Contempt Issues

Cases

deRossa v. Independent Newspapers Limited

 

, High Court, April 3, 1998, Kinlen J
Judgment delivered this 3rd day of April 1998 by Mr. Justice Kinlen

This Court is presently concerned with a specific but important point.
1. This application arises out of the alleged conduct of the Defendant in and about a libel action taken by the Plaintiff against the Defendant. The hearing of the libel action proceeded before the Honourable Mr. Justice McCracken and a jury on the 5th November, 1996 and lasted for nine days. The facts are set out by Ms. Eimear McKenna, the solicitor appearing for the Plaintiff in an affidavit sworn on the 29th November, 1996. In that Affidavit she states:-

“4. At an early time in the proceedings the Defendant accepted that Mr. de Rossa had not signed a letter dated the 15th day of September, 1986 and allegedly sent by the Workers Party to the Central Committee of the Communist Party of the Soviet Union. However, the attitude taken by Counsel for the Defendant on this point was not consistent. In particular, on the fourth day of the hearing there was a significant exchange in front of the jury concerning the questioning of the Plaintiff by Counsel for the Defendant…… At question 241, Counsel for the Defendant described the letter in question as ‘a letter that you wrote’. This was withdrawn and it was then described as a letter ‘which you are alleged to have written and signed’. After further objection Counsel for the Defendant described it as ‘a letter that bears your name whether it is your signature or not is a matter in issue’. Of course at this stage of the trial the Defendant had withdrawn any suggestion that the letter was signed by Mr. de Rossa and there was no allegation before the Court that Mr. de Rossa had signed the letter.”

“5. This manner of conduct of the case was clearly a matter of concern to the Plaintiff and his legal advisers. Notwithstanding this, it was made clear on a number of occasions by Counsel for the Plaintiff that given the Plaintiff’s unusual situation he could not afford discharge of the jury.”

“6. I shall turn now to the coverage of the libel action by the Defendant. As early as the third day of the hearing, Mr. Justice McCracken (as a result of an error in reporting by RTE) made the following statement:-

‘I am sure the Press will take great care that reporting is accurate because words are very important. Individual words are very important, but obviously mistakes can be made. So long as they are remedied immediately they probably do not do any harm.'”

“7. The Defendant published “The Sunday Independent” on Sunday, 10th November…….” (with several relevant articles).

“8. The following Friday these articles were brought to the attention of the Honourable Court, Mr. Justice McCracken by Counsel for the Plaintiff.

She then refers to the transcript and to the exchange between Counsel for the Plaintiff and the trial judge. She states that Mr. Aengus Fanning, Editor of the Sunday Independent, was in Court throughout and therefore presumably would have heard the comments of the Judge which were as follows:-

‘I do not think, by the way, this only applies to the Defendant’s newspaper. I think that it is a general comment which he applied to all newspapers. They certainly can report what happened in Court, but comments should be restricted at this stage because of the fact that the jury are going to read newspapers and that they must decide the case of what they hear in Court and not on the opinion of journalists, however, noteworthy that opinion might be or however, noteworthy, the journalist might be. It is very unfair on the jury to ask them to split their minds and concentrate on what was said when particularly the Sunday Papers should entertain comments which I know none of the journalists, I am quite sure, would make any comment on anything said outside the hearing of the jury but even comment as opposed to fact, I think should be avoided if at all possible. I think most journalists know the line.’

2. There were three articles in the Sunday Independent on the 10th November, 1996. Two of them were by Gene Kerrigan and the third one by Jonathan Philbin Bowman.”

“9. On Sunday, the 17th November, 1996, the Defendant published a number of articles concerning the action. In Ms. McKenna’s Affidavit, there is only one article in relation to this matter. It is an article by Gene Kerrigan published in the Sunday Independent of the 17th November, 1986. The matter came before Mr. Justice McCracken on the seventh day of the trial. Mr. Hardiman who is acting for the Plaintiff stated just after 4 p.m:-

‘There is something I would like to mention. Last weekend there was very considerable publicity in the Defendant’s newspaper. I am afraid we innocently thought last Sunday the case might be over by this weekend. That was a very serious misapprehension and publicity in regard to ‘drug dealing’, ‘prostitution’, ‘bank robbery’, ‘adultery’, ‘anything as long as is actionable’. ‘See you in Court but please hurry, there are only 43 days to Christmas’ and ‘I could use the cash’ – things of this sort – ‘how I long to be libelled, just a small one would do’ – plainly, a newspaper can say whatever they like once the case is over but this is a crude attempt to influence the jury – lest it should be unfortunately necessary to approach it in another way after the weekend.’

3. The Judge then stated what I have already recited.

“10. On the next day of the hearing of the libel action (Tuesday, 19th November) the jury was discharged on application by the Plaintiff. While I understand that the transcript to this application is available to this honourable Court I believe it is important to point out that Counsel for the Plaintiff indicated terms in which the matter could be dealt with without the discharge to the jury. These terms were not acceptable to the Defendant. Instead the Defendant instructed its Counsel to state that it ‘stood over’ Mr. Kerrigan’s article. The following day Mr. Kerrigan was introduced in evidence by the Defendant in circumstances where the learned trial judge had made it quite clear that he would place no obligation on Mr. Kerrigan to give evidence. Mr. Kerrigan was cross examined by Counsel for the Plaintiff and on the afternoon of Wednesday, the 20th November, the learned trial judge made his order as to costs in this matter.”

“11. On Sunday, 24th November, 1996 the Defendant published in the Sunday Independent three articles concerning the case before Mr. Justice McCracken………. I believe and am advised that the effects of the articles both in their specific terms and taken as a whole is to attempt to prejudice the Plaintiff’s position as a litigant against the Defendant. In particular, I believe and am advised with the effect and intention of these articles appears to be to give the impression that a dishonest and unjustified application was made to discharge the jury in circumstances where the impression was given that the Plaintiff’s case was not running well. There is a clear implication in one of the articles that the Plaintiff will not in fact resume his action against the Defendant and this could clearly have the effect of leading persons who may be jurors at that trial to believe the Plaintiff is only re-entering the matter reluctantly and with little hope of success. In addition it is contended that the decision of the Honourable Mr. Justice McCracken is incorrect. I also believe that there is an attempt to intimidate Counsel from acting on behalf of Mr. de Rossa by virtue of the factually inaccurate and deliberately abusive nature of the article written about one of the Plaintiff’s Counsel.”

4. The articles published on the 24th November, 1996 in the Sunday Independent were written respectively by Eamon Dunphy, Gene Kerrigan and Stephen Dodd.

5. The afforegoing Affidavit was the basis for a notice of motion dated the 29th November, 1996, making application to the Court on the 9th December, 1996.

6. On Friday, 29th November, 1996 Mr. Justice Carney ordered that an Order of Sequestration directed to Independent Newspapers Plc. do issue because of its contempt of this Court committed by publishing to the public in the issue of the Sunday Independent of the 24th day of November, 1996 the articles exhibited in Exhibit EMcK3 in the said Affidavit of Eimear McKenna. By said order Mr. Justice Carney proceeds:-

“Unless cause be shown to the contrary before the Court on Monday 9th December, 1996. This order be served on the Defendant by telephone and facsimile transmission this day and by service of this Order on the defendant not later than Monday the 2nd day of December.”

7. Costs were reserved.

8. On the 12th December, 1996 the matter came before Mr. Justice Barron and the appropriate proportion of the order reads as follows:-

“By consent, it is ordered that the Defendant, his servants or agents be restrained pending the trial of his action from publishing in the Irish Independent, the Sunday Independent or the Evening Herald newspapers any matter:
(i) calculated or liable to prejudice the jury in its hearing of and its deliberations on these proceedings;
(ii) constituting a wrongful interference with the Plaintiff’s constitutional rights in the conduct of his claim herein; and
(iii) discussing the probable evidence of any party or parties to these proceedings.
AND IT IS ORDERED that the outstanding claims on this motion do stand adjourned for the next list to fix dates (Chancery 1) the Court doth reserve the question of costs.”

9. The relevant notice of motion requests the three items which are on the Consent Order and also an order for the sequestration of such of the assets of the said Independent Newspapers Limited as may lie within the jurisdiction of this Honourable Court.

10. Finally, “such further or other reliefs as to this Honourable Court shall seem just and meet”, Lord Keeper Northington described this plea as the most powerful petition after the ‘Our Father’.

11. The matter finally came into the Court last week. The Defendant insists that since this was an allegation of a serious criminal contempt, it has the right to trial by jury. And that is the only issue before this Court. During the debate in this Court matters such as the right of independent journalists to defend themselves from what they saw was inaccurate presentation of their views by Counsel involved in the trial and that they had the right to defend their own names. However, these may be issues to be determined by the trial, I am only concerned with whether or not this matter comes before a jury. It was also argued that the appropriate person to process this matter would be the D.P.P., rather than Mr. de Rossa. However, that point seems adequately covered by the decision of The State (at the prosecution of Donal Commins) -v- Michael J. McRann 1977 I.R. p.78 which considered many of the decisions cited to this court. Finlay P. (as he then was) states at p.87:-

“Therefore, even prior to the enactment of the Constitution of Ireland in 1937, the position would appear to have been that on the provisions of the Constitution of 1922 (in which I can find no significant distinction from the comparable provisions of the Constitution of 1937) the High Court subsequently confirmed by the Supreme Court had decided that the jurisdiction of the Court of Record at least to proceed in a summary manner to deal with all forms of contempt of court had survived the enactments of the Constitution of 1922.

The matter came again before the High Court in the Attorney General -v- Connolly (1947) I.R. 213. That was an application by the Attorney General to commit for contempt the writer of an article alleged to have scandalised the Special Criminal Court. It was heard by the divisional court of the High Court consisting of Gavan Duffy P., and MacGuire and Davitt J.J. In a judgment of the Court which was delivered by Gavan Duffy P., the decision and the reasoning behind The Attorney General -v- O’Kelly (1928) I.R. 308 (as applicable to the Constitution of 1937) was clearly and unequivocally confirmed.

I find the decisions in these two cases and the views expressed by the Supreme Court In Re. Earle (1938) I.R. 485 extremely persuasive precedents; but I am further satisfied that there is an additional reason why it should be quite incorrect to interpret Article 38 of the Constitution of 1937 as depriving the Courts of the long established jurisdiction (which they undoubtedly had) to punish in a summary manner contempt of court whether the contempt was committed in the face of or outside the court and whether it is classified as criminal or as civil contempt.

The rights of a person to be tried on a criminal charge is provided by Article 38, S.5 of the Constitution of 1937 or guaranteed in terms which are, for all practicable purposes, identical to the terms of Article 30 of the Constitution. If the contention made on behalf of the prosecution were correct then, on the present state of the law it seems to me that, in the event of a court order having been disobeyed or in the event of a court suffering contempt in its face (for in this context I cannot distinguish between civil and criminal contempt nor between contempt in the face of and outside the court). Such courts must rely on the intervention of the Attorney General (or of the Director of Public Prosecutions) to present an indictment and try before a jury the person who is alleged to be guilty of such contempt. If that interpretation of the provisions of Article 30 and Article 38 of the Constitution is correct, then it seems to me that to construe Article 38 as depriving the Courts of their right to enforce their own orders is to deny the fundamental tripartite division of powers which underlies the entire Constitution. In my opinion, it is not to suppose that a situation could arise in which the court was obliged to restrain directly the commission of an act by the executive or by an agent of the executive, so as to preserve the right of an individual. If the contention made on behalf of the prosecutor were valid then by non activity on the parts of the servants of the executive (the Attorney General or the Director of Public Prosecutions) the executive could paralyse the capacity of the Courts to enforce their will. Such a consequence would not only be grave, but, in my view, would be a vital infringement of the independence of the courts as guaranteed by the fundamental principle of the tripartite division of power.

For these reasons I conclude that the inherent jurisdiction of the Courts to deal summarily with contempt, at least as enjoyed by Courts of Record, has not been in any way altered or diminished by the provisions of the Constitution of 1937 and that Article 38 of the Constitution must be interpreted as qualified by the provisions of Article 34. Therefore, I reject the first submission made on behalf of the prosecutor.”

12. However, it is agreed between the parties that the only issue presently before this Court is to determine whether or not the defendant has a right to a jury. The case for the defendant is contained in affidavit of Andrew Donagher who is an executive of the defendant company. He adds to the facts given by Ms. Eimear McKenna in her affidavit of the 29th November, 1996 as follows:-

“3. Since Ms. McKenna swore her affidavit, there have been a number of developments. This motion was brought in the immediate aftermath of the first trial of this action which took place for nine days between the 5th November, 1996 and the 19th November, 1996. This motion came before the Court on the 12th December, 1996 when the defendant gave undertakings in terms of paragraph b(i) to (iii) of a notice of motion pending the trial of the action. The defendant thereby undertook, pending the trial of the action, not to publish material of a certain nature in its newspapers. The judge adjourned the outstanding pleas on the motion to the next list to fix dates.”

[In fact all that was left in the motion paper was the question of sequestration.]
“4. The action came on for trial again on the 25th February, 1997 and was heard over a period of 14 days from then until the 20th March, 1997. The jury was unable to agree and they were discharged and a new trial ordered. The matter again came on to trial on the 15th July, 1997 and took place over 11 days between then and the 31st July, 1997. The jury found in favour of the plaintiff and assessed damages at £300,000. Judgment was entered for this amount………this order is the subject matter of appeal by the defendants which has not as yet been listed for hearing in the Supreme Court.”

“5. As appears from the order of the 12th December, 1996 the only substantive relief now sought by the plaintiff from the defendant is an order for the sequestration of such as the assets of the defendant as they lie within the jurisdiction of the court. I am advised and so believe that the nature of the relief sought predicates a finding of contempt of court on the part of the defendant, and indeed it is alleged in the notice of motion that the actions of the defendant in publishing a certain article did constitute a contempt of court.”

“6. As appears from Ms. McKenna’s affidavit the articles from which the Plaintiff relies were published in the Sunday Independent on 10th November, the 17th November and the 24th November, 1996. It is alleged that the effects of these articles is to attempt to prejudice the plaintiff’s position as a litigant against the defendant by making various suggestions contrary to the interests of the plaintiff. Complaint is also made that the articles contend that the decision of Mr. Justice McCracken to discharge the jury was incorrect. It is also alleged that there was an attempt to intimidate Counsel from acting on behalf of the plaintiff.”

“7. I am advised and so believe that the defendant has the right under the Constitution to have the charge of contempt tried before a judge and jury. I am advised that other than certain cases of contempt in the face of the court, there is no jurisdiction in this honourable court to conduct a summary trial of an alleged contempt. I am further advised and so believe that this is particularly so where the action in the course of which the alleged offence is committed has concluded. The defendant is very anxious indeed for a jury to hear and determine the facts of this matter and wishes to exercise its rights under the Constitution to have this matter tried by the jury. I am advised and so believe that the plaintiff may if he wishes send the papers in this matter to the Director of Public Prosecutions for him to consider whether or not to initiate a prosecution for alleged contempt of court.”

“8. I should however make it clear that the defendant will vigorously contest the suggestion that it has been guilty of contempt of court. Every factual proposition upon which Ms. McKenna relies is in dispute. The defendant does not accept that his attempt to prejudice the plaintiff’s position as a litigant or that there was an attempt to intimidate counsel from acting on behalf of the plaintiff.”

“9. Bearing in mind that the defendant intends fully to defend any contempt proceedings that might be brought against it in proper form in the future, it is necessarily limited in what it can say by way of response to the allegations contained in Ms. McKenna’s affidavit. However, I wish to point out that the defendant, inter alia, will rely upon the fact that the articles complained of were a response to an allegation of conspiracy made by the plaintiff through counsel in open court on 19th November, 1996. On the following day after some evidence had been given on behalf of the defendant the trial judge indicated that he was satisfied that there was no such conspiracy. At the hearing of any contempt trial, the defendant will point out, inter alia, that it and its writers were entitled to respond to the attacks made on their reputations and to seek to vindicate their good names and reputations. The defendant will also point out that he is entitled to exercise his right of free speech under the Constitution and would argue that he was entitled to engage in legitimate criticism of what occurred in Court.”

“10. I have made these comments because I would not like the Court to believe that the defendant accepted any part of what Ms. McKenna has to say on behalf of the plaintiff. It is clear, however, that there are a great number of issues that would fall to be determined by the jury at the trial of any contempt procedures that might take place in due course and I am advised and so believe that the defendant is entitled to have these matters determined by a jury. In the circumstances, I pray this Honourable Court to refuse the relief sought in the notice of motion.”
13. This affidavit is more like a pleading than an affidavit and does not comply in some respects to provisions and rules of the Superior Courts. However, Counsel, on behalf of the defendant, says that it cannot indicate what the question is to be tried as that would be in the nature of an admission. His client is now facing a criminal trial.

14. The Court was referred to the following authorities:-

(1) Article 38 of the Constitution.
(2) AG -v- O’Kelly (1928) I.R. 308.
(3) In Re. Earle (1938) I.R. 485.
(4) AG -v- Connolly (1947) I.R. 213.
1(5) In Re. Haughey (1971) I.R. 217.
(6) McEnroe -v- Leonard (Unreported Parke J., 9th December, 1975).
(7) Keegan -v- De Burca (1973) I.R. 223.
(8) The State (Cummins) -v- McRann (1977) I.R. 78.
(9) The State (H.) -v- Daly (1977) I.R. 90.
(10) The State (D.P.P.) -v- Walsh (1981) I.R. 412.
(11) In Re. Kelly -v- Duighan (1984) I.L.R.M. 424.
(12) LRC Consultation Papers on Contempt of Court, Chapter 8: Respective Roles of Judge and Jury.

15. The above authorities were either cited or mentioned to the court and were provided for the courts consideration.

16. The Court also considered in the matter of the Child Abduction and Enforcement of Custody Orders Act, 1991 and in the matter of K.A.S., an infant and in the matter of the Courts (Supplemental) Provisions Act, 1961, Section 45(1)(c) and Stigman or in the alternative Section 45(1)(b) between B.S.S., Plaintiff and J.A.S., (otherwise C) defendant and Independent Newspapers (Ireland) Limited -v- Vincent Doyle and Jody Corcoran the first notice parties and Radio Telefis Eireann, second notice parties and Independent Broadcasting Corporation Limited, Raymond McDonald (otherwise Raymond Stone) third notice parties, judgment delivered by Budd J. on the 19th and 22nd May, 1995. The leading case which of course is binding on this Court is the Supreme Court decision in the State at the Prosecution of the Director of Public Prosecutions, Applicant and Anthony Walsh and Carmel Conneely, fourth and fifth respondents, 1981 I.R. 412. In that decision Henchy J. concluded that since criminal contempt was clearly a criminal offence and in the circumstances of the instant case, if proved, would undoubtedly be a major such offence the respondents were, prima facie, entitled to a trial by jury. He went on to hold, however, that the constitutional guarantee of a trial with a jury posited that there were substantial facts controverted. They would be the facts to be determined by the jury but questions of law would be for the Court to resolve. Accordingly, where there were, what he described as “live and real issues of facts” to be determined (such as whether the accused committed the act alleged) the accused has a prima facie right to have those issues of fact determined by a jury. But he also considered that, in cases of criminal contempt, the question whether those facts amounted to a contempt of court charged must be deemed to be a question of law to be decided by the judge. The statement in Brown (1967) I.R. 147 that the literal construction of a constitutional provision could be modified by some other provision of the Constitution applied and is so viewed not merely to express provisions of the Constitution but also to those provisions which have to be imported by necessary implication. To allow a jury to determine not merely the issues of fact but also whether in law they amounted to the offence charged would, in the case of criminal contempt, be seriously at variance, in the view of Henchy J. with the expressed constitutional guarantee of the independence of judges and the implied requirements that fundamental fairness of procedures should be observed. In the central passage of this judgment he continues as follows:-

“A jury has an unqualified and unreviewable power (as distinct from a right) to render a verdict of not guilty in the case which they have jurisdiction to try: (see Devlin on ‘Trial By Jury’, 1965 ed. p.87). Thus, is the question whether a particular act of alleged contempt which was clearly a criminal contempt and inimical to basic fairness of procedures, had to be decided by a jury, the jury by a perverse verdict of not guilty could set at nought the constitutional guarantee that basic fairness of procedures will be observed and could at the same time undermine the independence of the judiciary. The committal is to the arbitrament of layman of the question whether the conduct complained of amounted to criminal contempt is singularly unsuitable for a jury because of the varying standards and values that juries would be apt to apply; because such a question (being a question of the minimum standards of behaviour necessary for the due administration of justice in the Courts) calls for an answer which cannot be given in the laconic and uninformative verdict of untrained and inexperienced laymen; because by their verdicts the jury may put a wrongful acquittal beyond correction; because such an incorrigible acquittal may leave a contended judge in a state of odium and rejection in the minds of the public, to the detriment of his independence: and, finally, because such verdicts may have to be allowed to stand although they condone breaches of the requirement of fundamental fairness of procedures.

The ultimate responsibility for the setting and the application of the standards necessary for the due administration of justice must rest with the judges. They cannot abdicate that responsibility, which is what they would be doing if they allowed juries of laymen to say whether the conduct proved or admitted amounted to criminal contempt. 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.”

17. Henchy J. was expressing the views to the majority but O’Higgins C.J. took the view that there was no constitutional right to a jury in a case of this sort since Article 38.5 had no application to such charges. O’Higgins C.J.’s review is robustly that contempt of court, in all its forms is simply outside the main stream of the substantive criminal law. That seems to have been the common law and according to precedent with what was used in the Saorstat Eireann Constitution of 1922 which is continued by Article 50 of the present Constitution.

18. While much of what I have quoted can be said to be obiter, it seems to this court to be logical and indeed desirable. As the defendant persists that it is admitting nothing, I believe that the Court has a simple issue which is whether these newspaper articles published by the defendant, or any of the articles are a contempt of court. That is a matter primarily of law. The intention of the writers or the editors is not normally relevant. This matter shall be tried by a judge alone and I reserve the question of costs of this application to my colleague who decides the main issue.

Murphy v British Broadcasting Corporation (BBC)

[2004] I.E.H.C. 420

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 21st day of December 2004.
Questions for Decision:
Both the applicant and the respondent, in these proceedings, have agreed that this court should determine as preliminary issues the following two questions:
“1. (a) Is the respondent estopped by the decision of the Special Criminal Court made on 26th day of February, 2001 (sic) or by its stance before that court from arguing that the applicant does not have locus standi to bring these proceedings in the High Court.
(b) if the respondent is not so estopped, does the applicant have locus standi to bring these proceedings in the High Court?
2. Is the respondent entitled to have these proceedings tried with a jury?”
The actual date of the decision referred to was not in fact the 26th day of February, 2001, the date when final argument was made, but rather was the 16th of March, 2001, when the judgment of that court was delivered by the presiding judge namely Mr. Justice O’Donovan.

In a separate and unconnected action in which the respondent’s counsel also appeared, similar questions of law arose with the result that the decision in this case awaited the determination in that action. As it happened that matter I am informed has been resolved by the parties and therefore there is no judgment delivered by the court of trial.

Background
On 15th August, 1998, an atrocity, planned by utmost evil and wicked minds, executed with profound depravity and perpetrated with inhuman savagery, caused the deaths of 31 people, including unborn twins, and otherwise gravely maimed multiple other innocent people. It was and is known as “the Omagh Bombing”. On 5th October, 1999, the applicant in this motion, Mr. Colm Murphy, was charged with two offences directly connected with this horrific slaughter. The first alleged that between 13th and 16th August, 1998, at Dundalk in the county of Louth, he, as an accused person, unlawfully and maliciously conspired with others to cause by an explosive substance, an explosion of a nature likely to endanger life or cause serious injury to property whether within the State or otherwise. The second charged the applicant with being, on 14th August, 1998, a member of an unlawful organisation styling itself the Irish Republican Army otherwise known as Óglaigh na hÉireann. Whilst these charges were pending before the Special Criminal Court and at a time when the trial of the applicant was fixed for 16th January, 2001, the respondent (“the BBC”) decided to broadcast a special Panorama programme on the bombing. It is that programme, and its pre-broadcast publicity, as well as related material on its website, which gives rise to this motion and to the preliminary issues above identified.
In late September 2000 the applicant, as he left Dundalk Garda Station, was accosted and asked questions by a film and sound crew of the BBC. This was part of its then intended Panorama film which was scheduled for transmission on 9th October, 2000. On 4th October “The Star” newspaper, which is circulated within this jurisdiction, published, on page 1 of that edition under the heading “Omagh Bombers unmasked – Top TV show to name mass murderers”, an “exclusive” about this programme. The report continued on inside pages with Mr. Murphy being named as a person facing charges in connection with the bombing.
Being concerned that the proposed programme could possibly prejudice the trial of their client, Messrs E. Hanahoe & Company Solicitors wrote, without satisfaction, to the BBC by way of letter dated 6th October, 2000. On the 9th October immediately prior to its transmission, the Northern Ireland Human Rights Commission failed in its High Court attempt to prevent the programme proceeding.
As scheduled, the programme was broadcast by the respondent corporation and was received extensively in this and in the neighbouring jurisdiction. It was repeated at 12.25 a.m. on Friday 13th October, and a transcript of its detail, together with additional material, were placed on the BBC’s internet website. During the course of the transmission it was stated inter alia that Mr. Murphy was a seasoned terrorist with previous convictions and that he had admitted to the gardaí that, on the eve of the bombing, his and another person’s mobile phone were given to a named individual in the knowledge that the same “were being used to move bombs”. A great number of other matters were also mentioned with repeated and detailed references being made to both the direct and surrounding circumstances of the bombing and the subsequent investigation thereof by the relevant authorities.
Proceedings before the Special Criminal Court
On 9th January, 2001, Mr. Murphy the applicant issued a notice of motion against the BBC seeking the following relief:-
“(1) Leave to issue an order of attachment and/or committal against the British Broadcasting Corporation, its directors, managers, servants or agents pursuant to O. 44 r. 3 of the Rules of the Superior Courts, 1986 as applied by s. 41(4) of the Offences Against the State Act, 1939.
(2) Subject to the order sought at para. 1 an order of attachment and/or committal against the British Broadcasting Corporation its directors, managers, servants or agents pursuant to s. 43(1)(e) of the Offences Against the State Act, 1939.
(3) Directions as to the remedying of the effects of the contempt of court committed by the British Broadcasting Corporation, its directors, managers, servants or agents herein.
(4) Further and other relief.”
This was grounded upon an affidavit of Michael Farrell sworn on 9th January, 2001. In that affidavit it was claimed inter alia that, by the programme and the associated articles, the BBC sought to and did influence public opinion on Mr. Murphy’s trial. Furthermore it was suggested that the published material proceeded on the assumption of his guilt, that its content had pre-judged the trial and that its content had conveyed that pre-judgment to the general public. Moreover, potential witnesses and persons generally were influenced in a manner prejudicial to the applicant. These and other matters led Mr. Farrell to the opinion that the accused might not receive a fair trial.

A similar motion issued against Associated Newspapers, who are the owners of the “Daily Mail”, in respect of which complaint was made about articles which appeared on 28th October and 5th December, 2000. Whilst this company was of course a party to one of the motions heard before the Special Criminal Court it did not in any separate way participate in the proceedings before this court. In any event, no point of relevant distinction exists between it and the BBC. Accordingly, this judgment effectively applies to the BBC as the sole respondent and deals with the particular motion moved against it in this court.
The replying documentation was based upon two affidavits filed by Mr. Michael Kealey, from the firm of McCann Fitzgerald Solicitors, who were retained on behalf of the BBC. The first such affidavit was sworn on 26th January, 2001, and the second on 7th February of that year. In the initial evidence he asserted a belief that his client was entitled to a trial with a jury on the contempt application, and that there were a number of factual matters which required to be resolved. He went on to deny that the BBC had any intention of influencing public opinion on issues material to the applicant’s case, or of pre-judging his trial or of pre-determining his guilt. Moreover, Mr. Kealey claimed that the intention of his client was solely designed to communicate, to the public and to the victims of the tragedy and their families, important information and genuinely held opinions on matters of very considerable public interest, which matters had already been the subject matter of extensive public debate. In his second affidavit he identified what he considered to be a number of important factual matters which required resolution by a jury, one of which was the question of mens rea.
At a preliminary hearing before the Special Criminal Court on 29th January, 2001, counsel on behalf of the respondent argued that the High Court, and not the subject court, was the more appropriate venue to determine this motion. Counsel also asserted his client’s right to a trial with a jury. The application, as was intended, was then adjourned to 12th February. On that occasion, apparently without any previous notification but having been served with the proceedings, the D.P.P. was represented, and sought permission to argue that the applicant had no standing to initiate or prosecute what he described as “that offence”. As Mr. Murphy was not a common informer, as that term should be understood, the only person who could prosecute a public offence was the D.P.P. Although it was not quite clear at that time whether this submission was intended to cover both the Special Criminal Court and the High Court or simply the former, a point later clarified, the issue raised was of sufficient importance that despite some misgivings the court agreed to adjourn the full hearing of the application until 26th of February, 2001. In so doing it directed that written submissions should be filed and exchanged between the parties and also requested the applicant’s solicitor to write to the Director and to enquire of him whether, in the event of the court ultimately finding in his favour would he in the public interest, either take over the existing motion or initiate fresh proceedings of his own. That inquiry was met with a polite but firm refusal on both counts.
The substantive hearing commenced on 26th February, 2001. Mr. Thomas O’Connor SC, appearing for the D.P.P., submitted that:-
given,
(a) the nature of the complaint in question,
(b) the true position of a common informer, as preserved by Article 30.3 of the Constitution, being that that since 1937 any continuing role for such a person was confined to courts established under Article 34, and
(c) the statutory creation and thus the limited nature of the Special Criminal Court, as permitted by Article 38.3 of the Constitution,
the resulting situation was that the applicant did not have locus standi to maintain these proceedings and that, save perhaps for the court itself, the only other person who could so do was the D.P.P. In addition counsel on this occasion made it quite clear that his submission on this front was focused exclusively on the Special Criminal Court. In fact in his clear view it was perfectly open for Mr. Murphy to bring these proceedings in the High Court which undoubtedly would have jurisdiction to deal with the matter.

Decision of that Court:
Having heard what all the parties present wished to say, the Special Criminal Court found itself in a position to give an ex tempore ruling on this point. Having quoted s. 45(1)(e) of the Offences Against the State Act, 1939, which bestows upon that court “jurisdiction and power to punish, in the same manner and in like cases as the High Court”, all persons found guilty of contempt by that court whether or not committed in the presence thereof, O’Donovan J., speaking for the court, concluded that since the High Court had jurisdiction then likewise, under the section mentioned, the Special Criminal Court had. Accordingly there existed in his view a parallel jurisdiction in both courts.
Immediately following these conclusions, Mr. Feeney SC on behalf of the respondent raised the question of “venue”, and secondly he re-asserted his client’s entitlement to a trial before a jury. Suggesting that the former matter should be disposed of first, a viewpoint shared by all, both the applicant and the BBC then made submissions in respect thereof. These submissions centered on which of either court would be the more appropriate one. Judgment was reserved and delivered on 16th March. The decision of the court was to the effect that, whilst it had jurisdiction to determine the issues in its own right, nevertheless in its opinion the High Court was the more convenient and appropriate venue for the determination of the subject issues. This decision and the resulting order of the 19th of November, 2001, concluded the matter before the Special Criminal Court. There was neither an appeal therefrom nor any review of its findings.
Proceedings before the High Court
As there are no rules of court providing for the transfer from the Special Criminal Court to the High Court of any matter standing before it, the applicant, without objection, decided to re-issue these proceedings in the High Court. That occurred with the issue of a motion dated 22nd June, 2001. In essence, for present purposes, it can be said that the essential relief claimed was similar though not identical to that previously sought, with the parties also agreeing that the original replying affidavits should be taken as applying. In addition, however, to the jury point, it emerged from further documentation that the BBC was also submitting that the applicant had no locus standi to bring these proceedings before this court and that the judgment of the Special Criminal Court could not be read as having so decided this point against it. This suggestion of re-opening the standing point was not only denied by Mr. Murphy but was responded to by an argument on his behalf that by reason of what transpired in the proceedings before the Special Criminal Court, the respondent could not now dispute the applicant’s entitlement to proceed.
This background leads to the first question in the preliminary issue.

Question 1
This first question raises two issues, namely, the effect of the decision of the Special Criminal Court given on 16th March, 2001, and secondly, having considered the position adopted by the BBC before that court, to then identify what legal consequences follow in the context of its attempts to argue the locus standi point before this court.
On behalf of the applicant it is submitted that by reason of its conduct, including its submissions, and by virtue of the Court’s decision, the respondent is deprived of any right to raise the issue of standing. It is said on his behalf that the BBC is estopped from denying that this court has jurisdiction to deal with the motion and that Mr. Murphy has a legal right to maintain it. It is further said that the respondent adopted the submissions of the D.P.P. on the issue and that as a result it is bound in the same way as the Director is by the judgment of the court. That judgment it was stressed was not appealed or otherwise reviewed. Accordingly it has the status of a final and binding one as between all parties including the respondent. The People (Director of Public Prosecutions) v. O’Callaghan [2001] 1 I.R. 584 was referred to in support. In addition, it is argued that by virtue of its conduct the respondent is likewise prohibited from making the argument under discussion. Several portions of the transcript were relied upon as illustrating the position adopted by the BBC during the final hearing of the 26th February, 2000. That position, as repeatedly outlined by counsel on its behalf, was to the effect that whilst a concurrent jurisdiction existed, this court nevertheless was the more appropriate and convenient one for Mr. Murphy to pursue and to ventilate the basis of his complaint. It cannot now resile from these representations. Accordingly the respondent is by conduct estopped or alternatively by the same conduct is committing an abuse of process.
Counsel for the BBC takes issue with this stance. He says that the decision given on 16th March, 2001, dealt exclusively with the position of the Special Criminal Court and did not determine that this court had jurisdiction or that in the process or separately, Mr. Murphy could personally initiate this type of criminal proceeding. It was in his view wrong to say that the decision contained any express finding with regard to the High Court. The real issue before the Special Criminal was one of jurisdiction and not one of locus standi. It is the latter which the respondent now wishes to argue and to do so in a much more general way than the D.P.P. did before the Special Criminal Court. It is submitted that the relevant extracts from the transcript have been taken and used out of context and that since the respondent effectively played no part in the issue determined by the Special Criminal Court, it could not be bound thereby either through the doctrine of estoppel or otherwise. McCauley v. McDermott [1997] 2 I.L.R.M. 486 was opened as indicating the essential ingredients of this doctrine. It was claimed that it could not apply to the BBC in the present circumstances as the respondent was not a “party” to the issue determined and secondly that such determination was based on a concession which also deprived the required status.
The jurisdiction of the Special Criminal Court which is relevant to this issue, is contained in s. 43 of the Offences Against the State Act, 1939. Its material provisions read as follows:-
“43 – (1) A Special Criminal Court should have jurisdiction to try and to convict or acquit any person lawfully brought before that court for trial under this Act, and also shall have the following ancillary jurisdictions, that is to say:-
(a) …
(b) …
(c) …
(d) …
(e) jurisdiction and power to punish, in the same manner and in the like cases as the High Court, all persons whom such Special Criminal Court finds guilty of contempt of that court or any member thereof, whether such contempt is or is not committed in the presence of that court:
(f) …
(2) …”
As part of the court’s ruling on the D.P.P.’s submissions above referred to, Mr. Justice O’Donovan, having recited the arguments made on behalf of the notice party (D.P.P.), said, at page 74 of the transcript:-
“In the view of the court, all of these arguments ignore the irrefutable fact that s. 45(1)(e) of the Offences Against the State Act, 1939 specifically provides that the Special Criminal Court has:
… jurisdiction and power to punish, in the same manner and in like cases …
We would underline and emphasise ‘in all like case’.

‘… as the High Court, all persons whom such a Special Criminal Court find guilty of contempt of court or any member thereof, whether such contempt is or is not committed in the presence of that court’.”
In that regard it was conceded on behalf of the D.P.P. that Mr. Murphy was entitled by law to vindicate the complaints which he is making before this court in the High Court. If that is so, then it is the opinion of this court that in this court such a complaint would be a like case within the meaning of s. 45 as that which Mr. Murphy could bring in the High Court. Accordingly it is the view of this court that Mr. Murphy has, indeed, locus standi to ventilate his complaint in this court”.

In interpreting and applying this judgment it is important in my view to appreciate that whilst the D.P.P.’s submissions related to the Special Criminal Court, one aspect of them was Mr. Murphy’s legal capacity to move the motion. A second undoubtedly was an attack on the type of contempt which the court, being a creature of statute, could deal with. In that regard one could describe these elements of the submission as being on “locus standi” and “jurisdictional” issues respectively. However, when referring to the High Court, it is my firm view, based on a consideration of the transcript, that this technical distinction in terminology was not always maintained. On many occasions the term “locus standi” and “jurisdiction” were referred to as having the same meaning and consequence, namely that the applicant could fully pursue his claim in this court. It was never suggested that the High Court lacked jurisdiction in its own right or because of Mr. Murphy’s standing or indeed for any other reason. Nor was it ever said that the applicant had no right to move in the High Court. In fact, not later than the commencement of the hearing held on 26th February it was evident, by express representation delivered in the same breath, that the High Court had full jurisdiction on the matters at issue and that likewise Mr. Murphy had a full right and entitlement to maintain and vindicate his complaint before that court. Accordingly on the question of standing, I reject any submission from the respondent which now seeks to make any meaningful distinction between jurisdiction and locus standi. In my view this was also the clear understanding of and the position adopted by the Special Criminal Court.
In McCauley’s case, Keane J., speaking for the Supreme Court, referred with approval to Carl Zeiss Stiftung v. Rayner and Keeler Limited [1967] 1 A.C. 835, where at p. 935 of the report the essential features of issue estoppel were in the view of the learned judge “helpfully summarised”. These were described as follows:-
“The requirements of issue estoppel still remain
(i) that the same question has been decided;
(ii) that the judicial decision which is said to create the estoppel was final; and
(iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or the privies”
It is clear that these said elements were outlined in a civil action, and as a result if the doctrine otherwise applied in criminal proceedings the phraseology used would require a good deal of modification.

This very issue was lately considered by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. O’Callaghan [2001] 1 I.R. 584. The court in its judgment referred to a number of earlier decisions where some relevant principles were set out. In Kelly v. Ireland [1986] I.L.R.M. 318 O’Hanlon J. held that if in the course of a criminal trial a clearly identifiable issue had been decided against a party to those proceedings and if a judgment explaining the reasons therefor had been delivered, then such decision could give rise to an issue estoppel in later civil proceedings involving the same party. That view was endorsed by Lardner J. in Breathnach v. Ireland [1989] I.R. 489. These decisions are therefore relevant authorities but are confined to a situation where the subsequent proceedings were civil in nature. Where such proceedings however were not civil but criminal, the case law on this topic was inconclusive until O’Callaghan. In that case Hardiman J., giving the judgment of the Court, at p. 594 of the report said “there appears to be no reason in principle suggesting that a discrete, clearly identifiable issue decided in a criminal trial should not give rise to an estoppel in a subsequent criminal trial, if it is capable of giving rise to an estoppel in a civil action.” Accordingly if the elements of the doctrine are otherwise present, then its consequences may also apply where both sets of proceedings are criminal in nature.
In my view it is evidently clear that the Special Criminal Court rested its conclusion on the provisions of s. 45(1)(e) of the 1939 Act. Such a conclusion had to be grounded upon a finding that the High Court had “jurisdiction and power” to deal with the specific contempt application before it, and that such application was a “like case” as could be dealt with in the High Court. In my view, without such a finding
s. 45(1)(e) of the 1939 Act could not apply, and as a result the Special Criminal Court could not have rested its jurisdiction on that basis. Only if the High Court had jurisdiction, that is over the subject matter and the parties, could this statutory provision operate so as to confer power on the Special Criminal Court. Accordingly in my opinion there is no doubt but that the judgment of the Special Criminal Court was predicated on the conclusion that this court had such jurisdiction, in the manner in which I have described.
I say “conclusion” rather than finding to allow for the possibility that the submission of the D.P.P., with regard to the competence of and the applicant standing before this court, could be described by some, as a concession. For my part I would be more inclined to regard it as part of his submissions, which of course the court could properly take into account. Even, however, if the D.P.P.’s view be truly a concession, it seems to me to be implicit from an overall analysis of the transcript and from the judgment, that most probably this conclusion was not simply based on such a concession, which of course the court could disregard if it so wished, but rather was in itself an independent finding of that court. In any event as there was no appeal against the decision of that court, and since no form of judicial review proceedings were taken, the judgment of the court stands as its final determination on this issue.
In my opinion, it is possible that the doctrine of “issue estoppel” is capable of applying in this case. A clearly identifiable issue namely the jurisdiction of the High Court, which is not in dispute, and the standing of Mr. Murphy before that court, were raised in the proceedings before the Special Criminal Court and determined by its judgment which gave reasons therefor. Such proceedings can be described as criminal in nature as can the existing proceedings before this court. The fact that the initiating document is a notice of motion in both cases is in my view irrelevant.
And the BBC was a party to the earlier proceedings and apparently adopted the arguments of the D.P.P. At least that is what his counsel said in the presence of and without objection from Mr. Feeney S.C. Accordingly some case can be made for its application to this matter.

As against this however there are clearly a number of serious problems remaining with the doctrine. Firstly it could be said that in reality the present notice of motion is part of the “same proceedings” as were heard before the Special Criminal Court; secondly there is the debate on the making of a concession and its consequences, thirdly there is the possibility that the BBC did not in fact adopt the argument of the D.P.P. and, fourthly one cannot fully discount the possibility of some confusion existing between the role of the respondent and the notice party before the Special Criminal Court.
However there are even more significant difficulties. The first could be described as fundamental. The discussion above outlined proceeded on the assumption that the role which issue estoppel plays in the substantive criminal law, is equally capable of applying to proceedings, which though undoubtedly criminal in nature, are nevertheless born out of contempt allegations. This matter is further discussed later in this judgment. Secondly, the Supreme Court decided in the Corporation of Dublin v. Flynn [1980] I.R. 357 that the doctrine could operate only for the benefit of an accused person and not for the prosecution. Even, therefore, if issue estoppel did apply to contempt proceedings it would seem that Mr. Murphy is undoubtedly not an accused person but rather the respondent is. And thirdly it is my considered opinion that in reality the respondent did not adopt the D.P.P.’s submissions on the standing issue before the Special Criminal Court; rather it is my belief that despite having a full opportunity of so doing or of making separate submissions it remained mute. That therefore brings us into a difficult and uncertain area of estoppel which is one created by omission. Whilst undoubtedly the principle can be raised by way of omission its parameters in that regard are by no means clear cut. See the old case of Cox v. Dublin City Distillery (No. 2) [1915] 1 I.R. 345 at 372 and the only modern case which I can find on the point: Carroll v. Ryan [2003] 1 IR 309.

Accordingly for these reasons I am not prepared to hold that the BBC is prevented by way of issue estoppel from arguing the standing of Mr. Murphy in this court.

This view, however, whilst deposing of the estoppel point does not fully deal with the conduct issue. In fact I am firmly of the view that by reason of the overall position which the BBC adopted before the Special Criminal Court, it would be an abuse of this court to permit the respondent to now argue the question of Mr. Murphy’s standing. This opinion of mine derives not only from the transcripts which are available, but also from the submissions filed on its behalf. These can be dealt with immediately. From a perusal of these documents it is immediately evident that this point, namely the inability of Mr. Murphy to maintain these proceedings, did not form any part of the BBC’s legal armoury in defending this motion; certainly at the time of their composition, which pre-dated the 26th February, 2001.
In addition, however, on the second factual aspect of this first question it is necessary also to refer in more detail to the transcript of the evidence heard before the Special Criminal Court. A similar task is not required in respect of the affidavits filed by the BBC in support of its position before that court. This is because even from a casual examination of such documents it is quite clear that there is no reference or mention to the locus standi point. This was, as stated above, raised for the first time in Mr. Kealey’s affidavit of the 23rd July, 2001.
Hearing of 12th February, 2001
Immediately prior to the D.P.P.’s intervention on that occasion, Mr. Michael O’Higgins SC on behalf of the applicant outlined to the court what he felt were the issues between the parties. They were three in number. The first was described as “venue”; namely whether the Special Criminal Court or the High Court should determine the issue. The second dealt with the respondent’s assertion of a right to have a jury trial and a third centred on the question of mens rea. In truth this question of intent was not a separate point, as the BBC’s reliance upon it was to further their argument of having a trial with a jury.
Mr. Feeney SC was asked by O’Donovan J. as to why he had not made the locus standi point. Page 26 of the transcript contains the reply. He informed the Court that he would have to bring it to the attention of his clients, would have to obtain from them precise instructions and would require some time to act upon them. This response therefore clearly indicated that the BBC had no intention, at least up to that point in time of relying upon this point.
Hearing of 26th February, 2001
When Mr. O’Connell SC had finished his submission on the standing point, counsel for the BBC sought to “identify what my position is in relation to this argument”. He said that he had arguments which he wished to make to the court if it decides that it has a parallel jurisdiction with the High Court. Until that issue was determined Mr. Feeney SC, quite rightly in my view, felt that this “court venue issue” was premature for argument. Save for that observation the issue of standing was debated entirely between the applicant and the D.P.P.
Immediately following the judgment of the court, counsel for the respondent commenced his submissions on the question of venue. His argument, put very simply, was that though both courts had parallel jurisdiction nevertheless the High Court was for the reasons outlined by him by far the more convenient and appropriate forum to determine the matter. This point of view was entirely consistent with the written submissions filed on behalf of the respondent. In both the “outlying submissions” and the “further outlying submissions” it is in fact asserted that both courts have equal jurisdiction but the forum conveniens is the High Court. Therefore I could not accept in any way the suggestion that the foundation underlying these submissions was based on due deference to the judgment of the Special Criminal Court, as in my view the question of standing was never part of the respondent’s submissions to that court.
During the course of his submission counsel made it clear on a number of occasions that if the Special Criminal Court should decide upon the High Court, that finding would not in any way amount to a denial of the applicant’s entitlement to bring the matter before this court (page 77 of the transcript). At pages 96-98 it is acknowledged that a preference for this court would not be an interference with Mr. Murphy’s right to pursue or ventilate his claim here. In fact it was claimed that his right to pursue that claim would be more fully satisfied in the High Court. The position of the BBC is in fact I think summarised in a closing passage from Mr. Feeney S.C., which appears at p. 108 of the transcript. It reads “therefore I say it is appropriate for you to decline to exercise the jurisdiction. I do not in any way say that this is an end of the matter. I recognise that in declining it, if you agree with me, that you would be recognising, and it was being recognised by all the parties that it is open to the applicant to bring the application he desires to bring in front of the High Court (sic).” If this is an accurate representation of the BBC’s position, which I believe it is, being one determined prior to the standing issue, I can only conclude that though full opportunity for contrary argument was available, the respondent in full knowledge and with full deliberation accepted at all times the standing of Mr. Murphy to bring these proceedings in the High Court.
That being so it would be an abuse of the process to permit the Corporation to now re-open this issue. I would accordingly hold against it on this point.

However, and entirely without prejudice to this finding I do propose, following the submissions made, to offer a view on this question of standing.

The substantive issue of locus standi:
This issue, it was submitted by the respondent corporation, was not a jurisdictional one, properly so called, but rather an issue of locus standi. That is who can initiate, continue and progress to a conclusion, a complaint of contempt similar in nature to that which is the subject matter of this motion. A distinction can be made for this purpose between civil contempt, where it is acknowledged that private individuals can seek the assistance of the court, and contempt in facia curiae, where it is conceded that every court can summarily deal with such matters. However, neither of these situations are present in this case. Rather, the contempt in question, being that described at paragraph 57 below, is not one committed in the face of the court but is of a type which correctly be described as criminal in nature. As a result it is claimed that the only body which can move to a conclusion such a contempt is the D.P.P.
This submission is essentially grounded upon Article 30.3 of the Constitution which reads “all crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than the court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose”. Read with that must be s. 9 of the Criminal Justice (Administration) Act, 1924, which provides that:-
“(i) all criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney General.
(ii) save where a criminal prosecution in a court of summary jurisdiction is prosecuted by a Minister, Department or State, or person (official or unofficial) authorised in that behalf by the law for the time being in force, all prosecutions in any court of summary jurisdiction shall be prosecuted at the suit of the Attorney General …”.
It is therefore claimed that since the subject contempt could not be described as minor then in accordance with the provisions above quoted “the moving party has to be the D.P.P. who for relevant purposes replaced the Attorney General in 1974”.

The case of the State (Ennis) v. Farrell [1966] I.R. 107 does not, it is said, assist Mr. Murphy. In that case the Supreme Court decided that Article 30.3 of the Constitution had no impact on the pre-1937 position of a common informer, and accordingly whatever rights such an individual had prior to that were unaffected. However, it is claimed that such a person had no right, at common law, to pursue a contempt complaint of a non-minor nature. Therefore the State (Ennis) does not enhance the position of the applicant.
In addition this case could also be distinguished on the basis that the decision of the court referred to the initiation of a prosecution by information or summons whereas in the present situation the originating document was a notice of motion.

By way of general argument it was submitted that the doctrine of contempt was designed to protect the public interest and that any violation thereof created what was described as a “public offence”. That being the situation the only person authorised by law to vindicate such public rights was in the present context the Director of Public Prosecutions. The Society for the Protection of Unborn Children (Ireland) Limited v. Coogan & Ors [1989] I.R. 734 and the Irish Permanent Building Society v. Caldwell (Registrar of Building Societies & Ors) [1979] I.L.R.M. 273 were referred to as examples where this practice was applied.
In the specific case of a contempt situation, it was pointed out that the issue of whether a private individual could move a contempt matter was raised but left open in Re: MacArthur [1983] I.L.R.M. 355. In that case, however, it should be noted that Costello J. observed that up to then at least, all such applications both in Ireland and in England “in connection with pending criminal trials have been made by one or other of the law officers”. Apart from de Rossa v. Independent Newspapers Limited [1998] 2 ILRM 293 and Kelly v. O’Neill [2000] 1 ILRM 507 there were no other cases in which this type of contempt has been initiated by a private individual. It is submitted that The State (at the prosecution of Commins) v. McRann [1977] I.R. 78 is not an authority favourable to a private individual in this regard and accordingly the reliance placed upon it by the learned judge in de Rossa was misguided. In addition, if a prosecution could be taken otherwise than by the D.P.P. great practical difficulties would follow, especially if, as the respondent also urged, it was entitled to a trial by jury. Where for example would a private individual commence the contempt process, at what stage would a jury be involved, who would empanel a jury and what issues would such a jury have to determine etc. These and other examples strongly militated against granting the applicant the standing which he seeks in this case.
Finally, reference was made to the position in the United Kingdom where confusion and uncertainty still remains. Dobson v. Hastings [1992] All E.R. 394 and Chief Constable of Leicestershire v. Garavelli [1997] EMLR 543 were cited, thereof not opened.
On behalf of Mr. Murphy it was submitted that there was no merit in the D.P.P.’s position and that it flew in the face of authority. It was immediately recognised by the applicant that the Director had power to move this application if he wished but that a request to so do was met with an unconditional rebuff. Accordingly if the primary submission on the question of standing was accepted by this court it would mean that the judicial arm of government in certain circumstances could be powerless. It was claimed that every court must have an inherent right to police the laws of contempt. Reference was made to Article 38 of the Constitution and also to the decision of Hanna J. in Attorney General v. O’Kelly [1928] I.R. 308. Moreover, every court dealing with criminal matters must ensure the integrity of the process and must take all appropriate steps to safeguard an accused person’s right to a fair trial. That inherently involves the right of a person affected to move a contempt matter before that court and correspondingly a power in that court to deal with the matter. It would be an extraordinary position if, for example the Director, as the prosecuting agent in this case, could move the court if he decided but Mr. Murphy, as an accused person, in respect of the same matter could not. That would create an unacceptable regime of inequality, which would violate Article 38.1, and Article 40.3 of the Constitution as well as Article 6 of the European Convention of Human Rights; all of which created, as part of a fair trial inter alia the right of equality of arms. That would be seriously undermined if only the D.P.P. could initiate such matters.
It was also submitted that de Rossa is an authority against the BBC on this very point and further support can be obtained from the judgment of O’Higgins C.J. in State (D.P.P.) v. Walsh, [1987] I.R. 412 at p. 429. Finally it is said that MacArthur is distinguished by reason of the context in which the observation above quoted was made.
The substantive issue of Trial by Jury
This second question is the fundamental point raised on behalf of the British Broadcasting Corporation. It is claimed on its behalf that this allegation is a criminal offence at common law where no maximum punishment is specified and accordingly it could not be described as minor. Therefore at least prima facie it is entitled to a jury trial under Article 38.5 of the Constitution.
Although there have been a number of cases almost directly on this point since the passing of the Free State Constitution of 1922, it was not necessary in the respondent’s view to deal with such cases at any length, as the point in its submission had been conclusively determined by the majority view of the Supreme Court in The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412. In that case, O’Higgins C.J. came to the conclusion that there was never a right to a trial with a jury irrespective of circumstances. That opinion however did not represent the position of the Court, for whom Henchy J. spoke. At p. 439 of the report the learned judge said:-
“When the major offence charged is contempt of court, and if there are live and real issues of fact (such as whether the accused committed the act alleged against him, or whether it was done with his approval, etc.), the accused has a prima facie right under Article 38.5 to a trial with a jury, thus entitling him to have those issues of fact committed to a jury for their determination. As at present advised, I do not find any other provision of the Constitution which would rebut that presumption. It would not seem to be compatible with the constitutional requirement of fundamental fairness of procedures, or with the equality before the law guaranteed by Article 40.1, if contempt of court, which carries with it the risk of a fixed but unlimited term of imprisonment or an unlimited fine, were the only major offence which is exempt from the requirement of a determination by a jury of the controverted facts.
But where the facts are admitted, or have been determined by a jury, or have been duly and properly decided by a judge not to be an issue, I consider that the question of whether those facts amount to a contempt of court charged, must be deemed to be a question of law to be decided by the judge, provided the judge is vested with the original jurisdiction necessary to try such a contempt of summary. This appears to me to be a necessary corollary of certain constitutional postulates, especially the guarantee in Article 35.2 that all judges should be independent in the exercise of their judicial functions and subject only to the Constitution and the law, and the implied but pervasive requirement that fundamental fairness of procedure should be observed. The latter requirement could not be observed when the question of whether a particular piece of conduct amounted to contempt of court had to be resolved by a jury.”
Accordingly once there are “real and live issues of fact” in issue between the parties then it is for the jury to determine such matters and thereafter for the judge to enter a verdict of guilty or not guilty. As such issues exist in this case then under that decision the respondent is entitled to a jury.

De Rossa v. Independent Newspapers Limited [1998] 2 ILRM 293 was referred to as an authority for the submission that the learned judge, either by reason of precedent or otherwise independently, came to a conclusion that trial by jury was available where real and live issues of fact existed. The following passage from the judgment of Kinlen J. was open to this court. It followed a lengthy reference to the judgment of Henchy J. in Walsh and a recital of the passage which commences at the bottom of page 439 of the report. It reads as follows:
“Whilst much of what I have quoted can be said to be obiter, it seems to this court to be logical and indeed desirable. As the defendant persists that it is admitting nothing, I believe that the court has a simple issue which is whether these newspaper articles published by the defendant, or any of the articles, are in contempt of court. This is a matter primarily of fact. The intention of the writers or the editors is not normally relevant. This matter shall be tried by a judge alone and I reserve the question of costs of this application to my colleague who decides the main issue.”
It was suggested that the actual decision of no jury was reached because of the judge’s particular opinion that motive was irrelevant and that therefore by implication there were no other issues of fact were raised in the case. In reality, however, it was claimed that Kinlen J. followed the decision in Walsh.

There are several such issues of fact remaining in the instant application. Many of these are set out in the affidavit of Mr. Kealey sworn on 7th February, 2001, which is referred to at para. 8 above. In addition, however, it is part of the BBC’s claim that an essential ingredient of the crime of contempt is mens rea. Though the traditional view was to the contrary, nevertheless it is at least arguable, according to the submission, that following the judgment of Keane J. in Kelly v. O’Neill this element is now necessary: see p. 538 of the reported decision. This question of mens rea is consistent with the approach adopted by the same judge on matters of strict liability, such as in the case of Shannon Regional Fisheries Board v. Cavan County Council [1996] 3 IR 267. Moreover whilst the law of contempt in England is essentially governed by the Contempt of Court Act 1981, nevertheless the issue of contempt at common law has been addressed in several cases including Attorney General v. Newspaper Publishing Plc. [1997] 1 WLR 926 where Lord Bingham C.J. made the following observation:-
“Both parties accept the test propounded by Sir John Donaldson M.R. in Attorney General v. Newspaper Publishing Plc. [1988] Ch. 333, 374-375. To show contempt, the Attorney General must establish, to the criminal standard of proof, that the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such an intent need not be expressly avowed or admitted, but can be inferred from all of these circumstances, including the forseeability of the consequences of the conduct. Nor need it be the sole intention of the contemptnor. An intent is to be distinguished from motive or desire; see per Lord Bridge of Harwich in R. v. Maloney [1985] AC 905, 926.”
Therefore this requirement and the other matters previously identified, constitute in the respondent’s view, real and live issues of fact which require determination before a jury.

In addition the provisions of Article 40.6.1.i of the Constitution and Article 10 of the European Convention on Human Rights were also relied upon. These deal with freedom of expression. Though, for the purposes of this case, the European Convention on Human Rights Act, 2003, is not directly applicable, nevertheless even prior to its enactment, the Convention has on several occasions been referred to in and taken into account by the Irish courts. Desmond v. Glackin (No. 1) [1993] 3 I.R. 1 is one such decision, as is the Supreme Court’s judgment in De Rossa v. Independent Newspapers Plc. [1999] 4 IR 432 at p. 449.
Article 10 confers on “everyone” a right to freedom of expression. The exercise of this right however may be subject to such requirements or penalties “as are prescribed by law and are necessary in a democratic society….for maintaining the authority and impartiality of the judiciary”. That article played a central role in the decision of the European Court of Human Rights in the Sunday Times v. United Kingdom [1979] 2 EHRR 245. That was a case in which the domestic court had granted an injunction restraining the publication of a number of articles which discussed issues involved in ongoing litigation. The English courts came to the view that an injunction was necessary because otherwise the publication in question would constitute contempt of court. The European Court of Human Rights agreed that the interference was prescribed by law and that the aim of such restriction was legitimated under article 10(2) of the Convention. However, it differed from the national court by concluding that the prohibition was not necessary in a democratic society for maintaining the authority of the judiciary. The reasons for this conclusion are set out inter alia at paragraphs 65 – 67 of the judgment. Therein it was pointed out that account must be taken of any public interest aspect of the case in question when the court is considering the sufficiency of the reasons put forward for the interference in question. Such “public interest reasons” are of fundamental importance to the respondent’s argument as it has always claimed that by reason of the enormous tragedy of the bombing there was overwhelming public interest in the topics raised by and covered in the articles complained of. Accordingly, for the reasons above outlined, the BBC had a right to have the disputed questions of fact determined by a jury which right it insisted upon exercising.
Counsel on behalf of the applicant submitted that there was no right to a jury trial in relation to contempt proceedings, with this position being established at common law and being one which continued to apply notwithstanding the 1922 and 1937 Constitutions. This is clear from the decisions in Attorney General v. O’Kelly, [1928] I.R. 308, In Re: Earle [1938] I.R. 485 and Attorney General v. Connolly [1947] I.R. 21. Support for this view is also obtained from In Re: Haughey [1971] I.R. 217, Keegan v. de Burca [1973] I.R. 223 and in particular from the decision of the then President of the High Court, Finlay P., in The State (Commins) v. McRann [1977] I.R. 78.
Section 8 of the Courts (Supplemental Provisions) Act 1961 was further support for this proposition, as subsection (2) of section 8 provided as follows:
“8(2) There shall be vested in the High Court—
(a) all jurisdiction which was, immediately before the commencement of Part I of the Act of 1924 vested in or capable of being exercised by the former High Court of Justice in Southern Ireland or any division or judge thereof and was, immediately before the operative date, vested in or capable of being exercised by the existing High Court,
(b) all jurisdiction which, by virtue of any enactment which is applied by section 48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing High Court.
(3) The jurisdictions vested in the High Court shall include all powers, duties and authorities incident to any and every part of the jurisdictions so vested.”
The decision of the Supreme Court in The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412 suggested that in certain very limited circumstances there may be a role for a jury in a contempt application. However, it is submitted that the observations of Henchy J., some of which are cited at para. 42 of this judgment, were obiter and that in any event there were no real and live issues of fact in the present application. There was no question but that the respondent corporation was responsible for the broadcast in question and the material on its website and therefore the only issue remaining whether or not the publications complained of constituted a contempt of court. In addition, however, even if this court was minded to follow The State (Director of Public Prosecutions) v. Walsh, it would have to embark upon a determination as to whether or not there were in fact any real and live issues of a factual nature between the parties and until that exercise had been completed this application was premature.
It was claimed on behalf of Mr. Murphy that as well as preserving public confidence in the administration of justice, the law of contempt was inextricably linked to judicial independence and accordingly the courts must be free to police and control their own procedures, dignity and self respect. Noting that the Director of Public Prosecutions was in fact the prosecuting agency in the substantive matter against the applicant, it would be a serious impediment to the integrity of the judicial process if its maintenance was reliant upon a jury or indeed for that matter the Director of Public Prosecutions. It must master its own destiny.
It was claimed that support for this view was obtained from the decision of Budd J. in S v. S [1997] 1 I.R. 506 and indeed from the decision of Kinlen J. in De Rossa v. Independent Newspapers Limited [1998] 2 ILRM 293. Rather than reading the latter judgment as one which followed The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412, it was suggested that, on the contrary, the ultimate conclusion of the trial judge to dispose of the matter without a jury, was reflective of his general view that contempt was within the province of judges only.
The cases of The People v. O’Shea [1982] I.R. 384 and Tormey v. Ireland [1985] I.R. 289 were also relied upon.

On the question of intention, it was submitted that the BBC must have clearly intended what it did and that the natural and probable consequences of its actions must be assigned to it. In any event intention is irrelevant and must be distinguished from motive which is the real issue. In Re: McArthur [1983] I.L.R.M. 355 it was decided that prejudice was not essential and Kelly v. O’Neill should not be read as any more than raising the possibility that in certain undefined and non-described circumstances mens rea may be arguable. Indeed, on the question of contempt or no contempt, strict liability applies where intention is not material.
Counsel also argued that it was not possible for the court, when dealing with this matter as a preliminary application, to determine whether or not there were any relevant factual issues in the substantive proceedings. Such a finding could only be made by the trial judge when all of the facts had been opened to him. What Mr. Kealey has averred to in his affidavits cannot, in this context, be decisive, as no particulars have been raised. Even, however, at such remove, on a closer examination of his evidence it is clear that what is being raised is motive and not intention.
54. Finally, it is claimed that the English cases cited have no relevance because of
the statutory foundation of contempt in that country and that neither Articles 6 nor 10 of the European Convention on Human Rights are superior to the requirement of upholding judicial integrity.

As the two questions posed in the preliminary issue are inextricably linked it is convenient to deal with both of them together.

Decision
55. The following are the relevant articles of the Constitution of Ireland:-
Article 30.3 of the Constitution reads as follows:

“(3) All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose.”
Article 34.1 provides:-
“(1) Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”
Article 35.2 is in these terms:
” 2 All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.”
Article 38, ss 1, 2, and 5 are in the following terms:-
“(1). No person shall be tried on any criminal charge save in due course of law.
(2) Minor offences may be tried by courts of summary jurisdiction.
(5) Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury.”
Article 50.1 provides:-
“(1) Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.”
Article 64 of the Constitution of the Irish Free State (Saorstát Éireann) 1922 was in similar terms to Article 34 of the Constitution of Ireland, as well as the 1st part of Article 69 being identical to Article 35.2. Article 72 of the Free State Constitution is in effect indistinguishable from Article 38.5 of the 1937 one, although it does not contain the phrase “save in due course of law” which appears in Article 38.1. In addition Article 73 of the 1922 Constitution continued the laws in force in the Irish Free State, at the relevant date, subject only to the Constitution and to the extent to which they were not inconsistent therewith.

Whether the broadcast of the 9th October, 2000, and the related articles placed by the respondent on its website on 13th October, 2000, raise questions of fact has not of course as yet been determined. Neither has the issue of contempt or no contempt. These must await a full hearing whether by a court alone or by a court with a jury. However it has never been denied that the “allegations” of contempt so made are serious ones and are not of a type which could in any way be described as frivolous or vexatious. Equally, the defence argument of jury or no jury is also an important point. Consequently, although I can appreciate the validity of the applicant’s argument that it is only on the substantive hearing that the trial judge can determine whether or not there are live issues of fact, nevertheless I feel, that for the purposes of this decision, I ought to proceed on the assumption that there exist such issues of fact. Otherwise a determination on the central point would not be required.
In addition, as part of this approach, I am not satisfied that the present state of Irish law requires the establishment of mens rea as a necessary ingredient of this offence. Though it is mentioned by Keane J. in his judgment in Kelly v. O’Neill [2000] 1 I.L.R.M. at p. 538, he does so in terms which seem clearly to acknowledge that the current position imposes no such demand on a moving party. Consequently it seems to me that this passage of his judgment raises for future debate, but does not purport to incorporate into domestic law this alleged requirement. Denham J. also referred to it but did so purely in passing; on the other hand Budd J. in S. v.S. [1997] 1 I.R. 506 came to the conclusion that it was an essential requirement. In any event this precise point was not central to the issues before me and the submissions were accordingly limited. Lest, however, I should be incorrect in this conclusion, it seems to me that the question of intent is in this context a question of fact, and though I appreciate in general the unique role of a jury in this regard, nevertheless by reason of my final conclusion on the main point, I feel that the question of mens rea can be treated in the same way as any other disputed question of fact. Accordingly I propose to proceed on that basis.

Contempt of court has many classifications. One major distinction is between civil and criminal contempt. The former is generally of interest only to the individual parties to civil litigation and is one in respect of which the courts will essentially only move at the instigation of the person for whose the benefit the order was made. Criminal contempt on the other hand is not so confined. It has many species. It may consist of conduct in the face of the court which is obstructive or prejudicial to the course of justice. It may have its focus on pending proceedings which may be interfered with or prejudiced by what is said or done. A third example might be what is described as “scandalising the court”, which would occur where the matters complained of were calculated to endanger public confidence and thereby to obstruct and interfere with the administration of justice. See O’Higgins C.J. in the State (D.P.P.) v. Walsh [1981] I.R. 412 at p. 421 and Keane J. in Kelly v. O’Neill [2001] 1 I.L.R.M. 507 at p. 531. Whatever form it may take, “criminal contempt is a common law misdemeanour and, as such, is punishable by both imprisonment and fined at discretion, that is to say without statutory limit, its object is punitive” (see O’Dalaigh C.J. in Keegan v. de Búrca [1973] I.R. 223 at p. 227.)
In this case it is evidently clear that the contempt complained of is not civil in nature and likewise that it was not committed in facia curiae. In addition, though obviously criminal, it could not accurately be described as being one of “scandalising the court”, as its subject matter was a pending case. Whilst a precise classification is not required, it seems to me that it is of a type accurately described by Lord Reid in Attorney General v. Times Newspaper Limited [1974] A.C. 273 at p. 300, in a passage which is quoted by Denham J. in Kelly v. O’Neill [2000] 1 ILRM 507 at p. 519. In essence, it is in the applicant’s case, of a type which sought to and did influence public opinion, which prejudged the issue of guilt and which sought to convey that pre-judgment to the general public. Moreover it also sought to prejudice the minds of such person by the contents of the publication. As Lord Reid said, if by way of newspaper, (and I add television), a pre-judgment is conveyed then the consequences will be far reaching and “unpopular people and unpopular causes will fair very badly”. Accordingly the material complained of in this motion is potentially capable of constituting a contempt of court, though of course I so say only and strictly for the purposes of this judgment. In addition, in my view, the fact that no attempt was made by the applicant to prohibit his trial has no bearing on this application and neither has the absence of any allegation that the members of the court concerned were, as a matter of fact, influenced by the publications.

58 At common law there was no doubt but that a court of record had power to summarily deal with contempt allegations, even those properly described as criminal in nature and whether committed in facia curiae or otherwise. It could exercise this jurisdiction without the involvement of a jury. In R. v. Almon, (1765) Wilm. 243, a decision adopted and approved by Palles C.B. in Attorney General v. Kissane (1893) 32 L.R. Ir 220, it was said that this power was required so as to enable a court to vindicate its own authority and was a necessary incident to every court of justice. Its foundation stood upon the same immemorial usage as supported the whole fabric of the common law, and it was as ancient as any other part of that law. Whilst a trial by jury was one part of that system, “the punishing contempts of court by attachment is another: we must not confound the modes of proceeding, and try contempts by jury, and murders by attachment. We must give that energy to each which the constitution prescribes.” (See p. 271 of the report.)
Lord Blackburn’s judgment in Skipworth’s case, L.R. 9 Q.B. 230, at p. 232, is to the same effect. Both of these cases are referred to with approval in Attorney General v. O’Kelly [1928] I.R. 308.

Mr. Sean T. O’Kelly was the subject matter of a motion for attachment for contempt of court by reason of an article published in “The Nation” of the 18th February, 1928. In the piece which was published, serious allegations were made about a judge of the Central Criminal Court of the Irish Free State, on his handling of a jury which had failed to agree on an issue submitted to them in a then current trial. On behalf of the respondent a preliminary point was raised. It is worthy to recite from the judgment what counsel on behalf of Mr. O’Kelly said, as it strikingly reflects one of the central submissions made in this case. At p. 315 of the report it is stated:
“Counsel on behalf of Mr. O’Kelly contend:
(1) that the contempt of court alleged in this case is a criminal offence;
(2) that the notice of motion is a criminal charge; and,
(3) that the hearing of the motion by this court is a trial of a criminal charge; and,
(4) that Art. 72 of the Constitution prohibits such a trial without a jury.”
In response whilst conceding that the matter was a criminal offence the Attorney General nevertheless submitted that the proceedings were not “the trial of a criminal charge” within Article 72. O’Sullivan P., having considered Article 64 of the then Constitution and Article 73, which, subject to the Constitution and to any inconsistency therewith, continued in force the laws of the Irish Free State at the time of the establishment, came to the conclusion that:

“(But), reading Articles 72 and 73 in conjunction with Article 64 I am of opinion that Article 72 was not intended to and does not, affect the jurisdiction of the High Court to deal summarily with cases of contempt and that its operation is confined to trials of criminal charges by ordinary criminal process. I am, therefore, of opinion that the preliminary objection raised to the jurisdiction of this court fails.”
Accordingly, in the opinion of the learned judge the contempt charge was not captured by Article 72, which in its materiality is essentially the same as Article 38.5 of the 1937 Constitution.

Whilst Meredith J. dissented on certain grounds, nevertheless, at p. 320 of the report, he expressed the view, which is deserving of note, that the Court’s jurisdiction in a contempt matter “is, in fact, as wide as the requirements of the case – the protection of the courts in the administration of justice. It need not be further or otherwise defined….”

Accordingly in the Court’s opinion Article 72 of the Constitution did not interfere with the pre-existing common law right of the High Court to deal summarily, that is without a jury, with a contempt of court which clearly was criminal in nature.

In Re: Earle [1938] I.R. 485 the Supreme Court endorsed the decision of the divisional court in O’Kelly. Though the contempt alleged in that case was a failure to comply with the terms of an order of habeas corpus, nevertheless both Fitzgibbon J. and Murnaghan J. (though differing on some matters) supported in quite strong terms the O’Kelly position, namely that Article 72 of the Constitution did not require a jury trial when dealing with contempt applications.
In 1947 the High Court again considered the same question, but this time under the new Constitution. Though the High Court in Attorney General v. Connolly [1947] I.R. 213 was protecting an inferior court, namely the Special Criminal Court, this point of distinction was not relevant. In the judgment of Gavan Duffy P., the Court, which included Maguire and Davitt JJ., followed both the reasoning and conclusion arrived at in O’Kelly. It did so having drawn express attention to the more comprehensive rights contained in Article 38 over those conferred by Article 72 of the 1922 Constitution. (See para. 55 supra). It held, therefore, that notwithstanding Article 38.5 of the Constitution there was no right to a jury trial in respect of the contempt before that Court, which contempt, like that in O’Kelly, could not be described as a minor one.
In Re: Haughey [1971] I.R. 217 and in Keegan v. de Burca [1973] I.R. 323 the Supreme Court, in both cases expressly, left open the question as to whether O’Kelly and Connolly were correctly decided.

The matter once again came before the High Court in 1977. In State Commins v. McRann [1977] I.R. 78 the defendant raised Article 38.5 of the Constitution as conferring on him a right to a jury trial in respect of a contempt which was non-minor in nature. Though the contempt alleged in that case arose out of an order of the Circuit Court made in a civil action, Finlay P., as he then was, expressed the view that the principles applying to the summary disposal of criminal contempt applied equally to civil contempt. Having surveyed the relevant provisions in the 1922 Constitution and the cases above mentioned, including the decision of Parke J. in McNamoe v. Leonard, High Court, Unreported, 9th December, 1975, the learned judge concluded that the views expressed in O’Kelly, In Re: Earle and Connolly were “extremely persuasive precedents”. But in addition, he added a further reason of considerable significance; at p. 88 of the report he said:
“…but I am further satisfied that there is an additional reason why it would be quite incorrect to interpret Article 38 of the Constitution of 1937 as depriving the courts of the long established jurisdiction (which they undoubtedly had) to punish in a summary manner contempt of court whether the contempt was committed in the face of or outside of court, and whether it is classified as criminal or as civil contempt.
The rights of a person to be tried on a criminal charge, as provided by Article 38, s. 5 of the Constitution of 1937, are guaranteed in terms which are, for all practical purposes, identical to the terms of Article 30 of the Constitution. If the contention made on behalf of the prosecutor were correct then, under present state of the law it seems to me that, in the event of a court’s order having been disobeyed or in the event of a court suffering contempt in its face (for in this context, I cannot distinguish between civil and criminal contempt nor between contempt in the face of and outside of court) such court must rely on the intervention of the Attorney General (or of the Director of Public Prosecutions) to present an indictment and try before a jury the person who is alleged to have been guilty of contempt. If that interpretation of the provisions of Article 30 and Article 38 of the Constitution is correct, then it seems to me that to construe Article 38 as depriving the courts of their right to enforce their own orders is to deny the fundamental tripartite divisions of powers which underlies the whole Constitution. In my opinion it is not fanciful to suppose that a situation could arise in which the court was obliged to restrain directly the commission of an Act by the executive, or by an agent of the executive, so as to preserve the right of an individual. If the contention made on behalf of the prosecutor were valid, then by non-activity on the part of a servant of the executive (the Attorney General or the Director of Public Prosecutions) the executive could paralyse the capacity of the courts to enforce their will. Such a consequence would not only be grave but, in my view, would be a vital infringement of the independence of the courts as guaranteed by the fundamental principle of the tripartite division of power.
For these reasons I conclude that the inherent jurisdiction of the courts to deal summarily with contempt, at least as enjoyed by courts of record, has not been in any way altered or diminished by the provisions of the Constitution of Ireland, and that Article 38 of the Constituted must be interpreted as qualified by the provisions of Article 34. Therefore, I reject the first submission made on behalf of the prosecutor.”
Accordingly, up to the decision in Walsh, there was a variety of forceful authority, from several courts under both Constitutions, against the proposition that an alleged contemnor like the BBC was entitled to a trial by jury when facing a criminal contempt charge of a non-minor nature. In fact there was not a single Irish authority in support of such a proposition.

Arising out of the trial of Marie and Noel Murray for the capital murder of a member of An Garda Síochána, the Irish Times on 11th June, 1976, carried, as a news item, a piece attributable to its political correspondent in which it was stated that the defendants, who were members of an association, had claimed that the sentences imposed by the Special Criminal Court were reprehensible as “that 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.” Contempt proceedings were taken by the Director of Public Prosecutions against inter alia the respondent members. The form of contempt in question was not one committed in the face of the court nor one which might have interfered with or prejudiced pending proceedings. Rather it was described as of the type which “scandalised the court”. In his judgment in the case of State (D.P.P.) v. Walsh [1981] I.R. 412 O’Higgins C.J., when dealing with a submission seeking a jury trial, expressed the view that whilst the decisions in O’Kelly and in Connolly may be said to have concluded the issue, nevertheless since the point was a matter of such importance he felt that the court ought to re-examine the situation afresh. The learned Chief Justice noted the concessions made on behalf of the respondents that summary jurisdiction existed in respect of contempts committed in the face of the court and also in respect of constructive contempts which might endanger the fair hearing of a pending trial. These concessions, which in fact extended to all forms of contempt save for one, were offered on the basis that time did not permit a trial by jury in such instances. However, in respect of the contempt alleged against them, namely that of scandalising the court, no such pressing requirements existed and accordingly a jury trial was required.
This submission was rejected by the Chief Justice. In his view, if a power to act summarily in cases of criminal contempt existed, it must exist for and extend to all forms of such contempt. Having looked at Article 38.5 of the Constitution and having given a literal interpretation to it, the learned Chief Justice came to the conclusion that such an approach would result in Article 38.5 applying to some criminal contempts but not to others. If that was correct it would mean that under Article 30.3 of the Constitution every non-minor contempt would require the intervention of the Attorney General and now the Director of Public Prosecutions. It would mean that no court could act on its own motion. He felt that such a result stemmed from an erroneous construction of the general tripartite scheme of the Constitution and in particular from the role given to judges and justice by Article 34 thereof.
At page 426 of the report the Chief Justice continued:
“These are the courts in which justice, or the judicial power, is required by the Constitution to be administered by judges duly appointed thereunder. That it is essential to the administration of justice in these courts that the proceedings be conducted fairly cannot be doubted. Neither can it be doubted that it is equally essential that the courts authority be effective and that it be both recognised and respected. If such proceedings are obstructed or interfered with, witnesses are frightened, threatened or subordinate, if a pending hearing is prejudiced by unfair comment or publicity, or if a court is held up to public ridicule and contempt by baseless allegations of impropriety and corruption, then in no such circumstances could justice be administered both fairly and effectively.
But under the Constitution it is the solemn duty of judges to see that justice is administered in the course of justice. Surely the imposition of this duty carries with it both the power and the corresponding duty to act in protection of justice, if its fair or effective administration is in danger or threatened. In my view the judicial power of Government (which, in accordance with Article 6 of the Constitution, is exercisable only by or on the authority of the courts as the organ of State established by the Constitution for that purpose), is sufficiently extensive to authorise the courts to take any action that is necessary for the due administration of justice. Such action must include, where necessary, the power to try summarily those accused of interfering in any manner with the administration of justice. Such an accusation comprises in my view all forms of criminal contempt in the court.”
The reason for this constitutional jurisdiction was, according to the Chief Justice, the protection of justice whether in respect of litigation at hearing or pending or indeed concluded. Since the exercise of this jurisdiction is primarily directed at discouraging the repetition of and to prevent the continuance of such conduct it was in the view of the learned Chief Justice completely irrelevant whether or not time permitted a trial by jury.

Finally, the learned judge also made it clear that whilst attachment proceedings for contempt can be described as criminal in nature, these do not fall within the ambit of Article 38.5 of the Constitution which covers offences “against the body of substantive criminal law which exists in this and every other country and which requires for its enforcement the action of the executive.” See p. 429 of the report. He was also of the view that since criminal contempt is purely a matter for judicial control, it does not and ought not depend for its enforcement on any other organ of Government. Whilst it may be doubted that the Director of Public Prosecutions would ever decline an invitation issued by the court to move in respect of a contempt matter, nonetheless the court had no power to compel him to so do. In all of these circumstances the Chief Justice concluded that Article 38.5 did not apply to contempt.
Henchy J. gave the majority judgment of the court, with some of the relevant passages from his judgment being quoted at paragraph 42 above:
“When the major offence charged is contempt of court, and if there are live and real issues of fact (such as whether the accused committed the act alleged against him, or whether it was done with his approval, etc.) the accused has a prima facie right under Article 38.5 to trial with a jury, thus entitling him to have those issues of fact committed to a jury for their determination. As at present advised, I do not find any other provision of the Constitution which would rebut that presumption. It would not seem to be compatible with the constitutional requirement of fundamental fairness of procedures, or with the equality before the law guaranteed by Article 40.1 if contempt of court, which carries with it the risk of a fixed but unlimited term of imprisonment of an unlimited fine, were the only major offence which is exempt from the requirement of a determination by a jury of the controverted facts.
But where the facts are admitted, or have been determined by a jury, or have been duly and properly decided by the judge not to be in issue, I consider that the question whether those facts amount to the contempt of court charged must be deemed to be a question of law to be decided by the judge, provided the judge is vested with the original jurisdiction necessary to try such a contempt summarily. This appears to me to be a necessary corollary of certain constitutional postulates, especially the guarantee in Article 35.2 that all judges shall be independent in the exercise of their judicial functions and subject only to the Constitution and the law, and the implied but pervasive requirement that fundamental fairness of procedures shall be observed. The later requirement could not be observed if the question of whether a particular piece of conduct amounted to contempt of court had to be resolved by a jury.”
Finally Henchy J. also felt that “to the extent that such mode of trial may require the co-operation of the Director of Public Prosecutions, I think that, if such cooperation were not forthcoming, the inherent powers of the court would comprehend the capacity to compel such cooperation”. (At p. 441).

In summary, the learned judge said that where there were real and live issues of fact to be determined then an accused person was prima facie entitled to a jury, for that purpose, under Article 38.5 of the Constitution. However, where there were no such facts, or where such facts had been admitted or determined by a jury, then the question whether such facts amounted to a contempt of court was one of law and therefore one solely for the trial judge. This resulted from “certain constitutional postulates”, especially the independence of the judiciary under Article 35.2 of the Constitution, as well as the requirement to ensure fundamental fairness of procedures. If the guilt or innocence of a respondent was determined otherwise, then a jury, by a perverse verdict of not guilty, “could set at nought the constitutional guarantee that basic fairness of procedure will be observed, and could, at the same time undermine the independence of the judiciary” (p. 440). In addition Henchy J. said that “the ultimate responsibility for the setting, and the application, of the standards necessary for the due administration of justice must rest with the judges” (p. 440). Moreover, he was of the view that if a jury trial was permissible then that mode of trying the factual issues should be available to all major contempt charges. Finally he offered the opinion that “to the extent that such mode of trial may require the co-operation of the Director of Public Prosecutions, I think that, if such co-operation were not forthcoming, the inherent powers of the courts would comprehend the capacity to compel such co-operation” (p. 441).
Subsequent to the decision in Walsh there were two further cases which were also opened to the court. These are referred to above respectively at paras. 43 and 56 and are De Rossa v. Independent Newspapers Limited [1998] 2 ILRM 293 and Kelly v. O’Neill [2000] 1 ILRM 507.
In my respectful view the decision in De Rossa is not clearly determinative in either direction, in that it seems on the one hand that Kinlen J. felt himself bound by the majority view in Walsh, and yet on the other hand decided against a jury. Perhaps this was perfectly correct and logically arrived at, on the basis that since mens rea was in his view irrelevant there were no other factual issues in the case. Whatever be the situation, I do not quite believe that De Rossa is truly decisive on the issue.

In Kelly neither the question of locus standi nor a trial with jury arose. Whilst the decision is important for several reasons, it is not strictly on point for the purposes of this case.

Neither are any of the English cases, given the statutory source of contempt in the United Kingdom since at least 1981; though it is interesting to note that notwithstanding a potential term of imprisonment of at least 2 years, there is no right to a jury trial in that Country. See par. 3.56 of Arlidge, Eady & Smith on Contempt, 2nd ed.

In my view the Walsh case is the pivotal decision in this jurisdiction as it sets out the conflicting judicial unease between granting a person, charged with a non- minor contempt, a trial with a jury as distinct from preserving the long established position of the court having a right to summarily dispose of such matters. Although the respective conclusions of the majority and minority, differed in that regard, it is however possible to identify a good deal of common ground between the views of Henchy J. and O’Higgins C.J. No right to a jury trial arises unless the contempt is criminal in nature, is non-minor and there are real and live issues of fact which require resolution. If these elements are not present in any given application, then there can be no question of the alleged contemnor being granted a right to a trial with a jury. Moreover both the learned judges agreed that no distinction should be made between the different types of contempt for this purpose. The right, if it exists, is either available to all classifications of contempt or not at all, with the Chief Justice expressly rejecting a submission that expediency or urgency would justify any such distinction.
In addition and to the same end, both heavily relied on the importance of upholding the administration of justice and on the fundamental position of judicial independence. The crucial point of distinction, it seems to me, was the belief of the majority that Article 38.5 applied, though in a modified way, whereas the opposing view was that contempt was outside the substantive body of criminal law and accordingly that this constitutional provision was inapplicable.

In Walsh [1981] I.R. 412 the views of Henchy J. were undoubtedly obiter as no such real or live issues of fact existed in that case. To that extent the majority’s opinion does not attract the principle of stare decisis but it is of course of significant persuasive authority. In my view it is clear from that decision that if the right is available its source must be founded in Article 38.5 of the Constitution. No other basis in domestic law has been identified as potentially applying. Leaving aside the argument advanced by the Law Reform Commission, which respectfully questions the correctness of Henchy J.’s position that the decision in O’Kelly could not stand with the judgment in The State (Browne) v. Feran [1967] I.R. 147 (see p. 206 of the Commission’s Report on Contempt of Court), it seems to me that by reason of the bifurcated role envisaged for the jury in the majority view, that role is not fully reflective of what Article 38.5 is understood to convey. From the decision of the learned judge it is clear that a jury in a contempt matter would have a limited and restricted part to play. Their decision would be confined to adjudicating on disputed facts. Save for that they would have no input into the verdict which the allegation would call for. That would be exclusively a matter for the judge, it being a question of law. This position does not accord with the operational process of that Article in the general body of criminal law in indictable matters. In all such non-minor cases the judge charges the jury on the relevant law which it must accept from him, but thereafter, applying the directions given, the jury is solely responsible for the decision of guilt or innocence. There is thus an immediate distinction of significant importance between the mechanics of any jury trial in a contempt matter as distinct from such a trial within the province of the general criminal law: See the criticism, at para. 6.5.405 of Kelly on the Constitution 4th Ed, of this suggested role split between judge and jury.
The reasons why Henchy J. felt it necessary to restrict the function of a jury in the manner outlined are reasons which respectfully I fully accept. Public confidence could be permanently undermined if by a perverse but unreviewable verdict the stigma of a contempt could be improperly validated or left wrongly unpunished. Nevertheless it results in an unsatisfactory situation, the creation of which seems to have been essential in order to uphold the administration of justice under Article 34.1 of the Constitution and the independence of the judicial arm of government under Article 35.2. In my respectful opinion I take the view that when the relevant provisions of the Constitution are given an integrated construction against the common law background on contempt of court, this strained co-existence is not in fact necessary.
In my judgment the decision in O’Kelly is a clear cut authority for the proposition that Article 72 of the Free State Constitution did not require jury trials in the type of circumstances presently under discussion, and that the pre-existing law was carried forward into the Free State, by virtue of Article 73. That position was undoubtedly the declared opinion of the judiciary in 1937. As Article 38.5 of the Constitution of Ireland is essentially the same as Article 72 of the 1922 Constitution, it seems to me that the common law position, as it existed prior to 1922 and which was continued for the life of the Free State, was likewise carried over by Article 50 into the body law of the present State. I therefore believe that given the similarity between the relevant Articles of both Constitutions, the power vested in a court of record prior to 1922 and 1937 has survived and that Article 38.5 has not impressed upon it the requirement of a jury trial. This opinion of course is fully in accordance with the judgment in Connolly [1947] I.R. 21, a case determined under the Constitution of Ireland.
It is, in my view, of the first importance that a court of and by itself can vindicate its own authority and that the competence to so do is inherent from its very creation and from the purpose of its existence. It would be seriously impotent if it was otherwise. It is of crucial significance that its integrity be maintained and that its dignity, from both a principled and operational point of view, is not undermined by groundless words, actions or deeds. Under the separation of powers within our Constitution, courts are not only entrusted but are mandated to deliver justice and for that purpose judges have a constitutional safeguard of independence. Their capacity to achieve this would be seriously inhibited if they could not master their own destiny. Moreover since judges have the responsibility of setting not simply minimum, but due and proper standards for the effective administration of justice (see p. 440 of Walsh) it appears to me that as a necessary corollary they must likewise have the power to impose those standards against all. Public respect and public confidence demands and would not accept anything less. I am therefore of the opinion that the reasoning of the courts in O’Kelly and Connolly accurately reflect what the true position is in this jurisdiction with regard to contempt.
In addition I respectfully concur with the entirety of the views expressed by O’Higgins C.J. in the State (D.P.P.) v. Walsh [1981] I.R. 412. It seems to me that the declaration of independence attaching to the judicial function as outlined in Article 35.2 of the Constitution could not be fully honoured and implemented if, in the face of unacceptable conduct, the court had to cede any part of its self-protecting obligation to a jury. In addition it must have and be seen to have power to vindicate its own authority and to protect the public face of justice.
There is another reason why I have come to this conclusion. It will be recalled that under Article 30.3 of the Constitution the D.P.P. is required to prosecute “all crimes and offences” in any court established under Article 34, save for a court of summary jurisdiction. As The State (Ennis) v. Farrell [1966] I.R. 107 has decided, the role of the common informer has survived this Article and accordingly even with indictable offences such a person can initiate by way of information or complaint a summons and can continue in his role as prosecutor up to the time at which the District Court makes a decision on a return for trial. Thereafter the D.P.P. becomes dominus litis with the common informer having no further part to play. The authority of such person therefore, though valuable, is limited. The result accordingly would be that if Article 38.5 applied to a non-minor contempt application, the only moving party would be the D.P.P. This could create, possibly even to the exclusion of the court itself, a position which would involve the utmost paralysis of its workings.
This resulting dilemma was one of the reasons why Finlay P. made the decision which he did in The State (Commins) v. McRann [1977] I.R. 78. In a passage quoted at par. 62 the then President pointed out that if Article 30.3 applied and if for whatever reason the D.P.P. should not act, then the courts’ competence to enforce their own will could be seriously incapacitated.
This point was also addressed by O’Higgins C.J. in The State (D.P.P.) v. Walsh where at p. 425 of the report he rhetorically asked how could the courts properly administer and safeguard justice if the moving of a contempt matter rested with the D.P.P., who in such a context must be regarded as acting for the executive. Later in his decision he referred back to this situation and offered the view that in all probability the D.P.P. would not decline to prosecute if he was requested by a court to so do. However, the Chief Justice felt that under the Constitution there was no power to compel the D.P.P. to act if he decided against it. Henchy J. did not feel that the courts were so handicapped, believing as he did, that its inherent powers were such as could compel such co-operation in the face of objection.
The instant case is as close an example to the type of situation just outlined as one could get, falling short of the court making a direct request to the D.P.P. to prosecute. It will be recalled that on the instructions of the Special Criminal Court the Director was asked whether in the event of the motion proceeding before the High Court, he would take over the prosecution of it or alternatively institute fresh proceedings. He declined to do either. As the point has not been debated before me, I could not offer a concluded view on the courts’ capacity to compel him to move, but at least superficially I cannot readily identify any source which would justify any form of mandatory order. As this case therefore demonstrates, the allegation of contempt made could not proceed if he was solely in charge of its movement. For several reasons this would create quite an unacceptable position. He is as previously noted the prosecuting agent and thus a party to the criminal proceedings. He, if he so wished could move the motion but if on the question of standing his submissions were correct, Mr. Murphy could not. Whilst this court should not speculate on the reasons for the D.P.P.’s refusal, it cannot I feel, have been solely based on a view that either on the law or the merits the application was bound to fail. There are, at least prima facie, serious matters which justify access to the courts. The courts themselves cannot be expected to act as the initiating mover in all such cases. Despite the enormity of the background atrocity of the bombing, the public at large as well as the applicant have a vested and personal interest in the purity of the administration of justice. It is therefore in my view of fundamental importance to the integrity and preservation of justice, to the upholding of judicial independence and to the administration of constitutional fairness and fair procedures, that the law of contempt should, in the context under discussion, remain in the same state today as it was prior to 1922.
The conclusion therefore is that the law of contempt without distinction, is not, when dealing with non-minor matters, a criminal offence within the meaning of Article 38.5 of the Constitution and accordingly a person facing such an allegation is not entitled to a jury trial. It is not part of the substantive body of criminal law to which that Article applies. Rather it stands in a category of its own and can be considered sui generis. Since it is inherently intertwined with the administration of justice, it should I feel be considered as ancillary to Article 34 of the Constitution.
This view does not in my opinion conflict in any way with Article 40.6.1 of the Constitution or with Article 10 of the European Convention on Human Rights. Contempt being a criminal matter means that any respondent must be accorded due process and fairness of procedure. Provided his right to a fair trial is preserved, which in my view is fully achievable even without a jury, then any relevant constitutional provision as well as Article 6 of the Convention will be satisfied.

The above reasoning also applies to the locus standi point. In addition, however, it is interesting to note that the decision in MacArthur raised but left open this very issue. And yet more than 20 years later this matter does not appear to have been further litigated. Instead there have been several cases of private persons moving the court in this regard. P.S.S. .v. J.A.S. and Independent Newspapers (Irl) Ltd. and Others, Unreported, High Court, 19th May, 1995, De Rossa and Kelly v. O’Neill [2000] 1 ILRM 507 are but some examples. Quite apart from what appears to have been the accepted practice, it seems to follow from the above that the D.P.P. should not be the only person with power to initiate such an application and that Article 30.3 of the Constitution should not be so read. Whilst O’Higgins C.J. may be correct in that no court invitation to prosecute would be declined, for my part I would prefer not to place the D.P.P. in that position.
Finally, could I say that some criticism has been raised about “judicial independence from the executive” being one of the grounds relied upon to justify the conclusions above reached. See generally O’Donnell “Some Reflections on the Law of Contempt” (2002) 2 JSIJ 88. It is of course totally true to suggest that for the implementation of its orders the courts depend on the executive arm of government. It is not independence in that sense I mean when I refer to this matter above; as if should that cease the essence of our democratic institutions would likewise cease. Rather it is the courts’ ability, without necessary dependence on others, to exercise to a conclusion the powers vested in them under the laws and under the Constitution.
For the above reasons I would hold that the applicant has standing and the respondent is not entitled to a jury.
Approved: McKechnie J.

DPP v Independent Newspapers

 

[2008] I.E.S.C. 8

JUDGMENT of Mr. Justice Hardiman delivered the 5th day of March, 2008.
Background.
On the 1st December, 2004, a man called Patrick O’Dwyer appeared before the District Court in Ennis, Co. Clare, having been charged with the murder of Marguerite O’Dwyer, his sister, on the 29th November, 2004.

On the 2nd December, 2004, a number of articles were published in a newspaper published by the first-named respondent, edited by the second-named respondent and carrying the by-line of the third named respondent. Shortly afterwards, the Director of Public Prosecutions instituted contempt proceedings against the three respondents saying that the material published on the 2nd December, 2004:

“… was calculated to interfere with the course of justice and the trial process then in being between the applicant and Patrick O’Dwyer and to prejudice the fair trial of the said Patrick O’Dwyer. Furthermore, the said publications took place subsequent to the criminal charge preferred against the accused and to his remand in custody and in breach of the sub judice rule and contained details in respect of the remand hearing before Ennis District Court on the 1st December, 2004 which further amounted to contempt of court.”
The above quotation is taken from the Notice of Motion issued by the applicant on the 1st February, 2005. In this Notice of Motion he seeks, at paragraph 1:
“An order directing the attachment and committal and/or sequestration of the assets of the respondents herein, as the case may be, and each of them for contempt of court in respect of material published in the Evening Herald newspaper on the 2nd day of December, 2004, which material is exhibited and described with particularity in the affidavit sworn herein on the 1st day of February, 2005, by John Forde on behalf of the applicant.”
It will be noted, accordingly, that the first relief sought by the applicant in the contempt proceedings was committal to prison of the individual defendants, because they had committed a contempt of court. Such a deprivation of liberty would obviously be penal in nature. The other relief sought, presumably against the corporate respondent, was sequestration of property. This is undoubtedly a penal deprivation of assets, by reason of the fact that the company must have been, before any sequestration is ordered or takes place, found guilty of contempt of court.
The Director’s application for committal and sequestration was heard before the High Court (Dunne J.) in May, 2005. On the 3rd May of that year a written judgment was delivered by the learned High Court judge dismissing the Director’s application and acceding to an application made by the respondents for a non-suit or “direction”, at the end of the prosecution case. The order of the High Court, perfected on the 12th May, 2005, records that:

“The Court doth refuse the relief sought.”
By a document dated the 14th June, 2005, the appellant, the Director of Public Prosecutions, has purported to appeal this decision of the High Court to this court. Some time after this notice was lodged the respondents decided that they would take the point that, in the circumstances outlined above, no appeal lies from the decision of the High Court with which the Director is aggrieved. When the appeal came into the list for hearing this Court directed that that issue be dealt with first.
Constitutional and statutory provisions.
By virtue of Article 34.4.3 of the Constitution:

“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
The main relevant “exception… prescribed by law” is contained in s.11 of the Criminal Procedure Act, 1993 which provides as follows:
“(1) The right of appeal to the Supreme Court, other than an appeal under s.34 of the Criminal Procedure Act, 1967, from a decision of the Central Criminal Court is hereby abolished.”
At the hearing before this Court the Director conceded that the effect of this Section was that if the High Court which gave the decision in this case, against which the Director wishes to appeal, can be regarded as the Central Criminal Court, then no appeal lies.
On this topic, 11 of the Courts (Supplemental Provisions) Act, 1961 provides as follows:

“(1) The High Court exercising the Criminal jurisdiction with which it is invested shall be known as An Phríomh-Chúirt Choiriúil (The Central Criminal Court) and is in this Act referred to as the Central Criminal Court.
(2)(a) The jurisdiction exercisable by the Central Criminal Court shall be exercised by a judge or judges of the High Court (including the President of the High Court) nominated from time to time by the President of the High Court.

(b) The jurisdiction of the Court shall be exercisable by each judge for the time being so nominated save that, where the President of the High Court directs that two or more such judges shall sit together for the purpose of a particular case, the jurisdiction of the Court for that purpose shall be exercised by those judges sitting together.

(c) Every person lawfully brought before the Central Criminal Court may be indicted before and tried and sentenced by that Court, wherever it may be sitting, in like manner and in all respects as if the crime with which such person is charged had been committed in the County or County Borough in which the said court is sitting.

(4) The references in any other enactment (whether passed before or after this Act) to the Central Criminal Court shall be construed as references to the High Court exercising the criminal jurisdiction with which it is invested.”

Nature of the contempt proceedings.
There is clear authority, both recent and remote, for the proposition that contempt proceedings of the kind instituted by the Director in the present case are criminal proceedings and are not proceedings of any other nature, or proceedings which are sui generis.
In The State (DPP) v. Walsh [1981] IR 412, the Director had likewise sought orders of attachment and committal or sequestration against the respondents. The Supreme Court held that, on that account, the respondents were charged with the commission of criminal offences and that the High Court had jurisdiction to try the respondents summarily, without a jury, on the charges of contempt of court made by the prosecutor. It was further held that the respondents were charged with major, and not minor, offences so that their trial on those charges were governed prima facie by the requirements of Article 38.5 of the Constitution but that nevertheless the respondents were not entitled to a trial with a jury since there were no disputed issues of fact requiring the services of a jury for their determination.

At page 429 of the report O’Higgins C.J. said expressly:

“These proceedings are attachment proceedings for contempt of court. I think it is correct to describe such proceedings as being in reality a charge of a criminal offence.”
Apart from this, the respondents pointed out at the hearing in this Court that in his written submissions in the High Court in this present case, the Director stated that what the defendants were charged with was “a common law offence which is punishable with such amount of fine or imprisonment as the Court may determine.” Accordingly the defendants, it would appear, were at risk of an unlimited fine or of imprisonment for an unlimited duration.
The decision of the former High Court in Attorney General v. O’Kelly [1928] IR 308 refers to a decision of the former Courts of Justice in Ireland, prior to 1924, namely A.G. v. Kissane, 32 LR IR 220. There, no less an authority than Chief Baron Palles surveys the antiquity of the jurisdiction as well as its nature and says:

“ ‘That power’, says Wilmot C.J. ‘which the Courts in Westminster Hall have of vindicating their own authority is coeval with their foundation and institution; it is a necessary incident to every Court of Justice, whether of record or not, to fine and imprison for contempt of court, acted in the face of it.’ No-one will contend that the jurisdiction to fine and imprison is not essentially criminal.”
He proceeds:
“And the issuing of attachments by the Supreme Courts of Justice in Westminster Hall for contempts out of court stands upon the same immemorial usage as supports the whole fabric of the Common Law; it is as much the lex terrae and within the exception of Magna Charta, as the issuing of any other legal process whatsoever. I have examined very carefully to see if I could find out any vestige or trace its introduction, but can find none. It is as ancient as any other part of the Common Law; there is no priority or posteriority to be discovered about it; and therefore it cannot be said to invade the Common Law, but to act in alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society.”
It therefore appears to me:
(a) That the jurisdiction to attach, commit or sequestrate for contempt of court is criminal in nature. There is in my view no answer to the point made by Chief Baron Palles: “Now no-one will contend that the jurisdiction to fine and imprison is not essentially criminal.” The criminal standard of proof must apply.
(b) This jurisdiction is of immemorial origin and has been regarded as inherent in courts throughout the recorded history of the Common Law.

Decision and discussion.
On this hearing, it was undisputed that the original application for attachment and committal, and for sequestration, had properly been brought in the High Court and the High Court was properly seised of the application. Accordingly, it seems to me beyond argument that the High Court had jurisdiction to deal with the matter. Since the matter itself was of a criminal nature, this was a jurisdiction to deal with a criminal matter i.e. a criminal jurisdiction. This jurisdiction belonged to the High Court not by being conferred by statute at some specific time but as an inherent jurisdiction “coeval with [its] foundation and institution”. Such a jurisdiction may fairly be regarded as inherent.
Accordingly, the High Court in dealing with this application of the Directors was exercising a criminal jurisdiction vested in it since time immemorial. While doing this the High Court is to be known, by reason of s.11(1) of the Courts (Supplemental Provisions) Act, 1961, as the Central Criminal Court. Moreover, by virtue of subsection (4) of the same Section, “The references in any other enactment… to the Central Criminal Court shall be construed as references to the High Court exercising the criminal jurisdiction with which it is invested.” The Criminal Procedure Act, 1993, is such an enactment, and the High Court dealing with this application is “the Central Criminal Court” mentioned in subsection (1) of s.11 of the Act of 1993. This Section abolishes the right of appeal to the Supreme Court from a decision of the Central Criminal Court. The decision against which the Director purports to appeal is such a decision; accordingly no appeal lies.

The logic of the chain of reasoning set out above appears to me to be inescapable. But I would concede the attraction and plausibility of two of the points made on behalf of the Director. The first is that no person, and certainly no lawyer, would speak naturally of the Court in which Ms. Justice Dunne sat and disposed of the Director’s application as “The Central Criminal Court”. On the contrary, they would refer to it as the High Court. But this is a matter of familiar nomenclature only. Section 11 of the Act of 1961, quoted above, has ordained that the High Court shall be known as the Central Criminal Court when it is exercising (any part or aspect of) the criminal jurisdiction which it has. No doubt the huge bulk of that jurisdiction consists in hearing criminal trials on indictment and that activity is associated in the mind of the profession with the term “Central Criminal Court.” But that fact, the product of familiarity and of an omission to consider the statutory framework, cannot stand in the face of what I regard as the plain construction of s.11 of the Act of 1961.

So ingrained has the use of the term “Central Criminal Court” in the sense indicated above become that Henchy J. himself in The People v. O’Shea, at p.421 of the Report refers to:

“… the Central Criminal Court (which is but a description of the High Court when exercising its jurisdiction to try indictable offences).”
It would, of course have been possible so to define the Central Criminal Court in the Act of 1961 or some other enactment. But this was not done and the more inclusive definition quoted above was used instead. Secondly, no-one looking at the Act of 1993 in its context can doubt that its purpose was specifically to overrule the effect of the decision of this Court in O’Shea reported in [1982] IR. O’Shea’s case was originally a trial on indictment and specifically (in this Court) concerned the State’s successful assertion of a right to appeal from a directed verdict of not guilty. It may well be that the intention of the legislature in 1993 would have been fully achieved by providing simply that there was to be no appeal against a directed verdict of acquittal in the Central Criminal Court. But this, too, was not done, for whatever reason, and instead the broader form of words with which we are concerned here found favour with the legislature.
Other considerations.
Despite the fact that there may have been an element of happenstance in the adoption of the form of words actually used in 1961 or even in 1993, I do not regard the result which they require in this case as regrettable or in any way inappropriate. The defendants were subjected to a criminal trial in the High Court, in which, if they had been convicted, they might have been imprisoned for any length of time and deprived of their property without limitation on the amount. They were acquitted by the learned trial judge. It is irrelevant for present purposes that, for the reasons discussed at length in Walsh’s case, cited above, there was no jury. The defendants have been acquitted by a court of competent jurisdiction after the prosecution had deployed against them all the evidence they wish to deploy and had addressed all appropriate arguments to the Court of trial.

It is an utterly novel proposition that an acquittal in those circumstances can be the subject of appeal. I am reminded of what Henchy J. said in the somewhat different context of O’Shea’s case at p.421:

“There is no precedent for the appeal now contended for. This Court has never heard, much less allowed an appeal against an acquittal in the Central Criminal Court. The appellant however contends that we should allow his appeal against the acquittals in this case. More specifically, by his Notice of Appeal he claims that the trial judge’s direction to the jury to bring in verdicts of not guilty was a misdirection and should be set aside and that we should order a new trial on those counts. Were such an order to issue, it would be unprecedented in the annals of criminal law in these islands. It is against the background of such considerations that the propounded question must be set in focus.”
I would also draw attention to the following words of Henchy J.
“While the accused is normally entitled to a rebuttable presumption of innocence right up to the point when the jury return their verdict of not guilty, from that point onwards that presumption stands irrebuttable. So much and so immediately so, that unless the accused is being validly detained on another charge the trial judge must order his peremptory release from custody. And after the acquitted person steps out of the courtroom and breathes afresh the air of freedom, even if it should emerge afterwards that there is fresh evidence of his guilt, and even evidence provided by his own admission of guilt, he cannot be put on trial again for the offence of which he has been found not guilty by the jury. If an attempt were made to retrial him, he could successfully raise the defence known in lawyers’ French as autre fois acquit. That means that he could raise the plea, in bar of the second trial, that he previously been acquitted of the same offence, that in consequence the matter was res judicata and that the prosecution were thus irrevocably estopped from subjecting him to such double jeopardy.”
Nor was this attitude of Henchy J.’s novel one: in the decision of Finlay P. (as he then was) in the same case, he cited Attorney General v. Binchy [1964] IR 395. There, a Circuit Judge had directed a verdict of not guilty on the ground of the prosecution’s failure to produce the original of the return for trial. This was found to be an error. But the verdict had been recorded in the order of the Court as a verdict of not guilty simpliciter. O’Dálaigh C.J. said, and was quoted with approval by Finlay P. in the later case:
“To quash the present verdict of not guilty would not in any real sense be to quash a verdict of acquittal. Nevertheless when the jury’s verdict as recorded is a verdict of not guilty simplicter, this Court should act on the record for what it says. It is entirely without precedent to go behind such a verdict, and it is now too late to create one.”
If it be the case, for the reasons set out in the judgments of this Court in Walsh that this form of trial for contempt in the High Court, uniquely, does not permit of the right to jury trial, I would not regard that fact as conferring any less sanctity on a verdict of acquittal. To do so, indeed, would be to impose a double disadvantage on a defendant: firstly a deprivation of the right to jury trial, and secondly an additional scope to attack a verdict of acquittal simply because there was no provision for jury trial. The fact is that this is a verdict of acquittal on the merits. Such a verdict has never been capable of appeal, to my knowledge, in any common law jurisdiction. This was also the view, as appears from the quotations above from their judgments in O’Shea of Chief Justice O’Higgins and Chief Justice Finlay and as further appears from the judgment of Chief Justice Ó Dálaigh in Binchy.
A concern.
I am however concerned, though the point does not arise in this case, that the same chain of reasoning would seem to exclude any appeal from a conviction for contempt. Equally, I am concerned that it would exclude appeal in other circumstances – e.g. an appeal against an order refusing to award costs to a citizen tried in the Central Criminal Court and who is otherwise entitled to this relief. This, although recent Statute Law has provided an appeal for the State in such circumstances. No appeal to the Court of Criminal Appeal appears to be available to a person not “convicted on indictment”.

This is a matter for urgent legislative attention.
Conclusion.
This was an exercise of the criminal jurisdiction of the High Court. To regard a jurisdiction to convict of a criminal offence, and thereupon to impose imprisonment for an unlimited term or penal confiscation of property without any limit on the amount, as other than criminal, would be to empty the words “criminal jurisdiction” of all meaning. Indeed, as Chief Baron Palles said, it is a jurisdiction essentially criminal.

Because the order against which the Director wishes to appeal was made by the High Court exercising its Criminal Jurisdiction it is, by virtue of s.11 of the Courts (Supplemental Provisions) Act 1961, to be regarded as a decision of the Central Criminal Court.

The right of Appeal to this Court from such a decision was “abolished” by s.11 of the Criminal Procedure Act, 1993. This provision is “an exception… provided by law” from the general right of Appeal, as itself provided for in Article 34.4.3 of the Constitution.

I would therefore decline to entertain the purported Appeal.

Judgment of Mr. Justice Geoghegan delivered the 5th day of March 2008

By a notice of motion grounded on a single affidavit of one John Forde, the Director of Public Prosecutions (“DPP”) sought an order directing the attachment and committal and/or sequestration of the assets of the above-named respondents for contempt of court in respect of material published in the Evening Herald newspaper of the 2nd December, 2004 and a further order restraining the said respondents from further publishing material calculated to interfere with the trial process then in being between the DPP and Patrick O’Dwyer as referred to in the grounding affidavit. The notice of motion was dated 1st February, 2005. A short replying affidavit sworn by the solicitor for the respondents was filed and apart from those affidavits and a few exhibits therein, there was no other evidence adduced at the hearing of the motion. The purpose of the replying affidavit was to place before the court certain reports concerning the pending proceedings referred to as contained in other Irish newspapers. As will have been inferred from what I have already stated, the application was made in connection with alleged advance adverse publications relating to a person charged with a criminal offence namely, a particularly serious assault. It was the DPP’s contention that publications in the Evening Herald were calculated to interfere with the course of justice and the trial process and to prejudice the fair trial of one Patrick O’Dwyer. Contempt of court, from time immemorial, has been categorised in different ways but one of them is that all contempts are either civil or criminal. It is not in contention that the alleged contempt in this case, if it had been proved, was criminal and that therefore the respondents would have been punished for a criminal offence.

As this particular case illustrates, however, from time immemorial criminal contempt of court, if not prosecuted upon indictment in the ordinary way, has been dealt with summarily in the High Court. The historical reason for this was the urgency of obtaining such an order in many instances. Indeed there appears to be English authority to the effect that the summary procedure was only appropriate if there was this element of urgency. On this appeal, the court will not be called upon to consider any question as to whether, in cases of serious criminal contempt, a jury would be required, under the Constitution, to try disputed issues of fact. None of that arises in this case, as the application was dealt with, without objection by any party, as an ordinary motion on affidavits in the High Court. Dunne J. who heard the motion, by a reserved judgment, granted the respondents a “direction” and accordingly, refused the application. It is not necessary to consider whether “direction” was the correct terminology in the procedural circumstances of this case. The fact of the matter is that the order made was one of refusal of the application. On the findings of Dunne J. that was the correct order. Verdicts such as “guilty” and “not guilty” are not normal or appropriate in criminal contempt cases dealt with summarily upon motion.

The DPP has purported to appeal to this court from that decision. The respondents have raised a jurisdictional objection to the hearing of the appeal. Although the objection raises different and alternative issues of law, it is nevertheless one single objection and that is to an appeal from what is described as an acquittal on merits in a criminal case. That this is the objection is clear from both the written and oral submissions made on behalf of the respondents.

When the appeal came on for hearing, it was agreed between the parties and indeed encouraged by the court that the jurisdictional question would be dealt with first and the court indicated that that issue would probably have to be decided in advance of any further submissions on the merits. In a context which I will be explaining, an argument has been made in support of the jurisdictional objection that although nobody thought of it that way or would ever have thought of it that way, nevertheless Dunne J. hearing this motion for committal was, in point of law, “The Central Criminal Court”. Again for reasons which I will, in due course, explain, I have come to the conclusion that at this stage that is really the only question which this court can fairly decide. It will emerge from the judgment that I take the view that the High Court presided over by Dunne J. hearing this motion for contempt was not the Central Criminal Court. If that view were to find favour with the majority of this court it would not, in my opinion, be appropriate to give any definitive view, without further argument, by the parties on the issue of whether notwithstanding the provision in the Constitution providing for appeals to this court from all decisions of the High Court unless the right of appeal has been removed either expressly or by necessary implication by law, there is nevertheless no appeal against an “acquittal”. A number of issues arise on this aspect of the jurisdictional contention which have not yet been aired in open court and an opportunity for that to be done would, in my view, have to be given. The basic response of the DPP to the jurisdictional objection is in the terms of Article 34.4.3 of the Constitution. The relevant part of that provision reads as follows:

“The Supreme Court shall, subject to such exception and such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court ….”.
In the introduction to their written submissions, the respondents set out the questions which they say arise in this appeal and they read as follows:
“(i) Does an appeal by the DPP lie from an acquittal on the merits?
(ii) If an appeal does lie, what is the test for same?

(iii) Did the trial judge make an error such as would lead to the verdict of acquittal being overturned?

(iv) If so, what would the consequences of such a decision be?”

The respondents have indicated a broad approach to their obvious problems in this regard bearing in mind the majority decision in The People v. O’Shea [1982] I.R. 384. In addition, the respondents appear to be discrediting the concept of an appeal on the basis that this court effectively would be asked to convict the respondents of a criminal offence and to carry out its own sentencing. All of these arguments are fraught with obvious difficulties but more or less as an alternative to them or a fallback from them, the respondents rely on section 11(1) of the Criminal Procedure Act, 1993. That subsection reads as follow:
“The right of appeal to the Supreme Court, other than an appeal under section 34 of the Criminal Procedure Act 1967, from a decision of the Central Criminal Court is hereby abolished.”
In order to rely on that subsection, the respondents have to satisfy this court that Dunne J., sitting in the High Court dealing with this motion for committal, was in fact the Central Criminal Court even though that would never have occurred to her or to anybody else. This argument is based on section 11(1) of the Courts (Supplemental Provisions) Act, 1961 which reads as follows:
“The High Court exercising the criminal jurisdiction with which it is invested shall be known as An Phríomh-Chúirt Choiriúil (the Central Criminal Court) and is in this Act referred to as the Central Criminal Court.”
The wording of this subsection undoubtedly derives from Article 34.3.1 of the Constitution which is in the following terms:
“The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.”
This particular wording is identical with wording contained in Article 64 of the Constitution of Saorstát Éireann.
What is important now is to interpret correctly section 11(1) of the Courts (Supplemental Provisions) Act, 1961. This exercise involves determining the true intention of the Oireachtas in enacting the section. Even without considering the further subsections in the section, it would seem most unlikely that on that wording the Oireachtas was intending that the High Court dealing with criminal contempt motions was to be regarded as the Central Criminal Court. But it is not necessary to consider whether a court would be forced to come to that view on an artificial basis having regard to the actual wording. This is because the court in interpreting subsection (1) is clearly entitled to have regard to the other subsections within the section. They read as follows:

“(2) (a) The jurisdiction exercisable by the Central Criminal Court shall be exercisable by a judge or judges of the High Court (including the President of the High Court) nominated from time to time by the President of the High Court.
(b) The jurisdiction of the Court shall be exercisable by each judge for the time being so nominated save that, where the President of the High Court directs that two or more such judges shall sit together for the purpose of a particular case, the jurisdiction of the Court for that purpose shall be exercised by those judges sitting together.

(3) Every person lawfully brought before the Central Criminal Court may be indicted before and tried and sentenced by that Court, wherever it may be sitting, in like manner in all respects as if the crime with which such person is charged had been committed in the county or county borough in which the said Court is sitting.

(4) References in any other enactment (whether passed before or after this Act) to the Central Criminal Court shall be construed as references to the High Court exercising the criminal jurisdiction with which it is invested.”

These additional subsections, in my opinion, clearly indicate that what section 11 is dealing with is indictable crime tried by juries in the ordinary way. There is nothing in the section which indicates that there was any intention to change the long established summary procedures (which were intended to deal with urgent situations) in relation to criminal contempt.
On the wording of the section alone, I would reject the argument that Dunne J., sitting on this motion, was the Central Criminal Court.

Quite apart from interpreting the actual wording, I am of the view that there are other factors which support my interpretation. Courts do not interpret statutes in a vacuum. Judges are entitled to take judicial notice of relevant context and well-known relevant historical facts. Different definitions at different times have been given to the expression “Central Criminal Court” but the differences are not material. They were simply perceived better definitions of what the court actually was. The Courts of Justice Act, 1924 defined “Central Criminal Court” in an unsatisfactory circular way as meaning “the judge of the High Court, to whom is assigned the duty of acting as such judge for the time being.” Section 4 of the Courts of Justice Act, 1926 provided as follows:

“The Central Criminal Court shall have and may exercise every jurisdiction in criminal matters for the time being vested in the High Court, and every person lawfully brought before the Central Criminal Court for trial in exercise of any such jurisdiction may be indicted before and tried and sentenced by that court wherever it may be sitting in like manner in all respects as if the crime with which such person is charged had been committed in the county or county borough in which the said Court is sitting.”
The references to the Central Criminal Court in the Courts of Justice Acts of 1924 and 1926 clearly indicate that the court carrying that name was envisaged as the branch of the High Court trying indictable crime before a jury. Long after the present Constitution came into force, that legislative regime continued and, of course, in many respects was carried over by the Courts (Supplemental Provisions) Act, 1961. I am satisfied that the change of definition of the Central Criminal Court in that Act was motivated by a perception that the new wording would constitute an improvement in draftsmanship. All judges, all courts and all practitioners are perfectly well aware that no material change took place on the ground after 1961. Contempt motions were never dealt with in the Central Criminal Court and indeed there would have been administrative problems if they were. Until very recent years and until well after the Courts Service was established, the Central Criminal Court was serviced by the Circuit Court Office and not by the Central Office of the High Court. This was in turn, of course, a throwback to the origins of the Central Criminal Court. Prior to the establishment of the new courts in 1924, an assigned judge was sent each term to Green Street courthouse under royal commissions of oyer et terminer and gaol delivery and were met at the courthouse in a solemn fashion and attended to by the Clerk of the Crown and Peace for Dublin (predecessor of the Dublin County Registrar). To some extent an equivalent of this continued right up to modern times and as I have already mentioned, servicing of the court by the Circuit Court Office only ceased recently. Before the establishment of the current Special Criminal Court the normal venue of the Central Criminal Court was the Green Street courthouse and I recall that in as late as the sixties each judge of the High Court was assigned in turn each term to that court. At all material times, the workload was indictable crime. I find it impossible to believe that the Oireachtas in enacting section 11 of the Courts (Supplemental Provisions) Act, 1961 was merely by its particular choice of wording intending to widen the scope of the Central Criminal Court.
In further support of the view which I have taken, I would refer to an aspect of the matter adverted to in the judgment of Fennelly J. which I have had the benefit of reading. If the respondents’ argument that the High Court (Dunne J.) dealing with this motion for committal was the Central Criminal Court, it follows that if the decision of Dunne J. had been to the opposite effect and she had granted the relief sought, the respondents would have no appeal to any court. It is clear from the terms of section 11(1) of the Criminal Procedure Act, 1993 that there is no appeal to this court from a final (I am using that word advisedly for a reason which I will explain) decision of the Central Criminal Court. But neither would there be an appeal to the Court of Criminal Appeal because under section 31 of the Courts of Justice Act, 1924 such an appeal only lies at the suit of “a person convicted on indictment before the Central Criminal Court …”. Realistically, it is unlikely that in enacting section 11 of the Courts (Supplemental Provisions) Act, 1961 either the Oireachtas or the draftsman adverted at all to possible implications in the wording for the procedure in summary criminal contempt cases. If it is reasonable to make that assumption which I think it is, that is yet another factor which can be legitimately considered in interpreting the section.

I am further reinforced in the view which I have taken by the dicta of Henchy J. in O’Shea cited above at 421 which are cited in the judgment of Hardiman J. and which read as follows:

“…the Central Criminal Court (which is but a description of the High Court when exercising its jurisdiction to try indictable offences).”
In this particular context Hardiman J. expresses the view that no one looking at the Act of 1993 in its context can doubt that its purpose was specifically to overrule the effect of the decision of this court in O’Shea. For my own part, I would take a slightly different view. I think it more likely that the main purpose of the 1993 provision was to remove the alternative right of appeal to the Court of Criminal Appeal or the Supreme Court. The possibility of a direct right of appeal from the Central Criminal Court to the Supreme Court arose as a consequence of the earlier decision of The People v. Conmey [1975] I.R. 341. I think that at the very least there must be doubt as to the purpose of enacting section 11 of the 1993 Act and indeed although it is not really relevant here, I think that there must be doubt as to its scope. The view taken for instance by Carney J. in The People (DPP) v. WM [1995] 1 I.R. 226 and referred to in the written submissions of the respondents that no appeal can lie from any ruling of the Central Criminal Court may not necessarily be correct. This court expressly left that question open in Sweeney v. The Rape Crisis Centre [2002] 1 ILRM 532. It is certainly arguable that the section precludes appeals to the Supreme Court from the final decisions of cases before the Central Criminal Court only and not necessarily from orders made in interlocutory applications from which there is no statutory appeal to the Court of Criminal Appeal available. In this case, of course, the decision of Dunne J. was undoubtedly a final decision. I merely refer to the issue because it was considered relevant by the respondents in their written submissions, the argument being that in the light of the judgment of Carney J. the scope of section 11(1) of the 1993 Act is “very broad”.
It may be argued that the interpretation which I give to section 11(1) of the 1961 Act is contrary to the literal interpretation and that however surprising the results might be, I am obliged to interpret the section according to the words used. Essentially, this argument would be based on the traditional approach to the interpretation of statutes which was reinforced in modern times by this court in Howard v. The Commissioners of Public Works [1994] 1 I.R. 101 and in particular the judgment of Blayney J. delivered in that case. A well-known passage in Maxwell on the Interpretation of Statutes (12th ed. 1976) was cited by Blayney J. and reads as follows:

“Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient: words are not to be construed contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the court is to expound the law as it stands, and to ‘leave the remedy (if one be resolved upon) to others’.”
In fact in that case, Blayney J. went on to question whether his interpretation did in fact create an absurd result. I am satisfied that even the traditional jurisprudence on interpretation of statutes does not inhibit this court from holding what everybody in reality would have believed namely, that the Central Criminal Court did not include the sitting of an ordinary High Court judge in the High Court in the ordinary way hearing a committal motion albeit a criminal contempt.
Denham J. who was a member of the majority of this court in Howard has in more than one case referred to the importance of adopting a purposive approach to interpretation so that the true intention of the Oireachtas can emerge. In DPP (Ivers) v. Murphy [1999] 1 IR 98 at 111, she approved the following dicta from Lord Griffiths in the House of Lords case Pepper v. Hart [1993] AC 593.

“The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation …”
Immediately after that citation, Denham J. comments as follows:
“I would concur with this approach. However, no method of interpretation may be such as to encroach on the constitutional role of the Oireachtas as the legislative organ of the State. The rules are applied to interpret the acts passed by the legislature and in so doing afford the respect appropriate from the judicial organ of government to the legislature.
The rules of construction are part of the tools of the courts. The literal rule should not be applied if it obtains an absurd result which is pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be read in the section without rewriting the section then that is the appropriate interpretation for the court to take.”

To interpret section 11(1) of the 1961 Act in the way I have done and in the way Fennelly J. seems to have done in his judgment does not appear to me to constitute “rewriting the section” but rather interpreting it purposively and in context as otherwise the provision would have most surprising and clearly unintended results.
A recent incidence of the purposive approach to interpretation by this court is contained in the judgments in Bemis v. The Minister for Arts, Heritage, Gaeltacht and the Islands (unreported decision of this court delivered 27th March 2007). The lead judgment was delivered by Macken J. who first referred to the judgment of Blayney J. in Howard v. The Commissioners of Public Works cited above and in particular to the following quote from Craies on Statute Law (1971) (7th ed.) at p. 65 quoted by Blayney J.

“The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation the primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act use the words in dispute.”
Macken J. went on however to refer to the purposive construction test enunciated by Denham J. in DPP (Ivers) v. Murphy also cited above pointing out however that the intention “must nevertheless be obvious from the words actually chosen”. Once section 11 is read as a whole and in context as I have suggested, it is reasonable and appropriate to interpret it as not including summary applications for attachment or committal to the High Court.
At this stage, I would like to refer briefly to the English case law although I do not think that any material assistance can be gained from it. Indeed it is not altogether clear whether over the years the English and Irish law on contempt has diverted. There appears to be authority in England, for instance, that sequestration is not an appropriate remedy for criminal contempt, yet it is included in this motion and indeed has been included in previous Irish cases. Interestingly, the Halsbury volume on Contempt i.e. 4th edition, volume 9 in a footnote to paragraph 4 says the following:

“Formerly the most important characteristic of (criminal contempt) was the absence of a right of appeal from an order of committal for criminal contempt. A right of appeal is now conferred in cases of criminal and civil contempt by the administration of Justice Act, 1960, section 13.”
The whole thrust of the treatment of contempt of court in Halsbury is that there is no major distinction between criminal and civil contempt though there are some differences. Once the right of appeal was applied to both in 1960 the remaining differences, as listed, are either minor or obscure. Paragraph 4 itself states that criminal contempts are distinguished by the following characteristics:
1. Privilege is not allowed.
2. The sheriff may break open an outer door in executing the process and perhaps may execute it on Sunday.

3. The order of discharge from custody may be made conditional on the payment of costs.

4. The writ of sequestration is inapplicable to criminal contempts.

5. The prerogative of the Crown extends to the remission of a sentence for criminal contempt but the Crown never interferes in the case of a contempt that is not criminal.

Of further interest is the comment of Salmon LJ (as he then was) in the case of Jennison v. Baker [1972] 1 All E.R. 997 at 1002 which reads as follows:
“Contempts have sometimes been classified as criminal and civil contempts. I think that, at any rate, today, this is an unhelpful and almost meaningless classification.”
That comment is specifically cited in Halsbury.
I have mentioned these references a propos of the view expressed by Hardiman J. in his judgment that contempt proceedings are not proceedings which are “sui generis”. I am in the somewhat strange position that I agree and disagree with that comment. I agree in the sense that criminal contempt even if tried summarily is a criminal offence and that the defendant is entitled to whatever constitutional rights should apply to the hearing. Putting it that way, leaves open the question of entitlement to a jury in any particular circumstances (an issue which as I have already mentioned does not arise here). I agree also that the most important recent authority in support of this proposition is The State (DPP) v. Walsh [1981] I.R. 412 though I think that no particular significance can be attached to the remark of O’Higgins C.J. that “such proceedings” can be correctly described in reality as “a charge of a criminal offence”. That simply begs the kind of procedural questions involved here.

Where I disagree that contempt proceedings are not sui generis is in relation to the historical procedures which have applied from time immemorial and up to the present in relation to contempt proceedings. In my opinion, that is a respect in which they are quite obviously sui generis. I think that if anything the quotation from Palles C.B. in AG v. Kissane 32 LR Ir 220 referred to in AG v. O’Kelly [1928] I.R. 308 and fully set out in the judgment of Hardiman J. bears out the separate aspects of the contempt jurisdiction even though in so far as it involves fining and imprisoning that jurisdiction as pointed out by the Chief Baron is “essentially criminal”. As Hardiman J. points out, that would mean, for instance, that the criminal standard of proof must apply.

The fact that accusations (to use a non-legal term) of criminal contempt however serious have been tried summarily by judges over the centuries makes them sui generis in a procedural sense. Indeed there is one aspect of their uniqueness which I have not up to now mentioned. Quite apart from cases of contempt in the face of the court, criminal contempts are offences against the administration of justice itself and are, therefore, offences not exclusively external to the court itself even if the party applying for the attachment or committal is himself offended.

For all these reasons and having regard to context and procedural history, I am quite satisfied that this court does not have to interpret section 11(1) of the 1961 Act in a strictly literal fashion with consequences clearly unintended which might be widely regarded as absurd. In my view, by no stretch of the imagination was Dunne J. sitting in the High Court in the ordinary way to deal with this motion the Central Criminal Court and it would never have occurred to anybody that she was. I believe that those factors are actually relevant and that I am not merely indulging in rhetorical flourish.

I would, therefore, hold that that court was not the Central Criminal Court. I believe that that is all which this court should hold at this stage. In my view, the arguments as to whether this court lacks jurisdiction to overturn the acquittal, as it is described, will be different depending on the court’s finding on the Central Criminal Court issue.

JUDGMENT of Mr. Justice Fennelly delivered the 5th day of March 2008.

1. The Respondents have made a preliminary objection to the jurisdiction of this Court to hear this appeal. They submit that no appeal lies from the decision of the High Court (Dunne J.), refusing the application of the Appellant to attach or commit the Respondents for contempt of court. Determination of that issue depends on the correct interpretation of s.11 of the Criminal Procedure Act, 1993 combined with s. 11 of the Courts (Supplemental Provisions) Act, 1961.

2. The appellants say: a) the contempt jurisdiction of the High Court is a criminal jurisdiction; b) the High Court, when exercising its criminal jurisdiction, including its power to attach or commit for contempt of Court, is called the Central Criminal Court (s. 11 of the Act of 1961); c) there is no appeal from the Central Criminal Court to this Court (s. 11 of the 1993 Act).

3. The appellant applied by notice of motion to the High Court for an order directing the attachment and committal and/or sequestration of the assets of the Respondents and each of them for contempt of court in respect of material published in the Evening Herald on 2nd December 2004. The notice of motion also sought an order restraining the Respondent from further publishing material “calculated to interfere with the trial process now in being between the Applicant [the appellant] and Patrick O’Dwyer……” The application was grounded on an affidavit sworn by Mr John Forde, a solicitor in the Office of the Chief Prosecution Solicitor. Mr Forde deposed that, on 1st December 2004, one Patrick O’Dwyer had appeared before the District Court in Ennis, County Clare, charged with murder. He exhibited a copy of the Evening Herald published on 2nd December 2004. He alleged that the contents of the article were calculated to interfere with the course of justice and the trial process and to prejudice the fair trial of the said Patrick O’Dwyer, that they were in breach of the sub judice rule and amounted to a contempt of court. According to the affidavit, the Evening Herald is published by the first-named Respondent, the second-named Respondent is its editor and the impugned articles were written by the third-named Respondent. A brief affidavit on behalf of the Respondents was sworn by Ms Paula Mullooly, solicitor.

4. The application was heard by Ms Justice Dunne. At the conclusion of the presentation of the case on behalf of the appellant, counsel for the Respondents applied to the learned judge for “a direction,” or non-suit, relying on the principle that a trial court may direct an acquittal at that point. It was submitted that it was essential that there be proof before the court of a real risk of interference with a criminal trial and that no evidence had been adduced by the prosecution to demonstrate that the publication of which complaint was made created any real risk of interference with the due administration of justice in the prospective criminal trial of the said Patrick O’Dwyer.

5. Ms Justice Dunne delivered a reserved judgment on 3rd May 2005. She referred extensively to authority. She noted that what was alleged was a criminal contempt of court. She held that she was bound to apply the criminal standard of proof. Accordingly, the appellant had to show that the Respondents were guilty beyond reasonable doubt of contempt of court. On careful consideration of the application of the appellant, she could not conclude that it had been shown that the articles complained had given rise to a real risk as distinct from a remote possibility of prejudice to the fairness of the trial. Hence, she refused the application.

6. The appellant, in his notice of appeal advances principally the contention that the learned judge had incorrectly failed to consider whether the appellant had made out a prima facie case that the Respondents had committed a contempt of court. The Respondents raised, in their written submissions, the question whether an appeal lies, as a matter of principle, from the decision of the High Court, which amounts to an acquittal in a criminal proceeding. That contention takes two forms. Firstly, the Respondents refer to the historic common-law rule, described as an elementary principle, that:

“an acquittal made by a court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other court.” (per Palles CB in R(Kane) v Tyrone Justices (1906) 40 ILTR 181).
7. Reference was also made to the dictum of O’Dalaigh J in State(Attorney General) v Binchy [1964] 395, at 416 that it was “entirely without precedent to go behind [a not guilty] verdict and it [was] now too late to create one.” The submissions proceed to refer to the decisions of this Court in The People(Attorney General) v Conmey [1975] I.R. 341 and The People(Director of Public Prosecutions) v O’Shea [1982[ I.R. 384, describing the first as “highly controversial” preferring the dissenting views in the case of the latter. If the Court were to consider reviewing or over-ruling these precedents it would be necessary to make reference is made to the authorities governing the circumstances in which the Court will depart from precedent. None of that arises at this point. Secondly, the submissions rely on s. 11(1) of the Act of 1993 and the identically numbered provision of the Act of 1961. It is the latter point which the Court has decided to consider as a preliminary issue. The first one remains open.
8. The entire issue depends on whether Dunne J was sitting as a judge of the Central Criminal Court. As Hardiman J has observed in the judgment which he has delivered, “no person, and certainly no lawyer, would speak naturally of the Court in which Ms. Justice Dunne sat and disposed of the Director’s application as “The Central Criminal Court.” That is certainly true. The question remains whether the wording of the two cited sections is sufficiently clear and unambiguous to oust the constitutionally ordained appellate jurisdiction of this Court. There is no doubt that this is a difficult question. There is great force in the conclusion expressed by Hardiman J. I have come, nonetheless, to a different conclusion. I need to consider the nature of the contempt jurisdiction. I must say, at once, that I fully accept that it clear beyond argument that the jurisdiction is of a criminal character. I consider, nonetheless, that the manner of its exercise, both historically, and, as it is at present exercised by the High Court, is of relevance. Most crucially, I will consider the nature of the jurisdiction exercised by the Central Criminal Court.

9. The proposition that a court, called upon to exercise its contempt jurisdiction is dealing with a criminal matter is well established. The nature of the remedy is determinative. The primary remedy sought in the Notice of Motion is the “attachment and committal and/or sequestration of the assets of the Respondents…”

10. The judgment of O’Sullivan P, in the High Court of the Irish Free State, in Attorney General v O’Kelly [1928] I.R. 308 traced common-law authorities back to the eighteenth century. It was, according to Wilmot C.J. a power to “fine and imprison for contempt of court.” (R v Almon 1 Wilm. 243). Palles C.B. thought that “no one will contend that the jurisdiction to fine and imprison is not essentially criminal.” (Attorney General v Kissane 32 L.R. I.R. 220). O’Higgins C.J. said as much in his judgment in State (Director of Public Prosecutions) v Walsh [1981] I.R. 412 at 429.

11. The object and incidents of the jurisdiction may be discerned from the same historic sources and have been consistently reiterated down to our own time. It is, to cite Wilmot C.J. once more, that of the courts “vindicating their own authority……” He also drew attention to the contrasting methods of procedure, namely by attachment and by trial by jury. In a further part of his judgment, also cited by O’Sullivan P, he explained the need for the former procedure by the need:

“…to deter men from offering any indignities to Courts of Justice, and to preserve their lustre and dignity, it is a part of the legal system of justice in this kingdom that the Court should call upon the delinquents to answer for such indignities, in a summary manner, by attachment,…”
12. O’Sullivan P. continued to reject the contention that the jurisdiction had not been carried over by the 1922 Constitution, stating, at page 318:
“I am of opinion that Art. 72 [of that Constitution] was not intended to, and does not, affect the jurisdiction of the High Court to deal summarily with cases of contempt, and that its operation is confined to trials of criminal charges by ordinary criminal process.”
13. Meredith J, in his dissenting judgment, spoke of: “the supreme end in view—the preservation of due respect for the law” (page 325). Since the foundation of the State and, specifically, since the enactment of the present Constitution, the Courts have consistently held that they have an inherent jurisdiction to punish summarily contempt of court, whether taking the form of contempt in the face of or out of court. (see In re Earle [1938] I.R. 412; Attorney General v Connolly [1947] I.R. 213.)
14. The contempt jurisdiction derives from the need for the courts to be in a position to act speedily to protect the respect and dignity of the courts themselves in the independent exercise of their functions and, equally importantly, to protect the judicial process from contamination by, inter alia, prejudicing parties, witness or jurors or risking the fairness of trials. At this point in the present proceedings, there is no need to consider the applicability of these procedures to the instant case. The need for a summary remedy justifies a summary procedure. Attachment and potential committal were devised for that purpose. The procedures are laid down by Order 44 of the Rules of the Superior Courts. They are the procedures employed by the appellant in the present case. The appellant has served a Notice of Motion, grounded on an affidavit. The essence of his complaint, as set out in a grounding affidavit, is that the Respondents have published newspaper articles “calculated to interfere with the course of justice and the trial process and to prejudice the fair trial of…” one Patrick O’Dwyer. Dunne J dismissed the application. It is from that decision that the appellant seeks to appeal to this Court.

15. The two relevant statutory provisions act in combination. S. 11(1) of the Act of 1993 provides:

“The right of appeal to the Supreme Court, other than an appeal under section 34 of the Criminal Procedure Act, 1967, from a decision of the Central Criminal Court is hereby abolished.”
16. Thus, if the decision made by Dunne J was, as a matter of law, a decision of the Central Criminal Court, there is no appeal. Whether or not it was such a decision, must depend on s. 11(1) of the Act of 1961. I cite the entire section. It provides:
“1) The High Court exercising the criminal jurisdiction with which it is invested shall be known as An Phríomh-Chúirt Choiriúil (The Central Criminal Court) and is in this Act referred to as the Central Criminal Court.
(2) ( a ) The jurisdiction exercisable by the Central Criminal Court shall be exercisable by a judge or judges of the High Court (including the President of the High Court) nominated from time to time by the President of the High Court.

(b) The jurisdiction of the Court shall be exercisable by each judge for the time being so nominated save that, where the President of the High Court directs that two or more such judges shall sit together for the purpose of a particular case, the jurisdiction of the Court for that purpose shall be exercised by those judges sitting together.

(3) Every person lawfully brought before the Central Criminal Court may be indicted before and tried and sentenced by that Court, wherever it may be sitting, in like manner in all respects as if the crime with which such person is charged had been committed in the county or county borough in which the said Court is sitting.

(4) References in any other enactment (whether passed before or after this Act) to the Central Criminal Court shall be construed as references to the High Court exercising the criminal jurisdiction with which it is invested.”

17. The key question relates to the meaning of the expression, the “High Court exercising the criminal jurisdiction with which it is invested.” It has to be accepted that, on a literal interpretation, it might be held to apply to the jurisdiction exercised by Dunne J in this case. Against that is the very strong intuitive point that nobody, in practice, would consider that Dunne J was sitting as a judge of the Central Criminal Court. In the end, I think there is good legal reason for that.
18. However, before further consideration of that central question, I will refer to two issues of more general importance.

19. The first concerns the appellate jurisdiction of this Court. Article 34.4.3 of the Constitution provides:

“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
20. It is a well established proposition that, where it is contended that any provision of any statute prevents or limits the right of appeal to this Court, it must be clearly shown that it has that result. As was stated by Walsh J, with whom Doyle J agreed, in People (Attorney General) v Conmey [1975] I.R. 341 at 360:
“I wish to express my view that any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court, or any particular provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and unambiguous. The appellate jurisdiction of this Court from decisions of the High Court flows directly from the Constitution and any diminution of that jurisdiction would be a matter of such great importance that it would have to be shown to fall clearly within the provisions of the Constitution and within the limitations imposed by the Constitution upon any such legislative action.”
21. O’Higgins C.J., at page 354 of the report in that case, stated:
“Since its appellate jurisdiction from decisions of the High Court is written into the Constitution, this can only be restricted or regulated by legislation clearly intended to have this effect.”
That interpretative principle was reiterated by Keane C.J. in A.B. v Minister for Justice, Equality and Law Reform [2002] 1 IR 296 at 303: “the right of appeal to this court provided for in Article 34.4.3 may only be removed or abridged by a statutory provision which is clear and unambiguous.” That principle must be borne in mind when interpreting s. 11 of the Act of 1993.
22. The second general issue is a closely associated one. If the Respondents are corrected in their contention, s. 11 precludes any appeal from a High Court decision to acquit of a charge of contempt, such as in the present case. The inevitable corollary would appear to be, however, the even more far-reaching one that there would equally be no appeal in the case of conviction. The section addresses itself generally to decisions of the Central Criminal Court. It makes no distinction between acquittal and conviction. A person found guilty of contempt of court. i.e., convicted, will have been so found pursuant to the summary procedure for attachment and commital, and not on indictment. The right to appeal from conviction in the Central Criminal Court to the Court of Criminal Appeal applies only to persons convicted on indictment. This follows from s. 31 of the Courts of Justice Act, 1924. That section provides that, subject to provisions relating to a certificate granting leave, a “person convicted on indictment before the Central Criminal Court …… appeal under this Act to the Court of Criminal Appeal……” S. 31 was, as stated by this Court in People (Attorney General) v Conmey, cited above, “…re-enacted in relation to the……Court of Criminal Appeal…” (See O’Higgins C.J. at 354), by s. 48 of the Act of 1961. It is clear that a person found to have been in contempt of court has no right of appeal to the Court of Criminal Appeal. So far as I am aware, no attempt has ever been made to bring such a case before that court.

23. A statutory provision having the effect of prohibiting any appeal from conviction of a criminal offence would be, to the least, very surprising. If it were constitutionally possible, it would certainly require clear wording.

24. I then turn to consider the two sections, both enumerated 11. I cannot entertain any doubt as to the meaning os s. 11 of the Act of 1993. It “abolishes” the right of appeal from the Central Criminal Court to the Supreme Court. Until this Court decided People (Attorney General) v Conmey, it had not been claimed that any such appeal lay. It seems reasonable to infer that the primary objective of s. 11 was to abolish the right of appeal so identified, as well as the possibility of appeal by the prosecution found, by a majority of this Court, to lie in the case of an acquittal, in the later case of The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384. It seems highly unlikely that the legislature had it in mind to prevent appeals from either conviction or acquittal in cases of contempt of court.

25. I have to accept that the language of the sections is unhelpful. Where, however, the objective is to limit the appellate powers of this Court, I am satisfied that the wording used would need to be very clearly expressed so as to apply to cases heard under the effectively civil rules relating to attachment and committal. It is far from being so.

26. Everything in the context of s. 11 of the Act of 1961 points to its being concerned with the normal business of the Central Criminal Court, the conduct of trials on indictment. Sub-section 3 provides that persons “may be indicted before and tried and sentenced by that Court……” Sub-section 2 refers to the jurisdiction of the Central Criminal Court being “exercisable by a judge or judges of the High Court (including the President of the High Court) nominated from time to time by the President of the High Court.” That provision replaced s. 3 of the Courts of Justice Act, 1924, which had envisaged “the judge of the High Court, to whom is assigned the duty of acting as such Court for the time being.” In each case, some degree of formality is involved: a judge or judges is or are assigned to sit in the Central Criminal Court. It is not suggested, in the present case, that any such step had been taken in the case of Dunne J, in reference to the present case.

27. Sub-section (1) provides that the “High Court exercising the criminal jurisdiction with which it is invested” is to be known as the Central Criminal Court. S. 8 of the Act of 1961 provides for the “vesting” of jurisdiction in the High Court generally. S.8(2) provides:

(2) There shall be vested in the High Court—
(a) all jurisdiction which was, immediately before the commencement of Part I of the Act of 1924 vested in or capable of being exercised by the former High Court of Justice in Southern Ireland or any division or judge thereof and was, immediately before the operative date, vested in or capable of being exercised by the existing High Court,

(b) all jurisdiction which, by virtue of any enactment which is applied by section 48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing High Court.

28. S. 14 provides that all courts, including the Central Criminal Court are to exercise their jurisdiction “in the manner provided by rules of court.” Order 86 of the present Rules deal with the exercise of the jurisdiction of the Central Criminal Court. As one would expect, those rules, like their predecessors, contemplate only trial on indictment. S. 25, provided that “the Circuit Court shall have and may exercise every jurisdiction as respects indictable offences for the time being vested in the Central Criminal Court……”
29. I conclude that everything in the statutes and the rules suggests that the Central Criminal Court has jurisdiction to conduct trials on indictment. It does not, to use the language of the section, “invested” with any other jurisdiction. I do not believe that applications for attachment or committal, as provided for by Order 44 come within the jurisdiction of the Central Criminal Court.

30. It follows that, since Dunne J was not exercising the jurisdiction of the Central Criminal Court, s. 11 of the Act of 1993 does not prevent the appellant from appealing to this Court.

Tracey v District Judge McCarthy

[2008] I.E.H.C. 59

JUDGMENT OF Mr Justice Brian McGovern delivered the 6th day of March, 2008
1. By order of the High Court made on the 1st day of June, 2006, the applicant was granted leave to apply by way of Judicial Review for an order of certiorari quashing the order made by the first named respondent on the 31st of May, 2006 at Richmond District Court No. 53, committing the applicant to Mountjoy Prison for seven days for contempt of court, arising in the course of a case entitled Director of Public Prosecutions at the suit of Garda Deirdre Ryan v. Kevin Treacy. The applicant was granted leave on the grounds set forth at paragraph E. sub-paragraphs 1-3 in the Statement of Grounds. Ground One is that the first named respondent erred in law by denying the applicant a fair hearing or indeed any meaningful opportunity to speak, represent himself or make submissions, both oral and written, in the case before him.
Ground Two is that the first named respondent further erred in law by denying the applicant equal treatment to that accorded to the opposing party in the case before him. Ground Three stated that the first named respondent further erred in law, committed an abuse of process and acted ultra vires by first ordering the applicant be removed from the Court, and, while that was being done and the applicant protested about the behaviour of the Gardaí involved in the case and in bringing a malicious prosecution against him, then ordering the applicant to be brought back before him and holding the applicant in contempt of Court without informing applicant of the nature and substance of the accusation, without upholding the applicant’s right to have the contempt matter tried by an impartial and independent Court and without upholding the applicant’s right to hear the evidence of his accuser regarding the alleged contempt, prepare a defence, call witnesses or have legal representation of his choice in defence of the contempt matter before judgment was given. The applicant contends that this was done by the first named respondent contrary to his duties under the Constitution.
The facts
2. The facts, briefly, are as follows:
The matter before the District Court was a routine Road Traffic prosecution. The applicant was charged with careless driving on the 30th of August, 2004 at Park Lane, Chapelizod, Dublin 20. From the affidavits which have been presented in this case, I am satisfied that the prosecution had great difficulty in serving the applicant. There is evidence on affidavit, which I find convincing, that the applicant was trying to evade service. In any event, he appeared in Court on the 31st of May, 2006. The respondent was told by the prosecutor that on the previous occasion, when the matter was listed, the applicant was not in Court so he was seeking a date for the next appearance, depending on how the applicant pleaded. It seems that the District Judge then asked the applicant whether he was pleading guilty or not guilty and the applicant replied “I am pleading not guilty”. There is an unofficial transcript of the hearing which was prepared by a Mr Owen Rice who was acting as a McKenzie friend to the applicant in the application before me. The applicant represented himself at this hearing in the High Court and he referred to his McKenzie friend from time to time. I am happy to accept that the transcript of the hearing before the respondent is reasonably accurate and, broadly speaking, represents what was said. I use the words “broadly speaking” because at certain points in the transcript, it purports to suggest to the reader who the applicant was addressing his remarks to, and what was happening to the applicant. For example, at a crucial part of the transcript, the following appears: –
KEVIN TREACY [to GDA.D RYAN who is helping propel him to door] . . . “How crooked! And you think you will get away with this? How crooked you are!”. This, unfortunately, betrays a rather subjective approach on the part of the note taker and the transcript has to be read with that “health warning”.
3. What appears clear is that the applicant turned up in Court on the 31st of May, 2006 with his wife and Mr Owen Rice. The prosecution indicated to the Judge that they wanted an adjournment and when the applicant pleaded not guilty, the respondent intended to fix the date for the hearing. However, the applicant was intent upon making a statement and had indicated to the Court that he had asked for a stenographer to be present. The District Judge indicated that he was not receiving any statement as the matter was being adjourned. The applicant refused to accept the Judge’s ruling and became abusive. I do not propose to repeat everything that is in the transcript, but a few matters are relevant.
4. After the Judge told the applicant he would not allow him to make a statement, the applicant went on to say that the issue concerned six years of abuse, orchestrated by a Judge who was his next door neighbour. He referred to false summonses to Court and it appears that he was behaving in a truculent manner. In my view, the respondent was perfectly entitled to have him removed from the Court as he was persistently refusing to comply with the Judge’s direction. As he was being removed from the Court, the transcript shows that Garda Ryan and another guard were trying to pacify him. He said to the Judge “You’ll certainly hear about this, Judge!”. One of the Gardaí said “Come on now”. And the applicant repeated, “You’ll certainly hear about this!”. The unofficial transcript then shows that Garda D Ryan said, “Yes, please [to KEVIN TREACY], come on, come on, come on now, forget about it, you heard the Judge”. That indicates to me that the Garda was trying to get the applicant out of Court before he got himself into further trouble. But the applicant continued to be belligerent, even though Garda Ryan and another Garda said “. . . Come on now, next time”. This seems to have been an attempt to persuade the applicant to accept the ruling of the Court and that he could make whatever statement he wished on the next time when the matter was listed for hearing. At this point, the transcript shows that the applicant said “ . . . How crooked! And you think you will get away with this? How crooked you are!”. The applicant’s wife said, “You have another think (sic) coming”. In the transcript it is suggested this was said to Garda Ryan. At that point, the District Judge said he wanted the applicant brought back. Garda Ryan swore an affidavit in the related Judicial Review case and although the papers in this case contained an undated Notice of Motion to cross examine, it is significant to note that the applicant never cross-examined her on her affidavit. In her affidavit of the 2nd of October, 2006, she said that the applicant continually insisted he wanted to read out a statement. She says:
“19. …He continually insisted that he wanted to read out the statement. His wife was encouraging him by saying “you have a right to speak Kevin”. The applicant alleged that a colleague of the respondent was orchestrating harassment against him and further alleged in Court that the Gardaí in Ballyfermot are corrupt. He stated that a member of the Judiciary had orchestrated ongoing harassment, resulting in him being brought before the Courts.
20. The respondent warned the applicant to desist in talking in this manner.
21 The respondent then asked the Court Garda to remove the applicant from the Court. The applicant refused to desist from talking, as is clear from paragraph 20 of his own affidavit. He refused to co-operate with the Gardaí who tried to remove him from the Court or to comply with the Judge’s order and continued making these allegations.
22 The respondent then directed the Gardaí to bring the applicant up to the front of the Court. He then indicated that he was going to hold him in contempt of Court and asked him whether he had anything to say. The applicant stated ‘no’ as appears in his affidavit”.
In paragraph 20 of his affidavit, sworn on the 31st day of May, 2006, the applicant states “As I was complying with the direction to leave, I continued to explain my position and that the abuse that I am suffering at the hands of the Gardaí is orchestrated, but just about six feet short of the door, the Judge called for me to be brought back”.
5. In the hearing before me, the applicant stated that he never made these remarks to the Judge but that they were made to the Gardaí. When I asked him if he informed the Judge of this, he said “no”. When I asked him why he did not inform the Judge of this, he stated that he had no need to as he had not said anything to the Judge.
6. What is clear from the affidavits and from the unofficial transcript is that the District Judge saw the applicant refuse to comply with his direction and heard him shout matters which could reasonably be construed as suggesting that the respondent was corrupt. He had already referred to six years of abuse orchestrated by a Judge and had said at one point, “You’ll certainly hear about this, Judge!” and later stated, “How crooked! And you think you will get away with this? How crooked you are!”. In my view, the respondent was entirely within his rights to call the applicant back and hold him in contempt of Court.
7. It is of significance that the unofficial transcript shows that the respondent said to the applicant, “Now I’m holding you in contempt of Court, and do you have any, do you have anything to say with regard to that?”. This was stated before the Judge imposed any sanction for the contempt. Having asked the applicant if he had anything to say, the applicant replied, “No”. If, as the applicant contends, he never spoke these words to the Judge but they were directed at the Gardaí, all he had to do was say that to the Judge. But to this day he has not done so. Nor has he apologised for his behaviour in Court in refusing to comply with the directions of the Judge.
8. In circumstances where the respondent offered the applicant an opportunity to address him before he imposed a sanction, I cannot see how the applicant was denied a fair hearing or a “meaningful opportunity to speak, represent himself, or make submissions”. When I speak of making submissions, I refer to submissions on the contempt issue because it is clear that the matter was being adjourned for hearing to another date. I therefore refuse the applicant the relief which he seeks on Ground One in the Statement of Grounds.
9. The second ground is that the first named respondent erred in law by denying the applicant equal treatment to that accorded to the opposing party. There is nothing in the evidence before me, or in the unofficial transcript, which goes anywhere near establishing this ground. The matter in the District Court was to be adjourned and no hearing on the merits of the case was taking place. The District Judge was informed that as the applicant had failed to appear on a previous occasion, the prosecution were seeking a new date, depending on how the applicant pleaded. The applicant pleaded not guilty and the only issue which then arose was the fixing of a date for the hearing. That would have been the end of the matter were it not for the conduct of the applicant in trying to make a statement and then refusing to accept the Judge’s ruling. From that point on, the exchanges appear to have been between the applicant and the respondent and members of An Garda Siochána. The prosecutor does not appear to have been involved at that stage. Accordingly, I refuse the application based on Ground Two.
10. The final ground upon which the applicant was granted leave to apply for Judicial Review was that the first named respondent erred in law, committed an abuse of process and acted ultra vires by ordering that the applicant be removed from the Court and by committing him for contempt at a time when the applicant was protesting about the behaviour of the Gardaí involved and the fact that a malicious prosecution was brought against him. He also complains that the respondent did not inform him of the nature and substance of the accusation and that the matter of contempt should have been dealt with by an impartial and independent Court and that he should have been entitled to hear the evidence of his accuser regarding the alleged contempt and prepare a defence and call witnesses or have legal representation in defending the issue.
11. The applicant was found guilty of contempt in the face of the Court and I am quite satisfied on the evidence that the respondent had ample justification for making such a finding and was acting within his jurisdiction. A Judge of the District Court, or any other Court, is entitled to protect the dignity and integrity of the Court against unlawful conduct. Once the applicant engaged in the outburst in Court, the respondent was entitled to deal with the matter summarily in order to restore order and protect the Court against the scandalous remarks being uttered by the applicant.
12. I simply do not accept that the applicant did not know why he was being found guilty of contempt of Court. This applicant represented himself before this Court and seemed to be very well versed in legal procedures and referred liberally to case law and the Constitution, although, sadly, not to the point on most occasions. The applicant was given an opportunity to defend himself because the respondent did not sentence him for contempt without giving him an opportunity to be heard. The applicant said he had nothing to say and yet he complains to this Court that he was making his remarks to the Gardaí and not the Judge. The time to say that was when he had been asked if he had anything to say, but he chose not to do so. In the circumstances, it is difficult to see how the respondent erred in any way in imposing the sentence for contempt in the face of the Court. The applicant argued before me that he did not say anything because he was confused. I do not accept that. The applicant was liberal in the hurling of insults when he was in the District Court. In this Judicial Review hearing, he made unfounded allegations against Counsel that she was deliberately misleading the Court and he also said that the Gardaí, through their affidavits, were deliberately misleading the Court. I reject both those assertions by the applicant.
I reject the applicant’s claim for Judicial Review on this ground also.
13. It is worth noting that the applicant at no time appealed the finding of contempt or the sentence imposed.
14. For the reasons set out above, I hold that the applicant is not entitled to the relief claimed and I dismiss the application for Judicial Review.