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A rose by any other name…

When the “Evening Herald” published a report in December 2004 about a certain criminal case it would have been hard to foresee the actual consequence of the publication.

The Director of Public Prosecutions took exception to the contents of the report and made application to the High Court to attach the property of the publisher and commit to prison the editor of the Evening Herald.

The High Court declined to grant the orders sought.

The DPP appealed the decision to the Supreme Court. The respondents made rejoinder citing, inter alia, Section 11 of the Criminal Procedure Act, 1993 which reads:

(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.”

A preliminary issue was tried by the Supreme Court on the point as to whether an appeal lay from the High Court to the Supreme Court, given the terms of Section 11 of the 1993 Act.

The term “Central Criminal Court” had its meaning determined by the Courts (Supplemental Provisions) Act 1961. It meant the High Court exercising its criminal jurisdiction.

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.”

In the proceedings in the High Court, the Court accepted the proceedings were criminal. The Court proceeded to apply the standard of proof appropriate to a criminal charge (beyond a reasonable doubt) to the case against the Evening Herald.

The judgments of the Supreme Court accepted that the trial in the High Court had been a trial of a criminal matter.

However, only one judgment found that Section 11 of Criminal Procedure Act, 1993 had the effect of abolishing the right of appeal in the case to the Supreme Court.

Geoghegan J, part of the majority, addressing the central point, and on the interpretation of S. 11 of the Courts (Supplemental Provisions) Act 1961, stated;

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.”

He went on to say;

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.”

This extract is a reference to “the elephant in the room”. Because of the net point before the court, the inherent subversion of the jurisdiction of the High Court in contempt matters, by the stance of the Evening Herald, was veiled but real.

The most significant question in the whole matter and one left unanswered was whether the “contempt jurisdiction of the High Court” could or should continue to be exercised as it has in the past.

There is some difficulty in defining the difference between civil contempt and criminal contempt. Nevertheless, that distinction is clearly recognized in Irish law (The State (Commins) v McRann [1977] IR 78). Speaking generally, criminal contempt is an offence of a public nature, civil contempt is one of a private nature, depriving a party to an action of the benefit for which the order was made.

Contempt of court, in court, is a crime (Petty Sessions (Ir). Act 1851 Section 9). There exist two forms of procedure for dealing with contempt; the ordinary criminal procedure of summons or indictment and the summary jurisdiction of the High Court. Referring to the latter, contempt of court, in all its forms, is, according to O’Higgins CJ, simply outside the mainstream of the substantive criminal law (So characterized by the Law Reform Commission Consultation Paper on “Contempt of Court” at p. 208). This view of O’Higgins CJ was obiter (The State (DPP) v Walsh [1981] IR 412) and is to be contrasted with the view of the majority in that case. The summary jurisdiction referred to is one where, of its own motion or otherwise, the High Court may dispose summarily of an offence of contempt of court. In The State (DPP) v Walsh, the Supreme Court, not accepting, on the facts, the respondents’ claim of entitlement to a trial by jury, accepted that the respondents had, prima facie, a right to a trial by jury. If this view is correct Article 30.3 of the Irish Constitution, which provides that all major criminal prosecutions must be prosecuted in the name of the people and at the suit of the Attorney General or some other authorised person (the Director of Public Prosecutions), indicates the correct procedure to adopt in all cases, with the possible exception of contempt in the face of the court.

By contrast, if the view of O’Higgins CJ is correct, the High Court has a formidable power of investigation, adjudication and punishment based, apparently, on the Constitution, without reference to any other institution or element of the State. (This is a proposition impliedly accepted, it appears, by the judgment of Geoghegan J.)

Given the lack of definition on the issue that jurisdiction can be invoked with drastic effect, in civil proceedings.

In the UK the courts have responded to this situation.

In Dean v Dean, ([1987] 1 FLR 517) Dillon LJ stated;

I have no doubt… that the procedure in contempt is of a criminal nature and that the case against the alleged contemnor must be proved to the criminal standard of proof. That was not a matter for decision in Khawaja… the matter rests on long established practice, probably well before the Bramblevale case… and certainly repeated many times since in this court…”

O’Connor J said in P A Thomas & Co. v Mould (P A Thomas & Co. v Mould [1968] 2 QB 913, [1968] 1 AER 963)

where parties seek the power of the court to commit people to prison and deprive them of their liberty there has got to be quite clear certainty about it.”

In Guildford Borough Council v Smith (1993) Times 18th May, Sedley J commented

I am unable to accept that committal on the motion of an antagonist in civil proceedings is today in any admissible sense the private law right of which older dicta suggest it was. To all intents and purposes it is a form of private prosecution”.

Any irregularity in the proceedings on which an attachment is founded will entitle the prisoner to a discharge (In re Holt, 11 Ch. D. 168; Dan. Ch. Pr. 5 ed. 436). A “contemnor” is entitled to apply to court and be heard on applications to discharge the contempt order for irregularity (Contempt of Court etc.: Oswald 2nd Ed. [1895] p. 197.) A “contemnor” is entitled to apply to court and be heard (Hadkinson v Hadkinson [1952] ; X Ltd. v Morgan-Grampian Ltd. [1991] 1AC 1 at 21; [1990] AER 616 at 627) on applications where he is submitting that he is not or should not be treated as being in contempt. (See Gordon v Gordon [1904] P.163 CA)

No person will be held guilty of contempt for breaking an injunction unless the terms of the injunction are themselves clear and unambiguous (Iberian Trust Ltd. v Founders Trust and Investment Co. Ltd. [1932] 2 KB 87 at 95; P A Thomas & Co. v Mould [1968] 2 QB 913, [1968] 1 AER 963).

All contempts are…cleared after an order of the Court discharging the offender from punishment; e.g. if upon the application of the offender for release from custody that release is ordered, he cannot again be punished for the same contempt (Contempt of Court etc.: Oswald 2nd Ed. [1895] p.193).

Pursuant to the European Convention on Human Rights Act 2003 a person accused of contempt is entitled to have Irish law applied in a manner compatible with the State’s obligations under the provisions of the European Convention on Human Rights. In Harman v United Kingdom, (App. No. 10038/82; 38 D.R. 53) the European Commission on Human rights declared admissible a complaint that the applicant’s conviction for contempt was in breach of Article 7 of the European Convention on Human Rights. Under Article 6 (1) it is provided that

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Harman v United Kingdom
, is authority for the proposition that contempt of court is a criminal offence within the meaning of Article 6 of the European Convention on Human Rights. The European Court of Human rights will inquire whether the tribunal offered guarantees sufficient to exclude such a doubt, (Piersack v Belgium (1982) 5 E.H.R.R. 169 [para, 30]: Incal v Turkey (1998) 29 E.H.R.R. 449 [para. 65]) or whether there are “ascertainable facts” that may raise doubts as to a tribunal’s impartiality.( Hauschildt v Denmark (1989) 12 E.H.R.R. 266 [para, 48]:) In making an assessment of a tribunal’s impartiality, “even appearances may be important”. (Piersack v Belgium (1982) 5 E.H.R.R. 169 [para, 30]: Sramek v Austria (1984) 7 E.H.R.R. 351 [para, 42])