THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

CONSULTATION PAPER

ON

CONTEMPT OF COURT

July 1991

IRELAND

The Law Reform Commission

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

© Copyright The Law Reform Commission 1991

First Published July 1991

CHAPTER 1: INTRODUCTION

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

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

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

common law jurisdictions under the rubric of contempt.⁴

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

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

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

CHAPTER 2: CONTEMPT IN THE FACE OF THE COURT

Introduction

In Re Rea (No. 2),¹ May, CJ said:

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

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

Types of Contempt in the Face of the Court

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

(1) Assaults and Insults

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

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

contempt in the face of the court.¹¹

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

to you, you bastard”.

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

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

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

(2) Interruption of Court Proceedings

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

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

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

Lord Denning, MR observed:

And Salmon, LJ said:

(3) Tape Recorders

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

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

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

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

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

(4) Photographs, Television and Video Recording

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

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

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

(5) Non-Attendance at Court

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

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

Mens Rea

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

Contempt by Particular Persons

(a) Lawyers⁴⁰

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

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

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

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

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

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

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

False Representation as Lawyer

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

Watson J said:

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

administration of justice.

(b) Witnesses

Halsbury⁶⁰ states:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) Parties

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

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

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

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

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

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

(d) Jurors

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

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

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

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

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

Jurisdiction

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

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

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

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

Madden J concurred in this view of the section:

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

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

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

Opportunity for Defence

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

In Re Pollard,¹¹⁵ the Judicial Committee stated that:

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

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

Fitzgerald J, concurring, stated:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unsatisfactory Answering in Bankruptcy Proceedings

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

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

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

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

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

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

placed it in a bank outside the State”.¹⁴⁸

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

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

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

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

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

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

CHAPTER 3: SCANDALISING

Introduction

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

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

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

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

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

Offence not Obsolete

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

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

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

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

resurgence of the offence of scandalising:

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

Gavan Duffy J contented himself with the observation that:

Risk of Prejudice to Pending Proceedings not Essential

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

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

The Actus Reus

1. Who can be scandalised?

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

(a) Courts

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

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

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

(b) Judges' conduct in their official capacity

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

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

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

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

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

2. The risk of prejudice to the administration of justice

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

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

3. Mode of publication

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

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

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

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

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

The Court made no order against this defendant.

Types of Scandalising

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

(i) Scurrilous Abuse

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

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

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

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

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

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

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

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

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

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

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

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

(ii) Imputation of Corruption, Bias or Impropriety

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

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

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

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

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

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

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

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

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

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

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

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

Kenny J continued:

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

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

In the Supreme Court, Henchy J stated:

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

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

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

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

O'Higgins CJ said:

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

O'Higgins CJ said:

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

“Nevertheless”, continued the Chief Justice:

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

The Proper Limits of Criticism

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

(i) The notion of legitimate criticism

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

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

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

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

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

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

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

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

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

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

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

(ii) The mens rea element

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

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

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

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

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

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

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

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

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

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

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

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

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

(iii) Justification

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

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

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

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

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

misbehaviour¹³⁴).

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

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

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

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

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

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

(iv) Public benefit

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

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

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

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

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

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

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

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

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

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

He concluded:

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

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

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

(v) Fair comment

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

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

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

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

CHAPTER 4: THE SUB JUDICE RULE

Introduction

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

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

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

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

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

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

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

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

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

The Prejudgment Test

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

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

CRIMINAL PROCEEDINGS

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

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

(a) Encouraging partiality

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

(b) Accused's criminal record or bad character

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