would or should have expressed its intentions more plainly.

“There is, to date, no reported case of anyone having been prosecuted for an alleged violation of section 8 so its precise meaning and effect is still speculative.”139


139

Campbell, op cit, at 181–182.



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CHAPTER 6: CIVIL CONTEMPT

In this chapter, we examine the law relating to civil contempt. Civil contempt proceedings differ from proceedings for criminal contempt in that their aim is primarily coercive: to bend the will of a person who is not disposed to comply with a court order. As we shall see, the distinction between civil and criminal contempt is not always easy to draw.

DISOBEDIENCE OF COURT ORDERS

A. Disobedience of Orders requiring certain acts to be done

A judgment requiring a person to do any act other than the payment of money, may be enforced by order of attachment or by committal.1 Judgments for the payment of money may be enforced by execution order2 or by any other mode authorised by the Rules of the Superior Court 1986 or by law.3 If a person fails to comply with an order to answer interrogatories, or for discovery or inspection of documents, he is liable to attachment.4 If a person to whom an order of habeas corpus is directed disobeys the order, application may be made to the Court, on an affidavit of service and disobedience, for an attachment for contempt.5

The concept of a failure “to do any act ...” is obviously of the widest breadth. Apart from the matters already mentioned, it includes such disparate


1

Order 42, Rule 7 of the Rules of the Superior Courts 1986.

2

The term includes orders of fieri facias, sequestration and attachment and all subsequent orders that may issue for giving effect to them: Id, rule 8.

3

Id, rule 3.

4

Order 31, rules 21 and 29.

5

Order 84, rule 12. See also Re Fitzpatrick, an Infant, IR 6 CL 507 (QB, Barry J, 1872), Re Earle, [1938] IR 485 (Sup Ct, 1937), Egan v Macready, [1921] 2 IR 265 (O'Connor MR).



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omissions as the failure to comply with an order for specific performance of a contract6; or to deliver up goods7; or to hand over a child in compliance with a custody order.8

In Re Earle,9 the Supreme Court was equally divided on the question whether the High Court had inherent power to commit for contempt for non-compliance with an order for habeas corpus, without the necessity of compliance with the requirement of notice of motion for attachment under the Rules of the Supreme Court (Ireland) 1905. Fitzgibbon J stated:

“In my opinion, the arguments on behalf of the appellant ignore the vital distinction which, so far as I know, has always been recognised between attachment at the instance of a party to a cause which is part of a process of execution of a decree of a Court as, for instance, when an injunction has been disobeyed, and committal by a Court in exercise of its own inherent jurisdiction to punish or prevent interference with property or persons in its custody, or with the course of justice.

In this case it appears to me that [the appellant] was sentenced to imprisonment not at the request of any party to the proceedings, but by the Court itself because by persistent refusal to make any return, even an illusory one, to the writ of habeas corpus she prevented the Court from investigating the merits, if any, of her suggested defence to a charge of complicity in the abduction of the infant ....”10

And Meredith J observed:

“For the purpose of upholding and protecting the authority of the Court there has always been an inherent jurisdiction in the court to intervene of its own motion by committal for a contempt that then and there openly defies the authority of the Court.

“I do not consider that either the old Crown Office Rules, or the Rules of the Supreme Court 1905, contained in Order 84, were intended to limit or regulate the exercise of this jurisdiction ....

“There are in fact many well recognised cases in which this inherent jurisdiction may be exercised, which have not been made the subject of any prescribed rule. It was this jurisdiction which, in my opinion, was exercised by the Court when [the appellant] neglected to make any return to the writ of habeas corpus, and I think it was clearly invoked.”11


6

CH Giles & Co Ltd v Morris, [1972] 1 All ER 960.

7

Bethinson v Bethinson, [1965] Ch 465.

8

B (BPM) v B (MM), [1969] P103.

9

[1938] IR 485 (Sup Ct, 1937).

10

Id, at 501.

11

Id, at 507.



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On the other hand, Murnaghan J said:

“There was, in the present case,12 in my opinion no such conduct as amounted to insult to the Court beyond that contemplated by Rule 196 which requires notice of motion to be served. In one sense every person who disobeys an order of habeas corpus contemns the Court and he can be punished for that contempt. But the procedure for dealing with this matter is prescribed by Rule 196 of Order 84 .... The absence of the required notice of motion has been treated as a matter of form, but it seems to me that more than mere form is involved .... If a notice of motion as required by the rules of Court had been served it must have been made clear upon what ground the order was sought, and [the defendant] would have had an opportunity of filing any affidavit on which she wished to rely .... I feel that [the defendant] must have been embarrassed by this procedure. She was deprived of the advantage of knowing the specific ground of complaint which she was required to answer.”13

Geoghegan J agreeing with Murnaghan J, expressed his views simply:

“The seriousness of depriving a citizen of personal liberty has often been stressed in the authorities and I think it is well established that before a person can be committed for contempt of the nature alleged in this case strict compliance with the rules of court is essential. Because of the irregularity in procedure I am of opinion that this appeal should be allowed.

“The contempt alleged in this case differs from wilful contempt committed in the face of the Court, or interfering with the dignity of the Court, or its officers or authority.”14

B. Disobedience of Orders prohibiting certain conduct

A person who disobeys an order prohibiting him or her from doing, or


12

In contrast to Egan v Macready, [1921] 1 IR 265 where O'Connor MR ordered a writ of attachment against the military and prison authorities for their disobedience of an order of habeas corpus. The Master of the Rolls observed (at 280) that the respondents had been guilty of “a deliberate contempt of Court – a thing unprecedented in this Court and the whole history of British law”. Cf The State (Quinn) v Ryan, [1965] IR 70.

13

[1938] IR, at 506–507.

14

Id, at 510–511.



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continuing to do a certain act, may be guilty of contempt.15 It is, of course, possible to obtain an injunction against a very wide range of wrongful conduct,16 including torts,17 interference with constitutional rights18 and acting in defiance of the criminal law.19

C. Scope of Order, Notice, Proof of Breach and Related Matters

In this section we examine a number of questions which apply to all court orders, the breach of which may constitute contempt. Our analysis concentrates on injunctions, since these are the most fertile source of applications for contempt.

(i) Strict compliance necessary

It has been noted that a defendant against whom an injunction is ordered cannot excuse himself by saying that he “did his best”20: strict compliance is necessary (according to judicial doctrine, though clearly the courts have regard to all the circumstances in deciding whether an injunction has been breached and in determining their response in that event).

(ii) No distinction between interlocutory and final injunctions

In this context it is worth noting that no distinction is to be drawn as regards the scope of the obligation to obey an injunction on the basis of whether the injunction is interlocutory or final. In the Supreme Court decision of Gore-


15

See Borrie & Lowe, 395 ff; Miller, 409–411; ALRC Research Paper No. 6, Non-Compliance with Court Orders and Undertaking, 10–11 (1986), Rules of the Superior Courts 1986, Order 42, especially rule 7 thereof. See, further Mullin v Hynes, Sup Ct, 13 November 1972 (46–1969) (private nuisance), Hastings v Henry, 46 ILTR 308 (O'Connor, MR, 1912), Fortescue v McKeown, [1914] 1 IR 30 (CA, 1913, rev'g O'Connor MR, (1913) (contempt in respect of mandatory injunction to pull down building that interfered with plaintiff's right to light); Ross Co Ltd (in receivership) and Shorthall-Swan, [1981] ILRM 416 (High Ct, O'Hanlon J) (deliberate disobedience of an order restraining trespass), Clarke v Smith, 48 ILTR 244 (High Ct, Barton J, 1914) (trespass on plaintiff's lands), Smith-Barry v Dawson, 27 LR (Ir) 558 (Chatterton, VC, 1891) (disturbance of plaintiff's markets and fairs), Little v Cooper (No. 2), [1937] IR 510 (High Ct, Johnston J) (interference with fishery), Mining Company of Ireland (Ltd) v Delany, 21 LR (Ir) 8 (Chatterton VC, 1887) (defendants mined coal under plaintiff's lands).

16

See generally Keane, ch 15, Michael W Tyrrell, Injunctions (Incorp L Soc of Ireland, Continuing Legal Education, 1 June 1989).

17

See McMahon & Binchy, ch 45.

18

See Society for the Protection of Unborn Children Ltd v Open Line Counselling Ltd, [1989] ILRM 19 (Sup Ct, 1988), Society for the Protection of Unborn Children Ltd v Coogan, [1990] ILRM 70 (Sup Ct, 1989), Crotty v An Taoiseach, [1987] ILRM 400. See further McMahon & Binchy, 14–15.

19

Cf AG v Paperlink Ltd, [1984] ILRM 373, and see Byrne & Binchy 1987, xvi-xvii. See also AG v Harris, [1961] 1 QB 74.

20

Howitt Transport v Transport and General Workers Union, [1973] ICRI, at 10 (per Donaldson J).



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Booth v Gore-Booth,21 Lavery J expressly rejected this distinction, which had found favour with Murnaghan J in the High Court.

(iii) Terms of injunction must be clear and unambiguous

A person will not be guilty of contempt unless the terms of the injunction were clear and unambiguous.22Borrie & Lowe state:

“Where an order is ambiguous on its face it is submitted that that ambiguity cannot be resolved by examining the transcript of the proceedings.23 On the other hand it may be possible to argue that an order is too wide given the background of the proceedings that preceded its making.2425

(iv) Proper notice to defendant essential

The defendant must have proper notice of the terms of the injunction.26 Order 41, rule 7 of the Rules of the Superior Courts 1986 provides that every judgment or order made in any cause or matter requiring any person to do an act thereby ordered, is to state the time, or the time after service of the judgment or order, within which the act is to be done; and on the copy of the judgment or order which is to be served upon the person required to obey it,27 there must be endorsed a memorandum in the words or to the effect following:

“If you the within named AB neglect to obey this judgment or order by the time therein limited, you will be liable to process of execution including imprisonment for the purpose of compelling you to obey the same judgment or order.”

The purpose of this memorandum is “to call to the attention of the person ordered to do the act that the result of disobedience will be to subject him


21

96 ILTR 32, at 36 (Sup Ct, 1956).

22

Borrie & Lowe, 395, citing Iberian Trust Ltd v Founders Trust and Investment Co Ltd, [1932] 2 KB 87, at 95 (per Luxmoore, J), Re Distillery Brewery, Winery, Soft Drinks and Allied Workers' Union 604 and British Columbia distillery Co Ltd, 57 DLR (3d) 752 (1976) and United Steelworkers of America Local 663 v Anaconda Co (Canada) Ltd, 67 WWR 744 (1969).

23

Citing Northwest Territories Public Service Association v Commissioner of the Northwest Territories, 107 DLR (3d) 458 (1980) “where it was held (Morrow JA dissenting) that court could not examine transcripts of proceedings to determine the scope of an undertaking”.

24

Citing MacMillan Bloedel (Alberni) Ltd v Swanson, 26 DLR (3d) 641 (1972).

25

Borrie & Lowe, 396.

26

Id.

27

Other than an order directing a mortgagor to deliver possession to a mortgagee, or an order under section 62(7) of the Registration of Title Act 1964.



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to penal consequences”.28

(v) Proof of breach

The courts have repeatedly stressed that the breach of an injunction must be proved beyond all reasonable doubt.29 In Re Bramblevale,30 Lord Denning, MR said:

“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond all reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must some other evidence.”

In Society for the Protection of Unborn Children v Grogan,31 Carroll J held that newspaper reports as to what a person has done constitute hearsay evidence on which no one ought to be committed to prison.

(vi) What conduct amounts to a breach?

The Court is sometimes faced with a dispute as to whether to characterise certain conduct as amounting to a breach of an order.

In Gore-Booth v Gore-Booth,32 the Supreme Court, by a majority,33 reversed Murnaghan J's refusal of a motion to commit two sisters of a ward for contempt of court in obstructing the removal of cattle by the servants and agents of the ward's committee from the ward's lands, contrary to the terms of an earlier interim injunction.

Lavery J (Maguire J concurring) accepted that everyone would understand and sympathise with the sisters' dismay that the family home and estate should be broken up and sold but he stated that:

“these considerations must give way to the paramount consideration that orders of the court must be obeyed, and that if deliberate action to


28

Iberian Trust Ltd v Founders Trust and Investment Co Ltd, [1932] 2 KB 87, at 97. See further Century Insurance Co. Ltd v Larkin, [1910] 1 IR 91 (Meredith MR); as to time limits in Circuit Court, see McClure v McClure, [1951] IR 137 (High Ct, Maguire J).

29

Borrie & Lowe, 399–400; W Watson & Sons Ltd v Garber, 106 Sol J 631, (per Lawton, J, 1962), Re Bramblevale, [1970] 1 Ch 128. See also Society for the Protection of Unborn Children v Grogan, High Ct, Carroll, J, 11 October 1989, Irish Times Law Report, 13 November 1989.

30

[1970] 1 Ch, at 137.

31

High Ct, Carroll J, 11 October 1989, Irish Times Law Report, 13 November 1989.

32

96 ILTR 32 (Sup Ct, 1956).

33

Lavery and Maguire J; O Dalaigh J dissenting save in respect of issue of costs.



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obstruct the administration of the estate and to frustrate Court orders is established, the offence involved must be punished.”34

Lavery J noted that neither the question of ownership of the castle nor the right of the committee to remove and sell them was in dispute. This explained the “rather unusual character”35 of the interlocutory injunction:

“Ordinarily, the purpose of such an injunction is to preserve the status quo but here the defendants are restrained from interfering with the plaintiffs in realising the estate – i.e. procedures forthwith to do so.”36

Lavery J noted that a number of elements in the case had not been disputed:

“Shortly, these ladies who had admittedly no proprietary interest in the cattle and who had been ordered by the court not to interfere came to the place where [the auctioneer acting on behalf of the Committee] was carrying out the orders of the Committee and, first, declared they would not allow the removal to take place; second, entered the field and moved about among the cattle; third, physically obstructed or attempted to obstruct the loading of the cattle; fourth, followed the cattle when they were being driven away; fifth, drove their car through the herd striking one of the animals so that the bumper of the car was knocked off or fell off or, lastly, used abusive language of an extreme kind to [the auctioneer].”37

Lavery J held “without hesitation”38 that the defendants had breached the injunction and were guilty of contempt. He also held that the breach was serious. He went on to say:

“I have no difficulty – for myself – in holding that the Court has power to review and, if thought right, to reverse the decision of Murnaghan J. The order is discretionary and should not be interfered with unless there has been an error in principle, and, in the words of one of the authorities, there has been a gross miscarriage.

“In my opinion, there has been such an error and such a miscarriage. If the operation of the Courts is not to be frustrated their orders must be obeyed and, if not obeyed, the disobedience cannot, in principle, be regarded as trivial.

“I am far from saying that every disobedience to a Court order must be punished by imprisonment. I do not say yet that this contempt must


34

96 ILTR, at 36.

35

Id.

36

Id.

37

Id at 37.

38

Id at 38.



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be so punished; but the learned Judge has not only refused to commit but he has ordered the plaintiffs to pay costs and expenses. That is, in my opinion, an error in principle.”39

The plaintiffs had stated during the hearing that they did not press for committal to prison if any expression of regret was forthcoming or even a statement that the acts of obstruction and interference would not be repeated. No such statement was forthcoming from the defendants, who adopted “a defiant attitude in the affidavits and before th[e Supreme] Court”.40

The Supreme Court, “[w]ith hesitation and some fear that it m[ight] be acting with undue leniency”,41 did not make an order for committal, on the basis that there were circumstance which, while incapable of excusing the defendant's activities, might, “in some degree, be taken into account in extenuation”.42 Lavery J added:

“These defendants will, I hope, appreciate the consideration given to them and guide their future conduct accordingly. Any repetition of their conduct certainly would merit severe punishment.”43

The defendants were ordered to pay costs in both courts.

O'Daly J dissented on the substantive issue. He considered that, in the face of the denials by the defendants that they had attempted to impede the progress of the loading up of the cattle and the failure by the plaintiff to cross-examine them on their affidavits, he could not hold that this default had been proven. He then agreed with the trial judge's finding. O'Daly J added:

“However, my personal agreement is of no real moment. It is enough that an order for committal is discretionary, that there was no error of principle on his part in the way he approached the evidence, that he is not shown not to have acted judicially, and that otherwise, in the phrase used by Jessel MR, in Jarmain v Chatterton44 and repeated by the members of the English Court of Appeal in Re Wray,45 there was no 'gross miscarriage' in his Lordship's refusal of an order for committal.”46

On one issue the Court was unanimous. The defendants argued that the injunction restrained only interference with the Committee individually and did not extend to his agents and servants; and that thus interference with the auctioneer could not constitute a breach of the injunction. Rejecting this


39

Id.

40

Id.

41

Id.

42

Id.

43

Id.

44

20 Ch D 493 (1882).

45

26 Ch D 138.

46

96 ILTR, at 40.



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argument, Lavery J (with whom Maguire J concurred) said:

“In my opinion the circumstances of the case and indeed the necessity of the case makes it clear that any intelligible construction of the order must extend its operation to the servants or agents of the Committee through whom he must act.”47

And O'Daly J said:

“Interference with or obstruction of the acts of duly appointed agents of the Committee ... are plainly interference with and obstruction of the Committee of the estate in the management of the lands. The meaning of the order is too clear to admit of a refinement which the defendants seek to make.”48

(D) Mens Rea

(i) In general

As regards mens rea in relation to the breach of injunctions in Stancombe v Trowbridge UDC49 Warrington J made the following “classic exposition”50 of the law on this question:

“If a person or corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach of the injunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order.”

But this does not mean that a defendant who fails to comply with an injunction is absolutely liable: the test thus favoured seems to be one of strict liability in the sense that the absence of negligence or intention to disobey will not exempt.51 Such a test would excuse a defendant where it was impossible for him to comply with the injunction, but the onus of showing this would lie on him.52


47

Id, at 38.

48

Id, at 41.

49

[1910] 2 Ch 190, at 194.

50

Borrie & Lowe, 400.

51

Cf Re Agreement of Mileage Conference Group of Tyre Manufacturers' Conference Ltd, [1966] 2 All ER 849, at 862.

52

Cf Lewis v Pontypridd, Caerphilly, and Newport Ry Co 11 TLR 203 (1895).



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(ii) Of companies

A matter yet to be resolved by our courts concerns the extent to which a distinction is to be drawn between the requirement53 in respect of companies that the disobedience be wilful before sequestration may be obtained against the corporate property. No such express requirement applies in relation to attachment or committal. In England, in a decision54 dealing with a case where wilful disobedience by a company had to be established, Lord Russell CJ said:

“We desire to make it clear that in such cases no casual or accidental and unintentional disobedience of an order would justify commitment or sequestration. Where the court is satisfied that the conduct was not intentional or reckless, but merely casual and accidental and committed under circumstances which negative any suggestion of contumacy, while it might visit the offending party with costs and might order an inquiry as to damages, it would not take the extreme course of ordering either of commitment or of sequestration.”

In England the matter has since been clarified, in Heatons Transport (St Helens) Ltd v Transport and General Workers' Union.55

As regards responsibility for a breach of an injunction, clearly the person who must obey the order is responsible if he or she breaches it. Where an injunction is granted against a married couple and one of the spouses breaches it, the other spouse, if innocent of any complicity, will not be liable.56

The question of the extent (if any) to which mental illness might vitiate the mens rea requirement arose in the Supreme Court decision of The State (H) v Daly.57 In this case the psychiatric evidence, admitted de bene esse, was to the effect that the prosecutor had been suffering for many years from a deep-seated condition of paranoia which made it impossible for him, as a result of a mental disease, to accept the correctness or validity of any decision of the Circuit Court – particularly with regard to the dispute between himself and his brother concerning land, which was the basis of the original injunction against the prosecutor – and which, “therefore, prevent[ed] him from acting properly ... and render[ed] him, in the opinion of [the psychiatrist], not a free agent because he [was] acting under very strong delusion”.58 In the opinion of the psychiatrist, the delusions and his mental condition did not prevent the prosecutor from understanding the consequences of what he was doing, nor the consequences of refusing to purge his contempt. The psychiatrist considered that the prosecutor required, in his own interest, continued


53

Order 42, rule 32 of the Rules of the Superior Courts 1986, discussed further below.

54

Fairclough & Sons v Manchester Ship Canal Co (No. 2), 41 Sol J 225 (1897).

55

[1973] AC 15.

56

Hope v Carnegie, LR 7 Eq 254 (1868).

57

[1977] IR 90 (Sup Ct, 1976).

58

Id, at 93 (per Finlay, P).



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institutional medical treatment for his mental condition. On the question whether the prosecutor's insanity excused the civil contempt, O'Higgins CJ said:

“Since the basis of the prosecutor's transfer to the Central Mental Hospital was a certificate to the effect that he had become insane, the question also arose as to whether such insanity could have excused the civil contempt and avoided the original order of committal. I have considered very fully the evidence adduced in relation to this and I am satisfied that whatever degree of mental illness the prosecutor suffered it was not such as rendered him incapable of knowing fully what he was doing. Therefore, without considering further whether in such circumstances mental illness may be a bar to an order for committal, I am satisfied that the degree and nature of such illness in this case could not be considered a reason why an order for committal should not have been made.”59

(E) Apology

In Little v Cooper (No. 2),60 defendants who had trespassed on the plaintiff's fishery in conscious breach of an injunction offered an undertaking that they would not do so in the future. They also offered to apologise to the Court. Johnston J was not impressed and ordered that they be committed. He said:

“I ... question the reality of the apology ... I am satisfied that these parties wish to gain more time in order to despoil the plaintiffs' property further before the fishing season ends, as it will very shortly. This meagre apology, unsupported by affidavits or written statements of any kind, without any offer of amends to the plaintiff, is probably as much of an insult to the process of the Court as is the poaching itself.”61

During the hearing of the motion, Johnston J had asked why “the police” in Ballina had made no move to protect the plaintiffs' property. He was told that in the previous years the police had interfered to some extent but that the officers of the Civic Guard (sic) who were responsible for that course had been removed from that neighbourhood. He responded:

“I cannot accept the suggestion that lies at the back of that statement. Such a suggestion means that rank anarchy exists in the West of Ireland, and I repudiate such a suggestion and cannot take it into account for a moment.”62


59

Id, at 97–98.

60

[1937] IR 510 (High Ct, Johnston J).

61

Id, at 512.

62

Id, at 512–513.



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(F) Third parties

Those, not defendants in injunction proceedings, who act contrary to the terms of the injunction when they know of its existence and terms are guilty of contempt.63 Their participation may of course extend to aiding and abetting the defendant, but liability attaches on the basis of the third parties' own wrong.

In Smith-Barry v Dawson,64 the plaintiff had obtained an order against certain persons, their servants and agents, restraining them from disturbing the plaintiff's markets and fairs. Copies of the injunction had been conspicuously posted in the Fair Green (according to an affidavit filed on behalf of the plaintiff). The defendant said that he had cautioned some of the persons named in the injunction against engaging in sales and weighing produce without paying tolls. Two persons, in disobedience of the injunction (though apparently they had not been named in it), had acted as weigh-masters.

Counsel for the plaintiff said:

“This action is in the nature of a bill of peace; and therefore the plaintiff is entitled to have third persons who have disobeyed the injunction attached. Even if the action were not one to quiet possession, if third parties identify themselves with persons whom the Court has restrained, and place themselves in the position of workmen and agents of those named in the order, they are liable to attachment: Weale v West Middlesex Waterworks Co65; Downshire v O'Brien66; Avory v Andrews.67 Such an order has been made in the Killiney Foreshore Case.68 This is a mere attempt to evade the order of the Court.”

There was no appearance for the parties served with notice against whom the order was sought.

The Vice-Chancellor said:

“It has been clearly shown that these parties are liable to attachment. With full knowledge of the judgment pronounced by the Court, which is a judgment to quiet Mr Smith-Barry in possession of his patent rights to hold markets and fairs in the town of Tipperary, and to receive the customs and tolls thereof, these parties have acted in direct


63

See Borrie & Lowe, 403–406, Smith-Barry v Dawson, 27 LR (Ir) 558 (Chatterton VC, 1891), Moore v AG, [1930] IR 471, at 486–487 (Sup Ct, per Kennedy CJ) Little v Cooper (No. 2), [1937] IR 510 (High Ct, Johnston J), Seaward v Paterson, [1897] 1 Ch 545, Z Ltd v AZ and AA-LL [1982] QB 558, Society for the Protection of Unborn Children (Ireland) Ltd v Coogan, [1990] ILRM 70 (Sup Ct, 1989).

64

27 LR Ir 558 (Chatterton VC, 1891).

65

1 Jac & W 358, at 369.

66

19 LR Ir 380.

67

30 WR 564.

68

Unreported.



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contravention of its terms, and are, in my opinion, in just the same default as the original defendants would have been if they had done similar acts. The cases cited clearly establish the right to have these attachments issued, and nothing can be more in point than the Killiney Foreshore Case.69 But even without any of these authorities, ordinary common sense would show that persons cannot be allowed to set at defiance the order of the Court because they do not happen to be named in the injunction.”70

In the Supreme Court decision of Moore v AG,71 Kennedy CJ noted that a number of English cases72 had laid down that a motion to attach a third party is technically wrong because he is not bound by the injunction, but that he may be committed for contempt of court “because he is acting so as to obstruct the course of justice”.

In Little v Cooper (No. 2),73 the plaintiffs had obtained an injunction perpetually restraining the defendants, their servants and agents from fishing the entire tidal portion of the waters of the River Moy to which the plaintiff's were declared by the Court to be entitled. Certain other persons, not parties to the action, but with knowledge of the existence of the injunction, together with some of the defendants, fished the plaintiffs' portion of the river without leave.

Johnston J held that the plaintiffs were entitled to an order attaching all of the persons so fishing. He noted that there was “no question as to the knowledge of all of these persons of the injunction ....”74 There was “no question as to the illegality of their conduct”.75 He went on:

“The litigation, as well as the result of that litigation, is notorious in Ballina, and indeed in the whole of the West of Ireland. No litigation for years has roused so much interest. I am satisfied beyond all doubt that these persons trespassed upon the fishery and took the salmon of the plaintiffs in huge numbers, in clear defiance of the injunction granted by this Court ....”76


69

Supra.

70

27 LR Ir, at 559–560. See also Johnson v Moore, [1965] NI 128 (Chy Div, Lowry J, 1964). See also AG v Newspaper Publishing plc [1987] 3 All ER 276.

71

[1930] IR 471, at 486 (Sup Ct).

72

Seaward v Paterson, supra, Brydges v Brydges, [1909] P187, at 191 (per Farwell LJ), Ranson v Platt, [1911] 2 KB 291, at 307 (per Farwell LJ) and Scott v Scott, [1913] AC 417, at 457 (per Lord Atkinson).

73

[1937] IR 510 (High Ct, Johnston, J).

74

Id, at 512.

75

Id.

76

Id. As to the position of banks and other third parties in relation to Mareva injunctions, see Z Ltd v AZ, [1982] 1 All ER 556, Keane (Equity), paras 15.38 ff. See further Zuckerman, Practice and Procedure, All ER 1989, 212, at 212ff.



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(G) Court's discretion as to whether or not to order committal or attachment

The Court has a discretion as to whether or not to order committal or attachment even where the defendant's default is clear. In Ross Co. Ltd (in receivership) and Shorthall-Swan,77 O'Hanlon J described as “correct and prudent”78 the principle enunciated by the English Court of Appeal in Danchevsky v Danchevsky,79 to the effect that the power to commit to prison for civil contempt, for disobedience to the court's orders, was a jurisdiction that should not be exercised when it was unlikely to produce the desired result and where there was some reasonable alternative course available. O'Hanlon J went on to say:

“It is undesirable that the High Court should commit to prison for an indefinite period a person who has no intention of obeying the order of the court, and who may even welcome the publicity he gains by the making of such an order as a means of furthering his own course. If no other reasonable course is open, then the order may have to be made to vindicate the authority of the court. If some other reasonable course is open, then it is preferable that it should be adopted.”80

In Ross the defendants (who included two members of the executive of a trade union) were deliberately disobeying an order of the court restraining trespass with no intent to purge their contempt in the future. The plaintiffs applied for an order for attachment and/or committal. O'Hanlon J was of opinion that a sufficient case for attachment and imprisonment for contempt had been made out. But he considered that an alternative course was in the circumstances preferable. Since the case appeared to fall squarely within the scope of the Prohibition of Forcible Entry and Occupation Act 1971, which had been passed “specifically to deal with the kind of unlawful conduct which [was] admitted to have taken place”,81 it seemed to O'Hanlon J that the better course would be for the Gardai to use the powers of arrest under section 9 of the Act.

In Clarke v Smith,82 the defendant had been committed for contempt of court for refusal to obey an interim injunction against trespassing on the plaintiffs lands. The defendant later undertook not to repeat the acts complained of and agreed to judgment being entered against him in the action; he swore that he was unable to pay any of the costs, as he was an unemployed labourer without any means.

Barton J was satisfied that, if he was to make an order making the payment of costs a condition precedent to discharge, it would be one “which the


77

[1981] ILRM 416 (High Court, O'Hanlon, J). See further Kerr & Whyte, 334–336.

78

Id, at 417.

79

[1974] 3 All ER 934 (CA).

80

[1981] ILRM at 417.

81

Id, at 418. See further Kerr & Whyte, 313–315.

82

48 ILTR 244 (High Ct, Barton J, 1914).



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defendant could not comply with”.83 Accordingly he ordered the defendant's discharge, leaving the plaintiff to enforce the payment of the costs as he might be advised.

(H) The Breach of an undertaking

A party who either personally or through his or her solicitor gives an undertaking to the Court is under the same obligation to abide by its terms as if it were an injunction.84 The same rules as to the clarity of terms, proper notice and breach apply here as apply in respect of injunctions.85

In Re H, a Bankrupt,86 the defendant was ordered by the court, and undertook to the court, to give up possession of certain lands before a certain date. He was still in possession after that date, and the order served on him subsequently. An application to have the defendant committed for contempt was unsuccessful so far as it was based on the order but successful (subject to a stay) so far as it related to the undertaking. O'Byrne J said:

“... [I]t appears from the affidavits that the order was not served until ... a considerable time [after the date on which possession had been ordered to be given up]. Accordingly, if this were merely an application for an order for attachment based on the order, I would be bound to refuse it, but it is also an application for an order committing [the defendant] to jail for failing to carry out an undertaking given by him to the court. It appears from the order that [the defendant] appeared and gave evidence, and gave an undertaking to give up clear possession. I am satisfied that so far as the undertaking is concerned there was no necessity for the Official Assignee to serve on [the defendant] a copy of the order in which it is recorded for the purpose of eventually taking steps to enforce it.

“It is clear that an undertaking was given in Court, and it is clear that it was not carried out. I am satisfied that [the defendant] is guilty of contempt of Court, and that he ought to be committed for that contempt.”87

(1) Execution: General Principles

Order 42 of the Rules of the Superior Courts 1986 deals with execution and execution orders. An “execution order” includes orders of fieri facias, sequestration and attachment and all subsequent orders that may issue for


83

Id, at 244.

84

Borrie & Lowe, 406.

85

Id.

86

70 ILTR 199 (High Ct (In Bankruptcy), O'Byrne J, 1936). See also Re H, An Arranging Debtor, IR 11 Eq 106, 334 (1877), In re M & R, Arranging Debtors, 30 ILTR 137 (CA, 1896), In re Birt, An Arranging Debtor, [1906] 2 IR 452 (CA).

87

Id, at 200. Cf Century Insurance Co Ltd v Larkin, [1910] 1 IR 91 (Meredith MR).



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giving effect to any of these orders.88

A judgment for the recovery by or payment to any person of money may be enforced by execution order (or by any other mode authorised by the Rules or by law).89 A judgment for the payment of money into court may be enforced by an order of sequestration, or, in cases where attachment is authorised by law, by attachment.90 A judgment for the recovery or delivery of the possession of land may be enforced by order of possession.91 A judgment for the recovery of any property other than land or money may be enforced in three ways: (a) by order for delivery of the property; (b) by order of attachment; and (c) by order of sequestration.92

Of particular practical relevance in relation to contempt of court is the rule that a judgment requiring any person to do any act other than the payment of money, or to abstain from doing anything, may be enforced by order of attachment or by committal.93 As regards companies, the position is as follows. Any judgment or order against a company wilfully disobeyed may, by leave of the Court, be enforced by sequestration against the corporate property, by attachment against the directors or other officers of the company, or by order of sequestration against their property.94

(i) Sequestration

Sequestration “was and is a process of contempt.”95 It is a drastic remedy designed to coerce rather than punish.96 Thus in Con-Mech Ltd v Amalgamated Union of Engineering Workers,97 Sir John Donaldson, P said:–

“A sequestration order is quite different from a fine. If someone is fined the money is lost to him forever. If his assets are sequestered the money remains his but he cannot use it. The money stays in the sequestrator's possession until the court orders what shall be done with it. The man can come to the court at any time and ask for the money to returned to him, but if he does so the court will require some explanation of his conduct.”

The Rules contain four bases of entitlement to sequestration. These are:


88

Order 42, rule 8.

89

Id, rule 3.

90

Id, rule 4.

91

Id, rule 5.

92

Id, rule 6.

93

Id, rule 7.

94

Id, rule 32.

95

Pratt v Inman, 43 Ch D 175, at 179 (per Chitty J, 1889).

96

Cf Borrie & Lowe, 429, Miller, 447.

97

[1973] ICR 620, at 627.



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(i)


judgments for the recovery by or payment to any person of money;98


(ii)


judgments for the payment of money into Court;99


(iii)


judgments for the recovery of any property other than land or money;100


(iv)


judgments or orders against a company which are wilfully disobeyed.101

Order 43, rule 2 provides as follows:

“Where any person is by any judgment or order directed to pay money into Court or to do any other act in a limited time, and after due service of such judgment or order refuses or neglects to obey the same according to the exigency thereof, the person prosecuting such judgment or order shall, at the expiration of the time limited for the performance thereof, be entitled, without obtaining any order from the Court for that purpose, to issue an order of sequestration ..., against the estate and effects of such disobedient person.”

Any person thus entitled to issue an order of sequestration must, before doing so, apply to the Master to approve one or more sequestrators, and obtain directions as to his or their security and accounting.102 On a certificate103 from the Master of the approval of the nominee or nominees, the order may issue directed to the sequestrator or sequestrators.104 One sequestrator only is named in the order, unless the Court otherwise directs.105

The prescribed106 Form of order of sequestration, addressed to the sequestrator or sequestrators, gives him or them:

“full power and authority to enter upon all the messuages, lands, tenements and real estate whatsoever of the [defendant], and to collect, receive, and sequester into your hands not only all the rents and profits of his said messuages, lands, tenements and real estate, but also all his goods, chattels, and personal estates whatsoever ....”

The sequestrator or sequestrators must, under command, thus acquire all the defendant's real and personal estates, and keep them under sequestration until the defendant does what he was ordered to and clears his contempt, and the


98

Order 42, rule 3.

99

Id, rule 4.

100

Id, rule 6.

101

Id, rule 32.

102

Order 43, rule 3.

103

This certificate must be filed in the Central Office: Id, rule 3.

104

Id.

105

Id.

106

Form No. 17 in Appendix F, Part II, of the Rules.



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High Court makes “other order to the contrary”.107

It seems clear that Order 32, rule 2 is limited to the four bases of entitlement to sequestration already mentioned. As we have seen, Order 42, rule 7 expressly limits the modes of enforcement for judgments requiring a person “to do any act other than the payment of money, or to abstain from doing anything”, to attachment and committal. Moreover, the phrase “to pay money into Court or to do any other act in a limited time” in Order 43, rule 2, while, on one interpretation being capable of a wide meaning, must be read in the light of the ejusdem generis rule, so as to limit such other acts to those already identified.

What is striking about the Irish Rules, in contrast to the position in England,108 is that109 the entitlement to issue a writ of sequestration is not conditional on obtaining any order from the Court for that purpose.110 The Master's role is not to grant leave to issue the writ but merely to approve of the sequestrator or sequestrators, and give directions as to his or their security, and accounting.111

We have already noted that a judgment or order against a company, which is “wilfully disobeyed”, may, by leave of the Court, be enforced by (inter alia) sequestration against the corporate property. Here, mere breach of the judgment or order will not suffice: the disobedience has to be wilful. In England (prior112 to abandonment of the wilfulness requirement), “[t]here were differing views as to what the word 'wilful' meant and indeed in one case it was held that no contempt at all was committed since the order had not been contumaciously disregarded. ....”113

As we have seen, the range of property which the sequestrators may take and “get into [their] hands” is impressively broad; but there are some limits. Property of which the defendant merely is a trustee does not come within its scope,114 nor a fund in court which is liable to solicitor's lien in another suit,115 nor choses in action which are not alienable – such as a pension where alienation is prohibited by statute.116


107

Id.

108

See Borrie & Lowe, 429, Miller, 447.

109

Subject to an exception in relation to companies, which we mention in detail presently.

110

Cf Order 43, rule 2.

111

Cf Id, rule 3.

112

Under former Order 42, rule 31.

113

Borrie & Lowe, 439.

114

Id, 434, citing 17 Halsbury para 511 (4th ed).

115

Id, citing Munt v Munt, 2 Sw and Tr 661 (1862).

116

Id, citing Birch v Birch, 8 PD 163 (1883) and Lucan v Harris, 18 QBD 127 (1886).



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The sequestrators do not acquire a charge over the property they seize. In Re Pollard, ex p Pollard,117 Romer LC said:

“When the sequestration issues and the sequestrators seize under it property of the debtor, what result follows? I need scarcely point out that the seizure by the sequestrators does not convert the property seized into the property of the creditor. The next question is: Does the mere seizure by the sequestrators give the creditor a charge upon each part of the property of the debtor, which has been seized? The answer must be: Clearly it does not. It does nothing of the kind. In order that the creditor should obtain a special charge upon some specific part of the property seized under the writ, he must go further, and must obtain some order giving him a special right to or charge on the specific part of the property.”

As we have already noted, where sequestrators get property into their hands they are required to “detain and keep [it]”118 until the defendant does what he ought and clears his contempt, and the High Court makes “other order to the contrary”.119 There appear, however, to be some circumstances in which the sequestrators' powers extend beyond detainer. In Hipkin v Hipkin,120 the court considered itself entitled to authorise sequestrators to sell freehold land where the contemnor had already agreed to convey it; and it appears that the court may, on application, authorise the sale of personal property.121

(ii) Attachment and Committal

Borrie & Lowe122 state:

“Formerly, courts of common law and Chancery proceeded summarily in cases of criminal contempt either by attachment or by committal. The main difference between the processes lay in the means of execution: in the case of an attachment the person is seized by the sheriff's officer acting under a writ of attachment issued by leave of the court, but in the case of a committal the process was less formal and more direct, the offender being seized by the tipstaff acting under the orders of the judge.123 In R v Lambeth County Court Judge and Jonas,124 Wills J commented that there was no practical difference between a


117

[1903] 2 KB 41, at 47. As to the position of third parties see Borrie & Lowe, 431–432; Miller, 449–451; Bucknell v Bucknell, [1969] 2 All ER 998, Eckman v Midland Bank, [1973] 1 All ER 609.

118

Form No. 17 in Appendix F, Part II of the Rules of the Superior Courts 1986.

119

Id.

120

[1962] 2 All ER 155.

121

Borrie & Lowe, 434.

122

Id.

123

Borrie & Lowe citing Oswald, 3rd ed, 1911, pp23–32 and The Annual Practice 1966, pp1071–73.

124

36 WR 475 (1887).



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committal and an attachment: 'One was enforced by the tipstaff of the Court, and the other by the Sheriff. That is all the distinction, and it comes to little if anything'.

However, it must be remembered that while either remedy was available in cases of criminal contempt, this was not true in cases of civil contempt where there were a number of technical rules determining which remedy was available in which circumstances. In these cases the applicant chose his remedy at his peril and a wrong choice was fatal to the action.”125

Order 44 of the Rules of the Superior Courts 1986 sets out the procedural requirements relating to attachment and committal. An order of attachment directs that the person against whom the order is directed is to be brought before the Court to answer the contempt in respect of which the order is issued.126 The order is directed to the Commissioner and members of the Garda Siochana, reciting the High Court adjudication that the defendant should be attached on the ground that he was in default in a specified manner, and commanding them to attach the alleged contemnor so as to have him before the High Court; there to answer for the contempt which by reason of such default it is alleged he has committed against the High Court, as well as such other matters as shall then and there be charged against him, and further to perform and abide such order as the High Court shall make on his behalf....”127

An order for committal directs that, upon his arrest, the person against whom the order is directed is to be lodged in prison until he purge his contempt and is discharged pursuant to further order of the court.128 The order is directed to the Commissioner and members of the Garda Siochana. It recites that the contemnor has been adjudged guilty of contempt of the High Court for specified default and that he stand committed to prison for this contempt129; it then commands them to arrest the contemnor and lodge him in a named prison, there to be detained until he purge his contempt and is discharged pursuant to further order of the High Court.130

As a general rule, no order of attachment or committal may be issued except by leave of the Court to be applied for by motion on notice to the party against whom the attachment or committal is to be directed.131 The two


125

Citing Kemp v Kemp, Times, 26 November 1957, and The Annual Practice 1966, pp1071–73.

126

Order 44, rule 1.

127

Form 11 in Appendix F, Part II of the Rules.

128

Order 44, rule 2.

129

Form No. 12 in Appendix F, Part II.

130

Id. The Form of Order of Committal of Judgment Debtors (No. 13), is somewhat different. This is considered further below.

131

Order 44, rule 3.



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exceptions132 are committal for contempt in the face of the Court and committal after a person has been brought before the Court on his arrest where an order of attachment was directed against him.133 In the latter case, the Court before which the person is brought on his arrest need not necessarily commit him to prison for his contempt: if it does so, it may specify a definite period in the order or the duration may be until he purges his contempt and is discharged by further order of the Court, but it may alternatively discharge him on such terms and conditions as to costs or otherwise as it thinks fit.134

Verbal differences between the injunction order and Notice of Motion will not vitiate the application for committal if they are of no account. Thus, in Gore-Booth v Gore-Booth,135 the Supreme Court unanimously136 rejected the contention by the defendant that a significant difference could be drawn between “obstructing or hindering” the injunction and “obstructing or interfering with” the Notice of Motion.

A person against whom an order of committal is directed may apply to the Court to discharge the order.137 This application is by motion on notice to the party at whose instance the order of committal was made.138 Where on the hearing of that motion the Court discharges the order of committal, the Court may do so on such terms and conditions as to costs or otherwise as it thinks fit.139

The court may make an order of attachment where the application is for an order of committal, and vice versa.140

(iii) Disobeying order to pay money into court

Save in cases where it relates to a payment in the nature of a debt,141 a judgement or order requiring a person to pay money into court does not fall within the scope of sections 5 or 6 of the Debtors Act (Ireland) 1872; thus the normal remedies of attachment and sequestration are available.142 An example of such an order is one for security for costs.143


132

Id.

133

Id, rule 4.

134

Id.

135

96 ILTR 32 (Sup Ct, 1956).

136

Cf id, at 38, 41.

137

Order 44, rule 5.

138

Id.

139

Id.

140

Id, rule 6.

141

As to which at Farrant v Farrant, [1957] P 188 (PDA Div, Sachs J, 1956).

142

Rules of the Superior Courts 1986, Order 42, rule 4. See also Borrie & Lowe 410–411, Bates v Bates, 14 PD 17 (1888).

143

Bates v Bates, supra.



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(iv) Disobeying a judgment or order for possession of land or delivery of goods within specified time

Where a person is directed by a judgment or order to deliver up or transfer any property real or personal to another, that other is not obliged to make any demand for it and the person thus directed is bound to obey the judgment or order on being duly served with it.144

A judgment for the delivery of the possession of land may be enforced by order of possession.145 This order, replacing the former writ of possession,146 is one of the Court bearing the day of issue and authenticated in like manner as an originating summons.147 The prescribed form148 of the order commands the Sheriff or County Registrar to enter the lands and premises and “without delay” to cause the person named in the order to have possession of them.

Where a person fails to obey a judgment or order requiring him or her to deliver up possession of any lands to another, that other, without any order for that purpose, is entitled to sue out an order of possession on filing an affidavit showing due service of the judgment or order, and that it has not been obeyed.149 The mode of proving service of all notices under The Land Law (Ireland) Act 1887 and the dates of service is by affidavit.150

On any judgment or order for the recovery of any land and mesne profits, arrears of rent, double rent, damages or costs, there may be either one order or separate orders of execution for the recovery of possession and for the mesne profits, arrears of rent, damages or costs at the election of the successful party.151

On every order of possession issued before the expiration of the period of redemption in any action for the recovery for non-payment of rent for a holding to which the Land Law Acts apply, there must be a statement of the amounts payable in respect of rent and cost for redemption; and if at any time before execution the defendant pays the sheriff these amounts, the sheriff must stay the execution.152 A similar rule applies to orders of possession in actions for the recovery for non-payment of rent of land to which the Land Law Acts do not apply.153

A judgment for the recovery of any property other than land may be enforced by (a) order for delivery of the property (b) order of attachment and (c) order


144

Order 42, rule 1.

145

Id, rule 5.

146

Order 47, rule 1.

147

Id.

148

Forms Nos. 5 to 7 in Appendix F, Part II.

149

Order 47, rule 2.

150

Id, rule 4.

151

Id, rule 7.

152

Id, rule 8.

153

Id, rule 9.



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of sequestration.154 Where the third option is preferred, the Court, on the application of the plaintiff, may order that execution is to issue for the delivery of the property, without giving the defendant the option of retaining the property, or paying the value assessed, if any, and that, if the property cannot be found, and unless the Court orders otherwise, the sheriff is to distrain the defendant by all his lands and chattels, in the sheriff's bailiwick, until the defendant delivers the property; or, at the option of the plaintiff, that the sheriff cause to be made of the defendant's goods the assessed value, if any, of the property.155

(v) Disobedience of orders for interrogatories, or for discovery, or inspection of documents

As we have seen, a party who fails to comply with an order to answer interrogatories, or for discovery or inspection of documents is guilty of contempt and liable for attachment.156 Moreover, he is also, if a plaintiff, liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, “and the party interrogating may apply to the Court for an order to that effect, and an order may be made accordingly”. (It may be presumed that this draconian power will not be exercised too prodigally: such a course would scarcely be consistent with the dictates of the Constitution).

Service of an order for interrogatories or discovery or inspection made against any party on his solicitor is sufficient service to found an application for an attachment for disobedience to the order; but a party against whom the application for attachment is made may show in answer that he has had no notice or knowledge of the order.157 A solicitor guilty of neglecting without reasonable excuse to give notice to his client of having been served with such an order in respect of the client is liable to attachment.158

Non-parties ordered to answer interrogatories or to make discovery or permit inspection of documents are also liable to attachment.159

It has been stated that “[b]efore a person can be guilty of contempt for not producing documents pursuant to a court order, it must be proved beyond all reasonable doubt that the defendant, at the time that the order is made, has


154

Order 42, rule 6.

155

Order 48, rule 1. See further McMahon & Binchy, 531–533, General & Finance Facilities Ltd v Cooks Cars (Romford) Ltd, [1963] 1 WLR 644, at 651 (per Diplock LJ), Juhlinn-Dannfelt v Crash Repairs Pty Ltd, [1969] QWN 1 (Hoare J, 1967), Waterford Corporation v O'Toole, High Ct, Finlay J, 9 November 1979 (1969–271 Sp) Webb v Ireland, [1988] ILRM 565 (High Ct, Blayney J 1986 rev'd on other grds by Sup Ct, 1987).

156

Order 31, rule 21.

157

Id, rule 22.

158

Id.

159

Id, rule 29.



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possession of the documents, so that he is able to produce them”.160

In this context it is worth noting the rule that any person wilfully disobeying any order requesting his attendance for the purpose of being examined or producing any document is deemed guilty of contempt of Court, and may be dealt with accordingly.161 Moreover parties and witnesses summoned to attend before the Master of the High Court are bound to attend and are liable to process of contempt in like manner as in the case of disobedience to any order of the Court.162 The Master's powers include those of requiring the production of documents, taking affidavits and examining parties and witnesses either by interrogatories or viva voce.163

(vi) Disobeying orders of habeas corpus or related orders

As we have seen, if a person to whom an order of habeas corpus is directed disobeys the order, application may be made, on an affidavit of service and disobedience, for an attachment for contempt.164 Similarly the failure to comply with an order for mandamus, prohibition or certiorari also constitutes contempt.165

(vii) Enforcement of the payment of a sum of money

Although it amounts technically to a contempt to disobey a judgment or order for the payment of a sum of money,166 it has not been possible for the plaintiff normally to obtain an order for committal on this basis since the enactment of the Debtors Act (Ireland) 1872. Section 5 of that Act sets down the general principle that, subject to the exceptions mentioned below, “no person [is to] be arrested or imprisoned for making default in payment of a debt167 ....”

Section 5 sets out six exceptions to the rule of non-imprisonment. These are:


1.


Default in payment of a penalty, or sum in the nature of a penalty, other than a penalty in respect of any contract;


160

Borrie & Lowe, 414, citing Re Bramblevale Ltd, [1970] Ch 128, and adding: “cf Re Rossminster Ltd and Tucker (1980) Times, 23 May”.

161

Order 39, rule 7.

162

Order 63, rule 8.

163

Id. See also the Bankruptcy Act 1988, sections 24, 123 and 128, the Charities Act 1961, section 42(1) the Ombudsman Act 1980, section 7, the Companies (Amendment) Act 1990, section 8(5) and the Companies Act 1990, sections 10(5), 18, 19(6) and 126.

164

Order 84, rule 12. See further In re Earle, [1938] IR 485 (Sup Ct, 1937), Egan v Macready, [1921] 1 IR 265 (O'Connor, MR).

165

See Borrie & Lowe, 417, Wade, 630, R v Poplar Borough Council (No. 2), [1922] 1 KB 95, R v Worcester Corporation, 68 JP 130 (1903), R v Leicester Union, [1899] 2 QB 632. As to quo warranto, see Power v Lucas, IR 11 CL 44 (QB, 1876).

166

Leavis v Leavis, [1921] P299. See Borrie & Lowe, 456.

167

Thus section 5 does not extend “to orders to deliver bills or cheques or to deposits or to hand over bonds”: Borrie & Lowe, 456–457, citing Linwood v Andrews, 31 Sol J 410 (1887) and Dibgy v Turner, [1873] WN 65.



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2.


Default in payment of any sum recoverable summarily before a justice or justices of the peace;


3.


Default by a trustee or person acting in a fiduciary capacity and ordered to pay by a court of equity any sum in his possession or under his control;


4.


Default by an attorney or solicitor in payment of costs when ordered to pay costs for misconduct as such, or in payment of a sum of money when ordered to pay the same in his character of an officer of the court making the order;


5.


Default in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any court having jurisdiction in bankruptcy or insolvency is authorised to make an order;


6.


Default in payment of sums in respect of the payment of which orders are in this Act authorised to be made

The powers exercisable under section 5 are considered by the courts to be of a penal rather than a remedial nature168. In Middleton v Chichester,169 Lord Hatherley LC observed that “in every case there is something of the character of delinquency pointed out”. In the same case, Lord Hatherley said:

“The exceptions are all of a character which indicates that the Legislature wished merely to limit the term of imprisonment in regard to certain debts which were not simple debts, contracted in the ordinary intercourse between man and man, where credit is given by one person to another, but were debts the incurring of which was in some degree worthy of being visited with punishment.”170

It is necessary that the order of committal under section 5 should state on its face which of the excepted cases is applicable.171

A proviso to section 4 states that no person is to be imprisoned in any case excepted from the operation of the section for a period of longer than a year.

Section 6 of the Act empowers “any court” to commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due to him in pursuance of any order or judgment of that or any other competent court. The first proviso to the section is that jurisdiction to commit, in the case of


168

Borrie & Lowe, 459 (citations omitted).

169

6 Ch App 152, a 157 (1871).

170

Id, at 156.

171

In re Byrne, 6 LR Ir 455 (QB Div, 1880).



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any court other than “the superior courts of law and equity”, is only to be exercised subject to a number of restrictions as to jurisdiction.

The second proviso to the section is to the effect that this jurisdiction is to be exercised only where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses and neglects, to pay the same.

Several other miscellaneous features of section 6 may be noted.

Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules.

Any jurisdiction by the section given to the superior courts may be exercised by a judge sitting in chambers, or otherwise, in the prescribed manner.

For the purposes of the section any court may direct any debt due from any person in pursuance of any order or judgment of that or any other competent court to be paid by instalments, and may from time to time rescind or vary the order.

Persons committed under the section by a superior court may be committed to the prison in which they would have been confined if arrested on a writ of capias ad satisfaciendum, and every order of committal by a superior court is, subject to the prescribed rules, to be issued, obeyed, and executed in the like manner as such writ.

No imprisonment under the section is to operate as a satisfaction or extinguishment of any debt or demand or cause of action, or deprive any person of any right to take out execution against the lands, goods, or chattels of the person imprisoned, in the same manner as if such imprisonment had not taken place.

Any person imprisoned under the section is to be discharged out of custody upon a certificate, signed in the prescribed manner, to the effect that he has satisfied the debt or instalment of a debt in respect of which he was imprisoned, together with the prescribed costs (if any).

The Rules of the Superior Courts 1986 contain several provisions relating to the 1872 Act. The Court, in making an order for committal to prison under section 6, may either make that imprisonment determinable on payment of the whole sum in respect of which the person to be imprisoned is in default, together with such costs as it thinks fit, or may order the debt to be paid by such instalments as it thinks fit and make the imprisonment determinable on payment of such costs and such instalments as it thinks fit; and in either of

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these cases the Court may direct payment of a sum in gross in lieu of taxed costs.172

Orders of committal under the Act are to be in one of the prescribed forms.173 Two copies of each order are to be delivered to the Commissioner of the Garda Siochana, endorsed with particulars as to the address and description of the party against whom the orders are sought.174

The member of the Garda Siochana executing the order of committal must “forthwith” after the arrest indorse on each copy of the order the date of the arrest and leave one copy with the Governor of the prison where the debtor is lodged and within two days return the other copy of the order to the solicitor of the person prosecuting the judgment or order (or the person himself if he acts in person).175

On payment of the sum or sums in that behalf mentioned in the order of committal, and the costs or gross sum in lieu of costs, made payable by the order, the person committed is entitled to a certificate of payment,176 signed by the solicitor of the person prosecuting the judgment or order (or, if the person is acting in person, signed by him and attested by a solicitor or peace commissioner).177

Order 44, rule 13 provides as follows:

“No application made under the said section 6 nor any order made thereon, shall in any manner vary or suspend any of the remedies which the person prosecuting the judgment or order which has been disobeyed would, if no such application had been made, have been entitled to against the property of the person disobeying the said judgment or order; but the person prosecuting such judgment or order may proceed to avail himself of such remedies without any regard to such application or to any order made thereon, except so far as he may, by such last mentioned order, be expressly restrained from availing himself of such remedies.”

This reflects the provision in section 6 to the effect that no imprisonment under the section is to operate as a satisfaction or extinguishment of any debt or demand or cause of action, or deprive any person of any right to take out execution against the lands, goods or chattels of the person imprisoned, in the


172

Order 44, rule 9.

173

Forms Nos 13 and 14 in Appendix F, Part II. These forms refer to committal to prison for a term not to exceed one year from the date of arrest. The maximum period under section 6 is six weeks (or until payment of the sum due). Section 5 provides for imprisonment for up to a year.

174

Order 44, rule 10.

175

Id, rule 11.

176

In the prescribed form: Form No. 15 in Appendix F, Part II.

177

Order 44, rule 12.



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same manner as if that imprisonment had not taken place. (A similar, more concise provision is also contained in section 5 with regard to persons imprisoned under that section).

Finally, in this context, Order 44, Rule 14 provides as follows:

“In case any order is made under the said section 6 for payment of a sum of money by instalments, and the person imprisoned shall, after his discharge from prison, neglect or refuse to pay the subsequent instalments or any of them, the person prosecuting the judgment or order in respect of which the said instalments were ordered to be paid, shall in addition to his remedies against the property of the person making default, be entitled to apply for orders of committal from time to time for non-payment of any one or more of such subsequent instalments.”

Section 8 of the 1872 Act should also be noted. It provides that sequestration against the property of a debtor who is not liable to be arrested or imprisoned after the commencement of the Act may, after the commencement of the Act, be issued by any court of equity in the same manner as if such debtor had been actually arrested.

The 1872 Act is only part of the story of enforcement of judgments. The Enforcement of Court Orders Act 1926, Part II, as amended by the Enforcement of Court Orders Act 1940, sets out a scheme for the examination of a debtor's means, and for the making and enforcement of instalment orders. The maximum period of imprisonment for failure to pay these instalment orders, through “wilful refusal” or “culpable neglect”, is three months. Immediate release is possible on the payment of the outstanding amount due on the instalments order plus costs. Periodical maintenance orders may similarly be enforced, under section 8 of the Enforcement of Court Orders Act 1940, supplemented by the Family Law (Maintenance of Spouses and Children) Act 1976, and the Judicial Separation and Family Law Reform Act 1989, which enables an elaborate machinery of attachment of earnings to apply.

The Distinction between Civil and Criminal Contempt

We must now consider the troublesome question of the distinction between civil and criminal contempt. Our courts have sought to articulate this distinction more than once. Thus, in Keegan v de Burca178 O Dalaigh, CJ stated in the Supreme Court:

“The distinction between civil and criminal contempt is not new law. Criminal contempt consists in behaviour calculated to prejudice the due course of justice, such as contempt in facie curiae, words written or


178

[1973] IR 223, at 222.



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spoken or acts calculated to prejudice the due course of justice or disobedience to a writ of habeas corpus by the person to whom it is directed – to give but some examples of this class of contempt. Civil contempt usually arises where there is a disobedience to an order of the court by a party to the proceedings and in which the court has generally no interest to interfere unless moved by the party for whose benefit the order was made. Criminal contempt is a common-law misdemeanour and, as such, is punishable by both imprisonment and fine at discretion, that is to say, without statutory limit. Its object is punitive.179 Civil contempt, on the other hand, is not punitive in its object but coercive in its purpose of compelling the party committed to comply with the order of the court, and the period of committal would be until such time as the order is complied with or until it is waived by the party for whose benefit the order was made.”

And in The State (Commins) v McRann,180 Finlay P said:

“The major distinction which has been established over a long period and by a long series of authority between criminal and civil contempt of court appears to be that the wrong of criminal contempt is the complement of the right of the court to protect its own dignity, independence and procedures and that, accordingly, in such cases, where a court imposes sentences of imprisonment its intention is primarily punitive. Furthermore, in such cases of criminal contempt the court moves of its own volition, or may do so at any time.

In civil contempt, on the other hand, a court only moves at the instance of the party whose rights are being infringed and who has, in the first instance, obtained from the court the order which he seeks to have enforced. It is clear that in such cases the purpose of the imposition of imprisonment is primarily coercive; for that reason it must of necessity be in the form of an indefinite imprisonment which may be terminated either when the court, upon application by the person imprisoned, is satisfied that he is prepared to abide by its order and that the coercion has been effective or when the party seeking to enforce the order shall for any reason waive his rights and agree, or consent, to the release of the imprisoned party.”

Thus, we see certain factors emerging clearly. The primary purpose of civil contempt proceedings is coercive, whereas for criminal contempt the primary purpose is punitive; moreover in civil contempt proceedings the court moves only at the instance of the party whose rights have been infringed whereas no similar inhibition applies in respect of criminal contempt.

The problem with this analysis is that there are some cases classically


179

Citing In re Haughey, [1971] IR 217.

180

[1977] IR 78, at 89 (High Ct, Finlay P, 1976).



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characterised as civil contempt where the court's intervention can not credibly be perceived as serving a coercive function. For example, a person ordered not to destroy a document may do so nonetheless; coercion thereafter will be utterly ineffective, since the document can never be restored, but punishment may seem desirable. Conversely there are some instances of criminal contempt where the appropriate – or, at all events, an appropriate – judicial response might appear to be of coercive rather than a punitive nature. For example, the refusal by a witness to answer a relevant question where no privilege arises is characterised as a criminal contempt in facie curiae, for which only a sentence of determinate duration is permissible.181 It is easy to sympathise with McLoughlin J's dissent on this matter in Keegan v de Burca.182

The courts have struggled with articulating clear principles in this area. In Re Freston,183 in 1883, a solicitor had been ordered by a court to deliver up certain deeds and documents and to pay £10 with certain costs. He delivered the deeds and documents, but no money. An order of attachment for contempt was made against him, the attachment not to issue if he paid the money. He then paid the £10 but not the costs; and was arrested under the writ of attachment while on his way to a court on professional business. He applied for a discharge on the basis of privilege from arrest when going to or coming from court.184 This argument depended on his contempt being civil rather than criminal.

The Queen's Bench Division held that it was criminal in nature. Fry LJ sought to draw an important distinction as follows:

“It is plain that, where attachment is mere process, privilege exists: where it is punitive or disciplinary, the privilege does not exist .... The attachment was something more than process; it was punitive or disciplinary, for the Court was proceeding against its own officer. Further, if the attachment was mere process, Freston could obtain his discharge, ex debito justitiae, on showing that he had performed what was required by the Master's order; I do not think he could have done so in the present case: the Court would have had a jurisdiction to exercise its discretion, and to punish him further. There was therefore no privilege.”185

This distinction found favour in the Irish Court of Appeal's decision in AG v Kissane.186 Porter MR observed that it was:

“founded upon common sense; a great deal of the business in the


181

Keegan v de Burca [1973] IR 223 (Sup Ct, 1972) (majority view: O Dalaigh CJ and Walsh J, McLoughlin J dissenting).

182

Supra, at 236.

183

11 QBD 545 (1883).

184

Cf Borrie & Lowe, 365.

185

11 QBD, at 557.

186

32 LR Ir 220 (CA, 1893).



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Chancery Division has no other ultimate sanction than the process of attachment. For instance, in the case of a defaulting trustee the judgment of the Court ordering the lodgment of money can often only be carried out in this way. In such a case it is a civil not a criminal remedy; for the adjudication of contempt on which it is founded concerns not the general administration of justice, but the rights of the parties who are before the Court: it is not 'punitive and disciplinary' so much as executive.”187

In Kissane's case the Court held that the refusal by an RIC County Inspector to provide proper protection for a sheriff in the execution of a writ of fieri facias in proceedings brought by the Attorney General against an individual for charges due under the Drainage Acts constituted a criminal rather than civil contempt.

Porter MR analysed the issue as follows:

“The question still remains in each particular case whether an order for attachment is a civil or criminal matter. In the present case the notice of motion was entitled in the action, and the order was also so entitled: that is, they were entitled in a civil matter; but the question is, has this order for attachment been made in a civil or in a criminal matter? First, it is to be observed, the application is not brought forward by any party to the action of the Attorney General v Kissane; nor is it an application against any party to that action: it is made by the sheriff against an officer of the Constabulary. Possibly neither plaintiff nor defendant has any concern in its result. For all that I at present know, the plaintiff's demand may have been paid. It seems plain, therefore, that in its essence this is not a machinery for enforcing execution of a writ of the Queen's Bench Division at all. Suppose that there was sent forward by the sheriff a reasonable requisition for assistance in executing a writ against a judgment debtor, and that the assistance was refused by a person lawfully bound to render it, without lawful justification or excuse, would it be any answer to say that the debt was notwithstanding afterwards paid, or that afterwards the sheriff had been able to levy without the assistance? Would that be any answer to an application such as was made in the present case to the Queen's Bench Division, founded not alone on the jurisdiction possessed by the Court to enforce its own orders, but also on the duty of the subject to aid the sheriff on lawful occasion? In my opinion it would not. Or would it be any answer, after an unreasonable refusal, to aid the sheriff, to show that the person requested did after refusal, and might eventually, give assistance on another occasion? In my opinion this circumstance would afford no answer except in mitigation of punishment. I therefore think that in its essence and substance this application and the order made thereon cannot be treated as being a proceeding between the parties to


187

Id, at 261, See also id, at 274 (per Palles CB) and at 276 (per Fitzgibbon LJ).



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the action, or as being only a step taken to enforce any right for which the action was brought.”188

The question immediately arising from this analysis is whether proceedings initiated by one of the parties to litigation impugning the County Inspector's inactivity should be characterised as civil or criminal. Nothing said by the Master of the Rolls would foreclose the possibility of their being characterised as criminal, though of course the notion of such a party's being motivated by zeal for the public rather than his own welfare189 is quite unconvincing. Perhaps it can be said that in such circumstances the damage to the public welfare is no less real because it happens to be protected by a litigation with an interest of his own.

Palles LCB's analysis leans towards a metaphysical rather than a realist portrayal of the matter at stake:

“[T]he jurisdiction of the Queen's Bench Division, which was appealed to by the motion of the sheriff, was the jurisdiction of the Court to vindicate its own authority, and ... whether that vindication is to be accomplished by punishing libels on the Court itself, or by punishing observations upon the subject matter to be tried, or by punishing those who obstruct or interfere with, or contrary to duty refuse to order, the due execution of the process of the Court (without the ability to execute which a Court of Justice cannot exist), the application is in substance the same. All such acts are obstructions to the course of justice, and all of them are dealt with by the Court in the exercise of a criminal, though summary, jurisdiction.

For these reasons, I am of opinion that, although the cause of The Attorney-General v Kissane is a civil one, the notice of motion by the sheriff was not a proceeding in that cause, but was the initiation of a criminal matter, and that the order appealed from, although entitled in the cause, was, in law, made not in the cause, but in that criminal matter.”190

In Smith v Molloy,191 Palles LCB clarified his approach, making it plain that, in at least some circumstances, a person could be guilty of criminal contempt, at the suit of the other party in litigation, for failing to obey a court order. The plaintiff had issued a writ of ejectment against the defendant for the recovery of certain lands. Judgment was in favour of the plaintiff and a writ of possession was lodged with the sheriff who handed over possession to the plaintiff. Subsequently the defendant forcibly regained possession, and he was


188

Id, at 263–264. See also id, at 277 (per Fitzgibbon LJ).

189

Cf the defamation case of Coleman v Keanes Ltd, [1946] Ir Jur Rep 5, criticised by McDonald, 149–150.

190

Id, at 275–276.

191

39 ILTR 221 (KB Div; Palles LCB, Johnson and Boyd JJ, 1905).



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attached for contempt. The question later arose as to the nature of the defendant's contempt.

Palles LCB, delivering the judgment of the Court, said:

“Now, it may be that there are some attachments still that are issued out of Equity Divisions for the purpose of enforcing injunctions that may possibly be deemed to be within this class, as being nothing more than ancillary to injunctions, and as injunctions are mere process they also are mere process. But that case does not touch the present case, for such attachments are merely ancillary to civil proceedings between the parties. Passing over the judgments of the English Court of Appeal in several reported cases,192 which are contradictory, and by which I therefore do not feel myself bound, I adopt the rule laid down by Fitzgibbon LJ in Attorney-General v Kissane,193 in which, referring to the words of Fry LJ, in Re Freston,194 he says: 'I adopt his distinction between the cases where attachment is mere process and where it is punitive and disciplinary; and, in my opinion, no clearer case could exist than the present case, in which the attachment is punitive and disciplinary. I view this case as one in which the Court itself was concerned, as a case between the Court and the defendant. The process of the Court has been set at naught, and what it has ordered to be done has been undone. If an attachment directed against a member of the public who has set the Court at naught in a criminal matter, then a fortiori such is the case when it is directed against the very defendant who not only refuses to aid the Court, but renders of no effect the judgment of the Court which has been executed. I now refer to the judgment of Wilmot CJ, in Rex v Almon,195 from which it clearly appears that this proceeding of attachment for contempt is as much a criminal matter as a case of indictment on information. He there draws the distinction between the various jurisdictions in these matters in the Common Law Courts, pointing out, first, the cases where there is a jury and a finding by that jury, and, secondly, the cases where there is no jury, but where the Court itself has been outraged; and the adjudication by the Court of a person in contempt is treated by him as being the same as a verdict by a jury in a criminal proceeding. Therefore I hold, on the nature of the old criminal jurisdiction of this Court to enforce obedience to its own orders and to punish as criminal all unlawful interference with these writs, that this man is in custody in a matter of criminal nature under an undoubtedly good warrant ...”196


192

These included O'Shea v O'Shea, 15 PD 59, Ex pane Smith, 3 H&N 227, Queen v Barnado, 23 QBD 308, Housin v Barrow, 6 TR 122, Hooper v Lane, 6 H of L Cas 443, Hall v Roche, 8 TR 187, Barren v Price, 9 Bingham 566, Semayne's Case, Cro Eliz 908, Rex v Fowler, 1 Ld Raym 586.

193

32 LR Ir 220 (CA, 1893).

194

11 QBD 557.

195

Wilmot's Judg and Op, 234.

196

39 ILTR, at 223.



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CHAPTER 7: JURISDICTION

It is clear that the High Court has full jurisdiction to deal with contempt, whether criminal or civil,1 and whether that contempt is contempt of the High Court, Circuit Court or District Court. In AG v O'Ryan and Boyd2 the first defendant unsuccessfully contended that the High Court had no jurisdiction to act in respect of a contempt of the Circuit Court. He contended that the principle underlying R v Davies3 was that the King's Bench Division “was the custos morum of the Kingdom, whose peculiar function it was to exercise superintendence over the inferior courts. The other Divisions of the High Court had no such function”.4 Moreover, under section 48 of the Courts of Justice Act 1924, the Circuit Court had general jurisdiction to be exercised locally in civil cases both at law and in equity subject only to the limitations imposed by that section and to the express exclusions contained in section 56. Subject to these limitations it had, within its locality, all the jurisdiction of the High Court. He referred to the Supreme Court decision of Sligo Corporation v Gilbride,5 where Kennedy CJ had rejected a dictum of Johnston J in Argue and Walker v Henry6 to the effect that the equity jurisdiction of the Circuit Court provided by section 48 of the 1924 Act was that of “the old equity jurisdiction of the County Court ... subject to the modifications set out in that section”. Johnston J's dictum, the Chief Justice had noted, was in conflict with the views expressed by the Supreme Court in at least one earlier


1

Cf Article 34.3.1° of the Constitution.

2

[1946] IR 70 (High Ct, Maguire P, Gavan Duffy and Haugh JJ, 1945).

3

[1906] 1 KB 32.

4

[1946] IR, at 78.

5

[1929] IR 351, at 361 (Sup Ct).

6

[1926] IR 99, at 199.



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case, Connor v O'Brien,7 and might be taken as overruled by the later dicta of the Supreme Court in Hosie v Lawless.8 Kennedy CJ had gone on to say:

“The opinion has often been expressed in this Court, and no doubt has ever been indicated on the matter, that the Courts of Justice Act, 1924, has set up an entirely new Court in the Circuit Court, and that that Court is not the old County Court continued with extended jurisdiction. The Act declares (section 48) that the Circuit Court shall have the jurisdiction stated in that section in civil cases, and supplements that provision by the transfer (by section 51) of the jurisdiction formerly vested in, or capable of being exercised by, Recorders, County Court Judges, and Chairmen and Courts of Quarter Sessions. In my opinion the Act, by section 48, devolves on the Circuit Court general jurisdiction to be exercised locally in civil cases both at law and in equity, subject only to the limits imposed by that section and to the express exclusions contained in section 56. The last-mentioned section affords remarkable confirmation of this view of the Act. If the contention put forward by the plaintiff Corporation here were correct, it would have been quite unnecessary to insert this provision excluding subject-matters which were never within the County Court jurisdiction,


7

[1925] 2 IR 24 (Sup Ct, 1924), where Kennedy CJ had stated (at 28):

“The Courts of Justice Act, 1924, has given us in a single statute a complete scheme of Courts, comprising four separate but co-related units, which are to exercise the judicial power of, and administer justice int the Saorstat. By virtue of the Constitution, the High Court of Justice is invested with universal original jurisdiction, but power was given to the Legislature to set up Courts of local and limited jurisdiction (excepting, however, certain constitutional questions, the original jurisdiction in which belongs exclusively to the High Court). The Legislature, acting under this authority, set up the Circuit Court of Justice and the District Court of Justice to exercise locally throughout the country carefully defined jurisdictions. The policy of the Act is unmistakable. It is that the great bulk of the ordinary litigation not involving very heavy financial consequences and of the criminal business of the country shall be dealt with and disposed of in the local venue. This is something quite different from the position of the old County Courts. In the case of the Circuit Court it is made clear that the parties are not to be prejudiced either as to mode of trial, whether with or without juries, or as to the resulting relief, whether principal or ancillary, by reason of the forum being the Circuit Court rather than the High Court. See particularly, for example, sections 47, 57 to 60 inclusive, and 94 to 96 inclusive. The trial of an action in the Circuit Court is to differ from the trial of a similar action in the High Court only in venue and in the outside limit of jurisdiction in relation to the particular class of cause of action.”

8

[1927] IR 464 (Sup Ct), where Kennedy CJ had stated (at 472):

“I think the Judge below approached this case without realising that by the Courts of Justice Act entirely new Courts were established, as I pointed out in Connor v O'Brien. He approached it from the point of view of a continuance of the former County courts with an extended jurisdiction, which is to misread both the Courts of Justice Act and the Constitution of the Saorstat, and to confuse the interpretation of this Act, which established a complete system of Courts.”



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and could not therefore be within any mere quantitative extension of that jurisdiction.”9

The Chief Justice had gone on to express10 the opinion that:

“the new Courts of local and limited jurisdiction established by the Courts of Justice Act under the powers conferred by Article 64 of the Constitution are not subject to the restrictions imposed by the Civil Bill Act or the County Officers and Courts Act upon the County Courts whose jurisdiction has been transferred to them. The only limitations upon the jurisdiction of the Circuit Court are those expressed or implied in the provisions of the Courts of Justice Act, and, subject to those limitations, the Circuit Court has within its locality all the jurisdiction of the High Court. In particular, section 57 confers on the Circuit Judges 'powers of attachment, injunction, garnishee, interpleader, and all powers' (not, be it observed, 'all other powers') 'ancillary to any jurisdiction vested in, transferred to, or exercisable by them'. The former County Courts, whose jurisdiction has been transferred to the Circuit Courts by section 51, already possessed power to grant injunctions, to make orders for attachment and for interpleader – 40 and 41 Vict c 56, sect 33(1), section 34, sect 44; 14 & 15 Vict c 57, sect 150 – so far as the same were ancillary only to the jurisdiction possessed by them, and therefore the earlier portion of section 57 of the Courts of Justice Act was otiose unless it was intended to confer upon Circuit Judges some jurisdiction in these matters which was new or additional to that transferred by section 51, as possessed by the former Recorders, County Court of Judges, and Chairmen and Courts of Quarter Sessions.”

Counsel for the plaintiff had contended that the High Court had full jurisdiction under Article 34.3.1° to deal with a contempt of the Circuit Court. The Circuit Court was a Court of inferior jurisdiction subject to the corrective and protective jurisdiction of the High Court. He invoked in support the Chief Justice's statement in The State (Hunt) v Judge of Midland Circuit11 that:

“[a] superintending and corrective jurisdiction over Courts of inferior jurisdiction and the Judges thereof is part of the sovereign function of the judicial power conferred by the Constitution upon the Courts of Justice set up by it. It is also part of the jurisdiction transferred by section 17 of the Courts of Justice Act, 1924, from the High Court of the former Supreme Court of Judicature, to which it had been transferred by sections 21 and 36 of the Judicature Act (Ireland), 1877, from the former Court of King's Bench and Court of Chancery, deriving originally, under the theory of the English system, from the authority of the King in his own Court of King's Bench.”


9

[1929] IR at 361.

10

Id, at 367–368.

11

[1934] IR 196, at 210 (Sup Ct, 1933).



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Counsel for the plaintiff had gone on to argue that the power of attachment conferred on the Circuit Court by section 57 of the 1924 Act was only ancillary to the jurisdiction conferred or transferred and could be exercised by the Circuit Court judge only when he had seisin of the case.

The Court dealt with these arguments summarily. Maguire P merely declared that the members of the Court were satisfied that they had “jurisdiction to deal with contempt of court where the Circuit Court is scandalised”.12 Gavan Duffy J disposed of the issue by invoking Article 34.3.1° and expressing the view that the High Court “has full jurisdiction if willing in its discretion to exercise it”,13 under this provision.

Two years later, in AG v Connoly,14 Gavan Duffy P (as he had become) referred with approval to O'Ryan and Boyd.15 In Connolly the defendant argued that the High Court has no power to exercise jurisdiction in respect of an alleged contempt of scandalising the Special Criminal Court. Gavan Duffy P, rejecting this contention, said:

“One of the proper functions of the High Court is the important and necessary power of giving effective protection to inferior courts against constructive contempt. I have no doubt that the Court of King's Bench before the Treaty must, on the English decisions, have held that it had that power, had the jurisdiction been challenged, and the High Court established in 1924 assumed in Attorney-General v Cooke,16 and in In re O'Neill,17 that it had the same power. And this Court, overruling all argument to the contrary, decided that it had that power in Attorney-General v O'Ryan and Boyd.18 The Constitution (Art 34 s1.1°) – reproducing the plan of Art 64 of the former Constitution – invests this Court with full original jurisdiction in, and power to determine all matters and questions, civil or criminal; that is the impressive and comprehensive jurisdiction which it is our duty to maintain; see here again Art 58 of the Constitution on the preservation of the existing jurisdiction..”19

Thus, whether or not the High Court is claiming to protect an inferior court, it has a soundly-based constitutional entitlement to exercise jurisdiction in respect of contempts in any court. Where does that leave the Circuit Court and District Court? Does the fact that the High Court has jurisdiction in respect of contempts of the Circuit and District Court impliedly remove any jurisdiction that they might have independently? It seems that it does not.


12

[1946] IR, at 82.

13

Id, at 86.

14

[1947] IR 213 (High Ct, Gavan Duffy P, Maguire and Davitt JJ).

15

Supra.

16

58 ILTR 157.

17

[1932] IR 548.

18

Supra.

19

[1947] IR, at 222–223.



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Thus the question as to the respective contempt jurisdictions of these courts must be separately considered.

At common law the position was not entirely clear. Miller states that “jurisdiction to punish for constructive or indirect contempts committed out of court is vested solely in the superior as opposed to inferior courts”.20 As regards in facie contempts, however, the summary contempt jurisdiction appears to be available for all courts of record whether superior or inferior.21 Both the Circuit Court and District Court are courts of record; they appear clearly to have summary contempt powers in respect of in facie contempts. As to constructive or indirect contempts, it may be argued, albeit tentatively, on the basis of O'Ryan and Boyd22 and the decisions cited by counsel therein, that (i) the Circuit Court is a superior court of record, and (ii) whether or not it may be so characterised, it has since its establishment sufficient statutory authority to exercise a full contempt jurisdiction. If this argument is not acceptable, a second line thought may be pursued. Borrie & Lowe's analysis extends the contempt power more widely than Miller's. They state:

“Whether all courts of record are vested with an inherent contempt jurisdiction has still to be directly tested. Although the general presumption of the caselaw is that they are, it might be possible to argue either that the jurisdiction is confined to the 'common law courts' or that, precedent apart, the inherent contempt jurisdiction vests only in superior courts. In other words doubts may be raised as to whether the simple statutory designation that a body is a court of record automatically means that a contempt jurisdiction is thereby vested. It is submitted that in absence of any other explanation statutory courts of record should be regarded as having an inherent contempt jurisdiction unless the statute expressly declares to the contrary.”23

In this context it may be noted that, in AG v O'Kelly,24 Sullivan P said:

“The High Court contemplated in ... Article [64 of the 1922 Constitution] would obviously be a Court of Record25; and, as


20

Miller, 62. In AG v O'Kelly, [1928] 308, at 320 (Sup Ct), Meredith J stated that the power to commit for contempt (without a jury) “is the birthright of every Superior Court of Record”. Hanna J took a broader view. He considered it “necessary that every Court, no matter how established, should have the power to commit for contempt”. Sullivan P's remarks quoted in the text, infra, are in accord with Hanna J's view. In The State (DPP v Walsh, [1981] IR 412, at 426 (Sup Ct), O'Higgins CJ expressed the view that the Courts of First Instance and the Supreme Court have a constitutional mandate to try summarily all forms of criminal contempt.

21

Miller, 57.

22

Supra.

23

Borrie & Lowe, 315 (footnote references omitted).

24

[1928] IR 308, at 318 (High Ct, Sullivan P, Meredith and Hanna JJ) (emphasis added).

25

Citing McDermott v British Guiana Justices, LR 2 PC 341 (1868).



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jurisdiction to attack for contempt is inherent in every Court of Record,26 such jurisdiction would vest in the High Court when established unless clearly and expressly negatived.”

If all courts of record have a contempt jurisdiction, even in respect of constructive or indirect contempts, then the District Court, being a Court of Record, would share this jurisdiction, rather than being confined in in facie contempts.

Some further support for the broad view favoured by Borrie & Lowe may perhaps be gleaned from In re M'Aleece27 in 1873, where it was held that “the Court of Assize sitting under a Commission of Oyer and Terminer is a Superior Court; and ... a commitment by it for contempt may be general and the particular circumstances need not be set out in the warrant”.28 Counsel in support of this proposition had stated it to be:

“settled that the Superior Courts can commit for contempt upon a general warrant, without setting forth the nature of the contempt; but that Inferior Courts must state facts showing that there was a contempt.”29

The case appears to proceed therefore on the basis that inferior courts did indeed have jurisdiction over contempt cases. Since, however, it did not have to address the scope of that jurisdiction (the Court with whose warrant it had to deal being held to be a superior court) it would seem mistaken to read a great deal on the issue into this case.

The Rules of the Circuit Court 1950 contain wide-ranging provisions as to contempt of court, primarily in the area of civil contempt. Order 33, rule 4 provides that a judgment requiring any person to do any act other than the payment of moneys, or to abstain from doing anything may be enforced by an execution order by way of attachment or committal.30 The rules relating to attachment and committal are set out in Order 36. Order 21, rule 6 deals with failure to comply with a witness summons, without lawful excuse: the Court, if satisfied that a person has been summoned to attend or give evidence or produce documents, and that his reasonable expenses have been tendered him, may attach him for contempt, or may impose a fine not


26

Citing Wilmot CJ's opinion in R v Almon, Wilm 243 (1765), Blackburn J's judgment in Skipworth's Case, LR 9 QB 230 (1873) and Quain J's judgment in R v Lefroy, LR 8 QB 134, at 139 (1873).

27

IR 7 CL 146 (QB (Cr Side, 1873)).

28

Id, at 151 (per Whiteside CJ).

29

Id, at 147.

30

Any judgment or order against a corporation which is “wilfully disobeyed” may, by leave of the Judge, be enforced by an execution order by way of attachment or committal against the direction or other officers of the corporation, or any of them: Order 33, rule 5. As to supplementary powers of the Court in relation to the enforcement of mandatory orders and injunctions, see Order 33, rule 26.



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exceeding £10, with one month's imprisonment in default of payment.

An express power to commit for in facie contempt is conferred on the District Court by section 9 of the Petty Sessions (Ireland) Act 1851:

“And if any person shall wilfully insult any Justice or Justices so sitting in any such Court or place, or shall commit any other contempt of any such Court, it shall be lawful for such Justice or Justices by any verbal order either to direct such person to be removed from such Court or place, or to be taken into custody, at any time before the rising of such Court by warrant to commit such person to gaol for any period not exceeding seven days, or to fine such person in any sum not exceeding two pounds”.

In Ex parte Tanner, MP,31 it was held that this statutory power had not diminished the power of the magistrates to hold to good behaviour in the case of contemptuous words. Palles CB said:

“As to that argument I shall only state my view of the ordinary rule of construction of statutes. If you have a jurisdiction or privilege attached to a court, a corporation, or individual, you cannot, as a general rule, repeal or take away that by an affirmative statute which gives it an additional right, because the two things can exist together. You are bound to show either an express repeal, or a repeal by implication, and a repeal by implication, speaking generally, arises only from inconsistency of legislation. There is nothing inconsistent between an express statutable power to punish for contempt, by sending to prison for seven days, and a power to prevent a repetition of that offence, by holding to good behaviour. My opinion is that both powers exist”.32

It is useful to record what Woods has to say on the power of the District Court in relation to civil contempt:

“The question of whether or not the District Court possesses an inherent jurisdiction to compel compliance with its orders in civil cases by way of attachment and committal of an unwilling party in contempt of its orders (as in the case of orders made by the High and Circuit Courts) remains unresolved. The negative view may be stated thus: the District Court, unlike the other courts, does not possess an inherent jurisdiction to compel compliance with its orders in civil cases in the absence of a statutory provision setting out its powers in case of such non-compliance. The only power to commit for contempt vested in the District Court is set out in section 9 of the Petty Sessions (Ir) Act, 1851, and deals with contempt committed in the face of the Court.


31

Judgments of the Superior Courts (Ireland) 343 (Ex Div, 1889).

32

Id, at 346.



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The positive view is that if a Court is empowered to make an order which is intended to be binding on the parties to the action it must have power to compel compliance with the terms of any order which it makes, otherwise the administration of justice will be brought into disrepute. In the absence of some reasonable alternative course to secure compliance with the terms of the order a committal order may have to be made to vindicate the authority of the Court. Furthermore, whatever justification there may have been for the view that the District Court must rely on statute for the exercise of its every power, the proposition in now unsustainable since the District Court was constituted a court of record (see s.13 of the Courts Act, 1971) and, in this regard, has the same status as the Circuit Court (see section 21 of the Courts (Suppl Prov) Act, 1961). Accordingly, the argument goes, the District Court does possess an inherent jurisdiction to commit for contempt of its civil orders which are made within jurisdiction and intended to be binding on the parties, and in respect of which no other reasonable means of enforcement is available and this inherent jurisdiction is not inhibited by the absence of rules of procedure for attachment and committal”.33

As regards appeals, it seems that there is a right of appeal in civil and criminal contempt from the District Court to the Circuit Court, from the Circuit Court to the High Court and from the High Court to the Supreme Court, respectively. It appears that the Court of Criminal Appeal has no function in the matter of criminal contempt save in cases where a prosecution has been brought by indictment or in appeals from the Special Criminal Court.34 In the light of The State (DPP) v Walsh,35 it may at least be queried whether the bifurcated process envisaged as constitutionally mandatory involves sufficient jury participation to render the case eligible for appeal to the Court of Criminal Appeal rather than to the Supreme Court directly.

Finally, as regards initiation of proceedings, this may be done by the Director of Public Prosecutions where criminal contempt is in issue.36 It is also possible for a party affected, or likely to be affected, by an alleged criminal contempt, to initiate proceedings. This occurs frequently in cases where the sub judice rule has allegedly been broken. It will be recalled that in In re MacArthur,37 where Mr MacArthur initiated proceedings for alleged breaches of the sub judice rule, Costello J adjourned the application with liberty to re-enter until the Director of Public Prosecutions might indicate what steps he proposed to take in the light of an investigation which he had caused to be


33

J Woods, District Court Practitioner – Remedies, 52 (1987). See also Clune v District Justice Clifford, [1981] ILRM 17 (High Ct, Gannon J).

34

Cf the Courts (Supplemental Provisions) Act 1961, section 12, see also In re O'Kelly, 108 ILTR 97 (CCA, 1973). As to the former limitation on appeals, see AG v Kissane, 32 LR Ir 220 (CA, 1893).

35

Supra.

36

See J Casey, The Office of the Attorney General in Ireland, 119–120 (1980).

37

[1983] ILRM 355 (High Ct, Costello J, 1982).



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carried out into media coverage relating to Mr MacArthur. Costello J was of the view that Mr MacArthur had made out a prima facie case that the publication of a photograph of him constituted a contempt; but Costello J felt that he could not and should not then make a conditional order of attachment. He said:

“Heretofore, in this country and in England applications in relation to criminal contempt in connection with pending criminal trials have been made by one or other of the law officers and presently the matter is being considered by the Director of Public Prosecutions. I think it is undesirable when the Director of Public Prosecutions is investigating possible contempts of court for an ex parte application to be brought by an accused himself pending the outcome of the Director's investigations.”38

The Court has power, on its own motion, to originate proceedings for criminal contempt. In In re the Youghal Election Petition,39 in 1869 a barrister was reported in a newspaper as having made a speech imputing gross judicial misconduct to a judge before whom an election petition was tried, as well as to the Court of Common Pleas, on a case stated by that judge. The publication “having casually come to the knowledge of the members of the Court”, they considered the language a contempt, and directed the barrister to attend to answer for his alleged contempt.

One objection made on behalf of the barrister was that the Court could not of its own motion, in the absence of a complainant, originate proceedings, or take any action in respect of any contempt, however gross, unless committed in the presence of the Court. On behalf of the Court, Monahan CJ said:

“We cannot accept this doctrine; we are of opinion that, if a contempt of Court has been committed by any one, whether in the presence of the Court or not, the Court has jurisdiction to originate proceedings to punish such contempt.”40


38

Id, at 358.

39

IR 3 CL 537 (CP, 1869).

40

Id, at 550.



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CHAPTER 8: THE RESPECTIVE ROLES OF JUDGE AND JURY

In this Chapter we examine the present law relating to the respective roles of judge and jury in contempt hearings. As will become immediately plain, the subject is a difficult one, raising complex constitutional issues, some of which have yet to be fully addressed by the courts. The leading decision is that of the Supreme Court in The State (DPP) v Walsh.1 The best way of considering this case and its further implications is to note first some important earlier decisions on the subject.

Precursors to Walsh

The question of the right to jury trial in proceedings for contempt arose under the 1922 Constitution. Article 72 provided that:

“[n]o person shall be tried on any criminal charge without a jury save in the case of charges in respect of minor offences triable by law before a Court of Summary Jurisdiction and in the case of charges for offences against military law triable by Court Martial or other Military Tribunal.”

In AG v O'Kelly,2 the High Court rejected the contention that, in a case of alleged criminal contempt, trial by jury was automatically required. Sullivan P and Hanna J conceded that a literal construction of Article 72 supported this contention, but took the view that it was proper to interpret that Article in the light of the other provisions of the Constitution. Article 64 contemplated the establishment of the High Court as a court of record, to which the power of attachment for contempt would inhere “unless clearly and


1

[1981] IR 412 (Sup Ct).

2

[1928] IR 308 (High Ct).



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expressly negatived”.3 Moreover, Article 73, which provided for the continuation, with full force and effect, of the laws in force before 1922, subject to their being consistent with the Constitution, carried forward the summary judicial power of attachment for contempt, since Article 72 was confined in its operation “to trials of criminal charges by ordinary criminal process”.4

Counsel for Mr O'Kelly had argued that the historic power to attach for contempt no longer applied, for two reasons: first, that it was a prerogative power derived from the British Crown on the presumed presence in Court of the King, which was inconsistent with the Preamble and Article 2 of the Constitution, and, secondly, that it was inconsistent with the Constitution that the courts established by it “should have any tradition that they commenced to operate without any inherent or implied powers by long usage, or derived from the well of the common law”.5

Only Hanna J dealt with these arguments. As to the first, he thought that “the answer ... is that it does not very much matter in the exercise of the power whence it is derived if the court in fact has it”.6 This succinct disposition of the issue must now be seen in the light of later judicial decisions on the extent to which the prerogative power of the British Crown survived, not merely the enactment of the Constitution of Saorstat Eireann, but also that of the Constitution of Ireland. If indeed the inherent jurisdiction of the High Court to attach for contempt was exclusively part of the royal prerogative, it might be that it did not so survive.7

Hanna J disposed of Mr O'Kelly's second argument by referring to section 17 of the Courts of Justice Act 1924, which described the High Court as a Superior Court of Record. He went on to say that:

“[i]t is necessary that every Court, no matter how established, should have the power to commit for contempt. The Courts of Dail Eireann established under the decree of the first Dail (June 29th, 1920) claimed this power. In my view, whether we are the grantees of the powers of


3

Id, at 318 (per Sullivan, P). See also id, at 331 (per Hanna J).

4

Id, at 318 (per Sullivan, P). See also id, at 332 (per Hanna J):

“The proper subject-matter of ... Article [72] as to trial by jury is the body of substantive criminal law, similar to that which exists in every civilised country, of specified offences with specified punishments.”

5

Id, at 331 (per Hanna, J).

6

Id.

7

See Byrne v Ireland [1972] IR 241, Webb v Ireland [1988] IR 353. See further R Byrne and W Binchy, Annual Review of Irish Law 1987, 104–107 (1988), Kelly, Hidden Treasure on the Constitution (1988) Dublin ULJ 1; Constitutional Interpretation: Gwynn Morgan, Three Cautionary Tales, id, 24. (While the question lies largely outside the scope of this Consultation Paper, it should be noted that the unanimous view in Webb that the royal prerogative ceased to exist in any form in Irish law after the enactment of the Constitution of Saorstat Eireann is severely criticised by Professor Kelly).



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the former Courts in this country through the operation of the statutory provisions8 referred to, or are the descendants of the Dail courts, or were wholly created from the deliberations of our own Legislature, we are fully armed with this most essential power.”9

This argument is less than fully convincing. It is scarcely true that it “is necessary that every Court, no matter how established, should have the power to commit for contempt”. It may indeed be necessary for contempt of court to be punished but that does not mean either that that court should have the power to punish contempt or that the court which has the power of punishment should act as judge and jury.

A requirement that criminal proceedings for contempt be initiated by the Attorney General (or, today, the Director of Public Prosecutions) and brought before a jury in the way any other criminal prosecution is treated would not be self-evidently misconceived.

Hanna J's partial reliance on the experience of the Dail courts, should scarcely encourage the belief that he actually seriously entertained the view that the court structure prescribed by the 1922 Constitution was in any respect referable to the Dail Courts.

It is worth recording Meredith J's summary disposition of the constitutional issue:

“The jurisdiction is, in fact, as wide as the requirements of the case – the protection of the Court in the administration of justice. It need not be further or otherwise defined. Also, it is unnecessary to show that it was transferred to, or expressly conferred upon, this Court, for it is the birthright of every Superior Court of Record.”10

The notion of attachment for contempt, without jury trial, as being the “birthright” of such Courts is hard to defend. As has been mentioned, a requirement of jury trial is scarcely self-evidently misconceived. Moreover, Meredith J's failure even to address, and explain away, Article 72 makes his analysis unconvincing.

In Re Earle,11 the Supreme Court endorsed the High Court decision in O'Kelly with some professed enthusiasm, but on a basis that raises a difficulty. In Re Earle, the appellant had failed to comply with the terms of an order of habeas corpus and had been sentenced to a term of imprisonment for her contempt. Her assertion that she ought to have had a trial by jury met with no favour.


8

In fact Hanna, J had referred only to section 17 of the 1924 Act.

9

[1928] IR at 331.

10

Id, at 320.

11

[1938] IR 485 (Sup Ct, 1937).