Supreme Court quashes prison order for contempt of court due to lack of separate hearing and legal aid.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[Supreme Court Record No. 135/2016]

Clarke C.J.

O’Donnell J.

McKechnie J.

MacMenamin J.

Finlay Geoghegan J.

Between/

Kevin Tracey

Appellant

-and-

District Judge Aeneas McCarthy

Respondent

-and-

The Director of Public Prosecutions

Notice Party

Judgment of O’Donnell J. delivered on the 25th day of February 2019

1 The facts in this unusual case can be shortly stated. The appellant, Mr. Kevin Tracey, is by now well known to the Irish courts. He

contends that he has been the subject of a victimisation by the legal system, the origin of which he traces to a civil dispute which he

had with a neighbour who is a member of the judiciary. I do not describe the matter in this way either to disparage Mr. Tracey or his

complaints, or give to credence to his allegations. His many complaints must be taken and addressed on their merits in each individual

case in which they are raised. It is, however, necessary to set out this matter in outline, because it is an essential background to the

particular issue which arises in this case.

2 On 31 May 2006, Mr. Tracey appeared before the respondent judge of the District Court on the charge of driving without due care

and attention. The case was listed, as with many such cases in the District Court, on the basis that if it was to be contested, it

could not proceed on that occasion but would be listed for hearing on another day. In those circumstances, the purpose of the

hearing would simply be to ascertain the position of the defendant in the proceedings, whether pleading guilty or not guilty, and in the

latter case to fix a date for the hearing. It appears that Mr. Tracey, however, attended court with an associate, Mr. Owen Rice, and

had, moreover, taken the unusual step of retaining the services of a stenographer. In the event, it does not appear that the

stenographer was present at the time, but again it appears that Mr. Tracey or his associate prepared an account of the brief

proceedings, together with some editorial comment. It appears likely that this must have required the use of a recording device,

without notice to or permission from the court. However, that matter was not raised in evidence in these proceedings, and since this

matter has already generated a number of side issues, it is perhaps desirable not to dwell on this or any other extraneous matter.

3 The ‘transcript’ produced by Mr. Tracey was not seriously challenged, and is accepted to be fundamentally accurate insomuch as it

sets out what was said in court. However, some of the matters are clearly matters of comment or description of events, rather than

an account of the words used. I do not think that these observations can carry any evidential weight. It will be necessary to identify

those matters in due course. Subject to these matters, I am prepared to accept the transcribed account as a broad guide to the

relevant events, which are not in dispute.

4 The proceedings commenced with the judge asking Mr. Tracey to identify himself as the person accused. Having ascertained that

his intention was to plead not guilty, the judge then sought to proceed to put the case in for a date for hearing. The prosecuting

garda sought a date in August. So far, the matter was entirely routine and could have been dealt with in moments. It is well known

that District Courts have very lengthy lists of cases to be dealt with, and there is a premium on being able to process routine matters

efficiently. However, Mr. Tracey then interjected, “I want to make a statement to the court here Judge”.

5 It should be said that no litigant, party, witness, or member of the public has any entitlement to use a courtroom to make

statements. Indeed, since what is said in court is normally the subject of absolute privilege, it is important that what is said is

directed to the issues before the court, and not to other matters. An important part of any judge’s function is to ensure that what is

said in court is relevant to the issue before the court. In this case, by the time Mr. Tracey indicated his desire to make a statement,

that ‘issue’ was the relatively mundane question of fixing a date for a contested hearing of a minor criminal charge. However, Mr.

Tracey said he had asked for a stenographer to be present, which suggested that things were deviating sharply from the simple task

of fixing a date. The judge said, “I am sorry” and then, “this matter is for mention here today, it’s a very simple application to put it in

for a date for hearing”. In this regard, the judge was absolutely correct. Mr. Tracey persisted in saying that he wanted to read out a

statement and the judge said, again correctly in my view, “Ah no, I’m not listening to any statement”.

6 In responding in this way, the judge was not only acting within his jurisdiction, but would probably have had the sympathy and

agreement of any neutral observer, and not least those who were waiting patiently to have their own business dealt with in court.

However, the matter took a further turn when Mr. Tracey then made a reference to “six years of abuse … orchestrated by one of

your colleagues”. The judge tried to control matters. However, Mr. Tracey then made reference to the gardaí and said that he had at

least “twelve summonses, false summonses to court”. He then demanded the name of the person prosecuting. When that prosecutor

refused, Mr. Tracey replied, “You can’t because you’re not the DPP”. Again, he stated that he wanted to make a statement, and was

handing in a statement.

7 At that point, it appears the judge lost patience, and said, “District Court guard remove him from the court please”. In being

removed from court, it might be said that Mr. Tracey was receiving somewhat rough justice, but it was justice all the same. He had

no right to make a statement, or to seek to commandeer the proceedings to make allegations against persons, some of whom at least

were not even present. Insomuch as the case itself was concerned, it was clear that a date would be fixed for hearing at which any

relevant matter would be ventilated. Mr. Tracey was not being excluded from participation in that case, or inhibited in any way in the

defence of it, by his removal from court on this occasion.

8 However, the proceedings took a further turn when it appears Mr. Tracey was being removed from the court by the prosecuting

garda, Garda Deirdre Ryan. Mr. Tracey said, “you’ll certainly hear about this Judge”. He then repeated that comment. It appears that

the garda was trying to pacify Mr. Tracey and said, “come on now, forget about it, you’ve heard the judge” and later, “come on now,

next time”. This was wise advice. At that point, however, Mr. Tracey is recorded as saying “How crooked! And you think you will get

away with this? How crooked you are!”. This statement is not in dispute, but the ‘transcript’ suggests that it was directed “to Garda

D Ryan who was helping propel him to door”. This is clearly not a simple recording of what was said in court. It is an attempt to

suggest, on a central matter, that an allegation of corruption was not being made to the judge to whom the previous comments had

certainly been directed, but rather to a member of An Garda Síochána. This is not a transcription of anything said, and it is not

evidence, since no witness purports to give this account. I will treat it, however, as an indication of what Mr. Tracey now contends

occurred, that is, that the allegation of corruption, while capable of being understood to be addressed to the judge (to whom the

previous comments had been directed, and who, after all, had made the order requiring Mr. Tracey’s removal), was in fact directed to

Garda Ryan. I assume it is also contended that, as such, the comment did not amount to a contempt. For reasons I will shortly

address, it is not necessary to consider and resolve these questions.

9 At this point, the judge said, “bring him back, sorry bring him up, bring him back up here”. Thereafter, the judge said that he was

holding Mr. Tracey in contempt of court and asked, “do you have anything to say with regard to that?”. When Mr. Tracey replied

“no”, the judge sentenced him to seven days’ imprisonment, and adjourned the case to early September. A warrant was issued from

the District Court on the same day recording that, on 31 May 2006, “A person named Kevin Tracey has in open court committed a

contempt of court as follows – by being abusive to the court, and he accused the court of being corrupt contrary to s. 6 of the

Summary Jurisdiction (Ireland)(Amendment) Act 1871”. The warrant directed his committal to prison for seven days. The portion of

the warrant set out in italics above was in handwriting in the original. This perhaps explains why the ‘transcript’ purports to address

the question of the person to whom the statement was directed. Mr. Tracey was then detained. However, Mr. Tracey’s companion,

Mr. Owen Rice, was in a position to immediately swear an affidavit and bring an application before the High Court on the same day

seeking an inquiry under Article 40. It seems, therefore, that the turn of events in the District Court did not, perhaps, take Mr. Tracey

or Mr. Rice completely unawares. On the contrary, in preparing a statement, retaining a stenographer, being accompanied by Mr. Rice,

and procuring a record of the proceedings notwithstanding the absence of the stenographer, it appears that Mr. Tracey came to

court with a view to, or at least contemplating, a dispute. I share McKechnie J.’s scepticism in this regard.

10 In the High Court, Herbert J. refused to order an inquiry on the basis that the complaints made were not about the order for

detention, but rather related to the procedure leading up to it. Nevertheless, he granted leave to bring an application for judicial

review for the following day, 1 June 2006. On that occasion, Herbert J. granted leave to seek judicial review, and granted bail to Mr.

Tracey pending the determination of the judicial review. Mr. Tracey entered into his bail before the governor of the prison. The effect

of all of this is recorded in a note from the Governor of Mountjoy, obtained at Mr. Tracey’s request, recording that he was committed

to the jail on 31 May 2006 at 9.20pm, departed for the High Court the following day, was committed again at 6.50pm, and discharged

on bail at 7.15pm. It is worth observing at this point that, while any deprivation of liberty is significant, if, instead of the flurry of

activity involving the swearing of affidavits, proceedings and hearings, and a night of detention in prison, Mr. Tracey had simply

recognised that the proceedings on 31 May 2006 did not provide a platform for a contentious statement, or if he had even

acknowledged that the words used in court were at least capable of being understood as directed to the judge, and had apologised

for that, then matters would probably not have proceeded further in the District Court on the day. Instead, 12 years later, they are

still the subject of dispute in this court. Indeed, notwithstanding these judicial review proceedings, Mr. Tracey also brought an appeal

against the refusal of an inquiry under Article 40, which appeal was eventually dismissed by this court in 2017.

11 The judicial review proceedings came on for hearing in the High Court. Mr. Tracey represented himself. The grounds advanced by

Mr. Tracey were that he considered he had been denied an opportunity to speak, that he had been denied equal treatment with the

opposing party, and that the court had acted ultra vires in ordering his removal and subsequently committing him to prison. It is

apparent that these contentions were not strong or particularly sustainable grounds, and in a judgment delivered on 6 March 2008,

the High Court (McGovern J.) dismissed the application for judicial review ([2008] IEHC 59). The effect of this was that Mr. Tracey

had to serve the balance of the sentence imposed, which, as events transpired, he did.

12 Mr. Tracey always intended to appeal the order of the High Court, and, at the time, long prior to the 33rd Amendment to the

Constitution which created a new Court of Appeal, appeal lay to the Supreme Court. However, events took a further and very

unfortunate turn. It appears now to be accepted, and certainly was not challenged, that the order of the High Court, which was a

necessary basis for the appeal, was perfected later, but backdated. The effect of the backdating was that, by the time Mr. Tracey

obtained the order, he was technically out of time to lodge an appeal. No satisfactory explanation has been provided for this. It may

have been that there was misunderstanding as to what date should be recorded on the order, or perhaps a desire not to draw

attention to a delay in perfecting any order. But this was entirely unsatisfactory, and particularly unfortunate, given what was by

now Mr. Tracey’s own deep-seated suspicion of the legal system. It should be said clearly that the backdating of orders in this

fashion is not acceptable in any circumstance, and indeed can give rise to much further unnecessary suspicion and contention, as

this case shows.

13 It may of course be said that once that order was in fact obtained, it would have been possible to seek the agreement of the

opposing party for an extension of time, and, in default, to make an application to the Supreme Court for an extension of time within

which to bring an appeal, which would almost certainly have succeeded. If Mr. Tracey had been legally represented, then it seems

likely such a course would have, in all probability, have been taken. However, Mr. Tracey represented himself, and, having sought and

been refused consent to an extension of time, did nothing in this regard for almost eight years, until other appeals were being

advanced. At that point, he brought an application for leave to appeal to this court, together with an extension of time for so doing.

By this stage, it should be said that the appeal was largely moot, because Mr. Tracey had, it appears, served the balance of the

sentence imposed. Nevertheless, in the very unusual circumstances in the case, and no doubt in part because of the unsatisfactory

way in which the High Court order had been dealt with, this court granted an extension of time to appeal on 10 February 2017

([2017] IESC 7). This was a generous approach, and it is unlikely that a represented party would have been treated in the same way.

It is, however, a regrettable feature of human nature that the manifest fairness of this approach is unlikely now to reduce Mr.

Tracey’s sense of injustice at the manner in which these proceedings have been dealt with. If so, this illustrates the importance of

careful compliance with matters of record and the serious consequences that can flow from a casual approach to these matters.

14 This court directed that the sole issue to be considered on appeal was whether “the manner in which a finding of contempt in the

face of the Court was made against [Mr. Tracey] breached his rights under the Irish Constitution, under the European Convention on

Human Rights or under European Union law”. On this appeal, Mr. Tracey represented himself. I mean no discourtesy to him, but it is

necessary to record that both the submissions and papers submitted were somewhat diffuse. However, the Irish Human Rights and

Equality Commission was added to the proceedings as a notice party, and made helpful submissions, which were broadly supportive of

the position of Mr. Tracey in the appeal. Those submissions were also considered in the companion case of Walsh v. Minister for

Justice and Equality, Supreme Court Record No. 68/2017, which was heard at the same time, and in which judgment is delivered

today. In that judgment, I suggested that, in the light of developments in constitutional law, and the jurisprudence of the European

Court of Human Rights, it was important to distinguish between the different procedures necessary for the maintenance of order in a

courtroom, and that, in particular, it was helpful, and indeed necessary, to distinguish between the procedures required when an

order of a disciplinary nature was made (such as removal from the court in order to allow proceedings to be conducted in an orderly

fashion), and, on the other hand, the procedures which would be necessary before a conviction could be entered and a punishment

imposed in the form of imprisonment or a fine. It is possible to summarise the steps open to a court in the following way:-

(a) Where a person is behaving in a disruptive manner, a judge should warn him or her that the court has power to

remove him or her from the courtroom;

(b) If the conduct persists, the judge should explain to the person what it is that he or she has done that is considered

disruptive, and give the person the opportunity of saying anything they wish to by way of explanation, excuse, and

apology, and, if so, an undertaking not to repeat the behaviour in question;

(c) Where an apology and undertaking (and, where appropriate, a satisfactory explanation) is forthcoming, it will normally

be appropriate to take no further steps;

(d) If no apology and undertaking, or satisfactory explanation, as the case may be, is forthcoming, a judge may order the

person to leave the courtroom and, if necessary, direct the removal of him or her from the courtroom. It may be

necessary to arrange for the attendance of the gardaí for this purpose;

(e) Where there is more general disturbance, a judge may order that the court is cleared. While any court will be

reluctant to take this course, it may nevertheless be necessary. In such cases, members of the public may still be

entitled to enter the courtroom, if they agree to sit quietly during proceedings. Bona fide members of the media and

members of the legal profession should be permitted to remain on the same basis.

(f) Where the person engaging in disruptive behaviour is a party to the proceedings, a court should be correspondingly

slow to take the step of removing them from the courtroom, particularly when they are dealing with the substance of the

dispute, rather than procedural issues such as those involved in the present case. Some issues may require the presence

of the party, and in other cases it may be preferable to adjourn the proceedings. Nevertheless, the judge may still order

the removal of a persistently disruptive party. In such circumstances, the party should be informed that arrangements will

be made to make available a copy of the relevant extract from the digital audio recording (“D.A.R.”), if that is possible. If

facilities are at hand to allow the person to continue to observe and participate remotely through videolink, these may

also be availed of.

I should emphasise at this point that this is not a checklist to be followed slavishly, departure from which will lead inevitably to judicial

review. In the first place, the law is concerned with the minimum required rather than the maximum desired, and in many cases it will

be a counsel of prudence not to respond immediately to every comment, and to take steps such as warnings, short adjournments of

the sitting, and more patient explanations before intervening even to this limited extent. On the other hand, the summary nature of

the proceedings is designed to allow the court to proceed with the hearing of matter before it in the atmosphere to which all litigants

and participants are entitled as part of the constitutional guarantee of the administration of justice. It should not be therefore

assumed that orders made in this respect can routinely be challenged, but if such an order were to become the subject of judicial

review by a superior court, the test to be applied should consider the overall proceedings, the background facts, and the atmosphere

of the hearing, and in those circumstances consider whether fundamental fairness was complied with. Up to this point, it should be

said that the court is not exercising a contempt jurisdiction, and the making of an order for removal does not involve a finding of

contempt, or require the procedural safeguards necessary before the trial and conviction of a criminal offence. However, a court may

consider the particular conduct so serious as to merit proceedings for contempt which may result in a punishment whether by way of

fine or imprisonment. If so, the following steps could be taken:

(g) Where it is considered that the conduct at issue is serious enough, whether in itself, because of the persistence of

the behaviour, or because of the involvement of others in a concerted way, then a court may consider that it is

appropriate to proceed with a separate hearing of a charge of contempt, which, if established, may lead to the imposition

of a punishment, whether by way of a fine or a period of imprisonment;

(h) Where a court considers it necessary to invoke the contempt jurisdiction, the person concerned should be warned,

told in simple terms of the conduct considered capable of constituting contempt, and given the option of obtaining legal

representation (including legal aid if their means are insufficient);

(i) Although the hearing can proceed immediately where lawyers are available (or, if having been offered the opportunity

of representation, the individual refuses it) in some cases it may be necessary for the hearing to be postponed for short

period to allow for the arrangement of legal representation. The adjournment may also allow a time for reflection. In any

event, the person should be informed clearly of the time and date fixed for the contempt hearing, and the hearing should

proceed within a short period of the original incident;

(j) During the period of adjournment or deferral, the immediate disruption of the business of the court can be addressed, if

necessary, by the removal of the person from the court. Furthermore, the court has the power ancillary to the contempt

jurisdiction to detain the person temporarily pending the hearing. However, this power should be exercised with restraint,

and the period of detention should not extend to more than a day, normally during the day on which the incident

occurred;

(k) The hearing can be straightforward, but the accused person must be given a fair opportunity of defending himself or

herself. Since this is in its nature a criminal offence, even if a unique one, the criminal standard of proof beyond

reasonable doubt must be applied. Furthermore, there is the same right of appeal as lies from any other decision of the

court. However, given the availability of the D.A.R., there should be little room for dispute as to what was said, and it will

be unlikely, therefore, that there could be any need to seek to have the judge (or indeed any other court officer) called

as a necessary witness and in most, if not all, cases, it will be inappropriate to seek to do so. Production of the extract

from the D.A.R., if required, by the clerk or registrar is all that would be necessary to establish the basic facts in most

cases. It would then be a matter for the accused person to offer representations in their defence, whether by way of

submissions as to whether the conduct amounts to contempt, or, if so, by offering an explanation or apology, or raising

other matters which might be considered in mitigation. This may, if necessary, include the giving of evidence.

(l) When the alleged contempt consists of allegations against a judge personally in some respect, so that there could be a

well-founded apprehension of the appearance of unfairness if the judge proceeded to deal with the contempt issue, it will

be necessary to have the issue heard and determined by another judge, possibly via a referral to the Attorney General,

who may bring the matter before the High Court. Once again, the availability of the D.A.R. should mean that this issue

should not involve a dispute as to what was said in court. The judge should not be a necessary or, indeed, an appropriate

witness in most, if not all, cases.

(m) The criminal standard of proof must apply, and the decision should be capable of appeal, where appeal lies from the

decision of the court. Where the contempt is alleged to occur before a court of final appeal, or in respect of which appeal

is limited, the court may proceed, however it retains the option of directing that the matter be heard in the High Court,

which has full and original jurisdiction in this regard.

15 The original legal basis for the District Court’s contempt jurisdiction is to be found in the Summary Jurisdiction (Ireland) Amendment

Act 1871 (“the 1871 Act”). Section 6 of that Act provides:

“If any person shall wilfully insult any justice or justices sitting in any court within the police district of Dublin Metropolis,

or shall commit any other contempt of such court, it shall be lawful for such justice or justices, by any verbal order, either

to direct such person to be removed from such court, or to be taken into custody, and at any time before the rising of

such court by warrant to commit such person to gaol for any period not exceeding seven days, or to fine such person in

any sum not exceeding forty shillings.”

In respect of District Courts outside the Dublin Metropolitan District, a similar provision is to be found in s. 9 of the Petty Sessions

(Ireland) Act 1851 (“the 1851 Act”).

16 This statutory regime was necessary, because, as a matter of history, the old Petty Sessions courts were not regarded as courts

of record, and therefore did not possess an inherent power of punishment for contempt at common law. However, the District Court is

a court established under the Constitution for the administration of justice, which, since 1971, has been a court of record (see s. 13

of the Courts Act 1971). As a court of record, it has the common law power in relation to contempt. The Victorian legislation, in

recognising that a contempt jurisdiction extended in the first place to orders directing the removal of a person from court, is

prescient, and it appears consistent with the dictates of both the Constitution and the European Convention on Human Rights, as

interpreted herein. However, as submitted in this case, insomuch as it suggests that the person may be committed to jail at any time

on the day of the incident, it may be difficult to operate consistently with the guarantee of fair procedures, as outlined above.

Accordingly, where a District Court acts to have someone removed for the purpose of maintaining order in court at a particular

hearing, the 1871 Act or the 1851 Act, as appropriate, provides sufficient jurisdiction and authority, but where it is considered

necessary to proceed to a full hearing on another day in circumstances where, if established, a court may consider imposing a

punishment, including a fine or committal to prison, it is appropriate to proceed under the common law jurisdiction. It is the case that

the law in relation to contempt of court is under review, and it would be highly desirable if the opportunity was taken to place the

contempt jurisdiction of all courts on a sound statutory basis, consistent with the requirements of fairness and the constitutional

obligation to administer justice.

17 In the light of the above structure, it is necessary to consider the facts of this case. While matters proceeded initially with a

minimum of discussion or explanation, there would, in my view, have been no invalidity in the steps taken if what was concerned here

was solely the removal of Mr. Tracey from court. He had no right to demand to make a statement, no right to persist in attempting to

do so, and no right to make allegations against the gardaí (if they were indeed the object of his comments) on the occasion in

question. What occurred must be viewed also against the fact that all that ought to have been involved on the date in question was

the fixing of a date for the hearing, which would ensure that Mr. Tracey had his day in court on this issue in any event. Furthermore,

it seems clear that he understood the manner in which the proceedings were developing, as well as the likely consequence of his

behaviour, and may indeed have anticipated it. While another District Court judge, or the same judge in different circumstances, might

have been slower to react, I do not think the court here acted in excess of the broad discretion it had, up to that point.

18 However, when the judge ordered that Mr. Tracey be brought back, the situation changed, since it was now possible, indeed

likely, that punishment could be imposed. In those circumstances, more elaborate procedures were called for, and a separate hearing

was necessary. It may be that if such a hearing was accorded to Mr. Tracey, the outcome may have been the same, or indeed worse

for him, but the issue raised here is the fundamental fairness of the procedures which were followed, and in my view he was entitled

to have a separate hearing, the possibility of obtaining legal assistance, and, if appropriate, legal aid. He should also have been

informed of his entitlements in this regard. I share the scepticism expressed by McKechnie J. in relation to the events in this particular

case, but the requirement that procedural fairness be observed in all cases must be applied here, even if this case does not reflect

particularly well on the applicant, or poorly on the respondent. Accordingly, given the importance of both fair procedures and the

constitutional value of personal liberty, and notwithstanding the fact that the order is now spent, I would grant an order of certiorari

quashing the order of the respondent made on 31 May 2006 whereby Mr. Tracey was committed to prison.