Supreme Court dismisses appeal on contempt conviction, upholding proportionality of imprisonment over exclusion order.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[Supreme Court Record No. 68/2017]

Clarke C.J.

O’Donnell J.

McKechnie J.

MacMenamin J.

Finlay Geoghegan J.

Between/

David Walsh

Appellant

-and-

The Minister for Justice and Equality, the Director of Public Prosecutions,

the Courts Service, Judge Alice Doyle, and the

Governor of Cork Prison

Respondents

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

Introduction

1 At a hearing at the Circuit Court in Waterford on 31 May 2016, the appellant, David Walsh, was convicted of contempt

of court and sentenced to two weeks’ imprisonment. On 2 June 2016, a third party, Mr. Beades, sought an inquiry under

Article 40.4 of the Constitution on Mr. Walsh’s behalf. Barrett J. made an order for an inquiry. Unusually, and in the light of

the circumstances, Noonan J. then made an order for the production of the digital audio recording (“D.A.R.”) of the

hearing in the Circuit Court. The inquiry proceeded before the High Court (Humphreys J.) on 3 June 2016, following which

he made an order directing that the appellant be released from custody. A written judgment ([2016] IEHC 323) was

delivered on 13 June 2016. The essential ground of the High Court’s judgment was that, while the learned judge

considered that the appellant was undoubtedly guilty of contempt of court, the contempt was of a “common or garden”

variety that could have been dealt with by less drastic methods, such as an order of exclusion from the courtroom. The

imposition of a term of imprisonment was therefore disproportionate, and the detention accordingly unlawful.

2 The order of the High Court was reversed by the Court of Appeal in a judgment delivered on 25 March 2017 ([2017]

IECA 106). Mahon J. (with whom Birmingham and Edwards JJ. agreed) confirmed that the court had listened to the D.A.R.,

and had concluded that, in all the circumstances, the Circuit Court judge’s order was reasonable, proportionate and

lawful. Accordingly, the Court of Appeal directed that the appellant be taken into custody to serve the 14-day sentence

imposed upon him with credit for the period already served, but also stayed the order for seven days to allow the

appellant to attend before the Circuit Court judge to purge his contempt. It appears the appellant took no steps to do so,

and therefore on 30 March 2017 the Court of Appeal directed that the warrant should issue. On 5 May 2017, this court

granted leave to appeal on the sole issue of whether the proceedings in the Circuit Court on 31 May 2016 were in

accordance with fair and appropriate procedures before the appellant was found in contempt of court ([2017] IESCDET

53). The court made it clear that it was not suggesting that there had been any breach of fair procedures, but rather

that it was appropriate that the matter be the subject of further consideration.

3 Before addressing the factual and legal issues in this case, it is, I think, necessary to make some observations on the

procedure adopted, in order to establish the focus for the legal issues. These proceedings come before the Superior

Courts as an inquiry under Article 40.4 of the Constitution, grounded, moreover, on an affidavit of a third party, Mr.

Beades, who was not present in court on the day in question and accordingly cannot offer any evidence in relation to

what occurred. It is not suggested that he has any prior connection with the case, or knowledge of the underlying

circumstances. While the appellant in this case was undoubtedly in custody at the time of the application, I nevertheless

have some doubts as to the appropriateness of Article 40 as a vehicle for addressing the appellant’s complaints (or at

least the complaint upon which he appears to have succeeded in the High Court relating to the proportionality of his

sentence), particularly when they are based on an evidential foundation that is necessarily unsatisfactory. An appeal

would have provided an opportunity for a full review of the matter, including the sentence imposed, where, moreover, in

order to succeed, the individual would merely have had to show the sentence was excessive, rather than attempt to

discharge the considerable burden of showing that it was so disproportionate as to render the detention unlawful.

4 Here, the court has available to it both the transcript of the proceedings in the Circuit Court on 31 May 2016 and a

copy of the D.A.R. Furthermore, solicitor and counsel appeared for the appellant pursuant to the ad hoc voluntary scheme

established by the Bar Council and Law Society for representation in the Supreme Court and who made helpful

submissions. The case was also heard in conjunction with another appeal concerning the law of contempt (Tracey v.

McCarthy, Supreme Court Record No. 135/2016) in which the Irish Human Rights and Equality Commission (“IHREC”) made

submissions, which, it was agreed, could also be considered for the purposes of this case. These developments are

welcome. They mitigate somewhat the difficulties created by the limited (and indirect) evidential record, and have allowed

the court to address the important issues raised against a more detailed and comprehensive background than might have

been the case. Finally, the determination, in granting leave to appeal in this case and in Tracey makes it clear that the

focus of the appeal is not the proportionality of the order of committal, but rather the fairness of the procedures which

preceded it, which is properly a matter capable of being raised on an application under Article 40. However, it remains an

important point that an application for an inquiry under Article 40 should not be treated as a form of appeal from an order

of committal for contempt.

5 The species of contempt of court of which the appellant was found guilty was contempt in the face of the court (in the

Latin phrase, contempt in facie curiae): that is, contempt occurring in the court room itself or in its precincts and

disrupting the court proceedings. Accordingly, it is apparent that this case does not involve consideration of the well-

established law relating to civil contempt. The old-fashioned term, the Latin tag, and the fact that much of contempt in

facie curiae involves disruptive behaviour, can lead to suggestions that punishment for criminal contempt in such

circumstances is an excessively authoritarian and pompous response to behaviour which is encountered in everyday life in

public meetings, university lectures, and even schoolrooms, where the requirement to maintain order does not usually give

rise to the possibility of an immediate committal to prison. This, however, is in my view the wrong starting point for

understanding the law of criminal contempt as it applies in this context, and runs the risk of leading to the wrong

conclusion.

6 No-one, not even a wholly successful party vindicated by the outcome of proceedings, can pretend that going to court

is an enjoyable experience. Apart from the stress and anxiety involved in having the merits of a person’s actions, conduct

and behaviour debated, sometimes challenged, and adjudicated upon, the courtroom also imposes certain requirements of

tolerance on all participants which they can find extremely difficult. Judges must listen to arguments and evidence that

strain both patience and credulity. Witnesses must submit to cross-examination, and may sometimes hear submissions

that reflect upon their credibility, or contrary evidence which they believe to be misguided or even deliberately false.

Judges may sometimes be required to give decisions they find uncongenial and contrary to their personal views, and

lawyers and litigants must accept and abide by decisions with which they may profoundly disagree. This is not a complete

catalogue of all the difficulties encountered in a given day by anyone attending court, but it leads to a recognition that it

is central to a court’s capacity to administer justice that it should be capable of maintaining order. This in turn allows

competing claims - sometimes highly charged, and always of importance to the participants - to be ventilated, fairly and

dispassionately considered, and adjudicated upon. As was said long ago, of all the places where law and order must be

maintained, the first place is in the courtrooms themselves. The administration of justice demands of parties that they

trust this system and accept its outcomes. Parties are required to accept the decision of the court on the case itself,

and on intermediate issues, even when they strongly disagree. Most individuals recognise that this is a price that must be

paid, because it is an unavoidable component of the administration of justice. That is the idea, and perhaps the ideal,

that disputes between parties (and indeed between parties and the State itself) can be submitted to an independent

adjudicator where the outcome is to be determined by reason and law alone, rather than the physical or financial strength

of the parties, their position, status, or influence, or their popularity or lack thereof in public discourse or on social media.

A courtroom should provide an opportunity for any person to have their say on exactly the same terms as every other

person coming to court, whatever their position, class, race, religion, sexual orientation, wealth, reputation, or political

affiliation. It provides an opportunity, moreover, that any dispute will be determined only on the evidence adduced and

argument advanced in that courtroom, and will be resolved by a decision pronounced in public. This ideal is not easily

realised, but an essential component in achieving it is that a courtroom is, as it were, a safe space for everyone who

comes to it to be heard, in particular perhaps the victimised, the marginalised, and the weak, those who are shy, reticent

and often overlooked, and those temporarily or permanently unpopular and to whom no one else is obliged to listen fairly

and dispassionately.

7 The disruption of proceedings, the refusal to accept court rulings, and an insistence on continuing to speak when a

matter has been determined by the judge, should not be mischaracterised as speaking truth to power, or merely

challenging authority. A judge sitting in a crowded courtroom has little power other than respect for the law itself. The

refusal to accept rulings and decisions, the constant interruption of court proceedings, and the making of offensive

interjections and comments is at best rude and inconsiderate to all other court users who are obliged to accept the

necessity for calm in court proceedings, but more often amounts to simple bullying. When carried out in a concerted

manner, it is, and is often intended to be, menacing and intimidatory. These are serious concerns which should not be

ignored or lightly dismissed. Disruption of proceedings attacks the very essence of a fair hearing which it is the court’s

obligation to provide, and every litigant’s right to obtain.

Facts

8 The 31 May 2016 was not the first time that Mr. Walsh was in court in relation to this matter. The proceedings,

however, did not involve him. They were between the Bank of Ireland and Ms. Feana Walsh, his sister. The proceedings

were an application by the Bank of Ireland in respect of a mortgage which it had entered into with Ms. Walsh. There was

an outstanding sum of €68,145.34 on the mortgage. Arrears had built up on the mortgage in the sum of €19,760. The last

payment in relation to the mortgage had been made three and half years previously, in December 2012. The property

itself was valued at only €75,000. None of this was in dispute, or has been disputed since. Ms. Walsh’s case, it appears,

was not the only case listed for that day. The courtroom was crowded, and the atmosphere tense and somewhat unruly.

9 It appears from the transcript that this matter had been in court on three previous occasions. On the first occasion in

March 2015, Mr. Walsh (the appellant) had appeared and sought to contend that he was entitled to address the court on

his sister’s behalf, claiming a formal appointment for that purpose. It is very clear law that a party in this jurisdiction may

represent themselves or be represented in court by a lawyer qualified to appear in court. A litigant in person may be

assisted by a McKenzie friend, who may with the person take notes and offer quiet suggestions. However, for reasons of

policy which are shared by very many jurisdictions, and upon which it is not necessary to expand, there is no entitlement

for an unqualified third party to represent a litigant in court. Accordingly, the judge was fully entitled in law to refuse to

hear Mr. Walsh, and to proceed to hear the application then and there. However, the court permitted Mr. Walsh to make

representations as to his entitlement to represent his sister, and then ruled that he could not do so, indicating that his

sister should either be represented, or would have to appear herself. No one, either then or since, has suggested this

ruling was wrong, or sought to appeal it or have it reviewed. The court then adjourned the matter to July 2015, to allow

for Ms. Walsh to attend in person, or to arrange representation. On that occasion, it seems there was no appearance, but

the matter was further adjourned to May 2016. On that day, the case appeared before a different judge, Judge

O’Donoghue. That judge, it appears, reiterated that Ms. Walsh, the defendant, should appear in person, and adjourned

the case to 31 May 2016. Letters were written to Ms. Walsh to that effect. None of this is disputed.

10 On 31 May 2016, however, Ms. Walsh did not appear, and was not represented by anyone with a right of audience.

Instead, Mr. Walsh once again sought to argue her case. Nothing was said at the outset of the application, but at an

early point, a reference was made to the directions of Judge O’Donoghue that Ms. Walsh should attend on that date. At

this point Mr. Walsh interjected:-

“Objection your honour, that wasn’t an order. I’m sorry about that, your honour, but it wasn’t (sic) Order.”

At that point, the judge told him that he had no right of audience before the court. Mr. Walsh insisted that he did, and

continued:-

“Clearly the Power of Attorney Act clearly states that plus the Constitution says that only the Oireachtas has the solely

exclusive of power to make laws of the State. I do have a right. My sister is unable, I have medical evidence there which

was presented to the court to say that she is unable to defend herself. So this court is doing an injustice to my sister

when they don’t allow me as her brother to defend her.”

11 The judge asked for the power of attorney and she rose to consider it. It should be said at this stage that no evidence

was presented suggesting that Ms. Walsh was too ill to represent herself, or was otherwise incapable of doing so. Nor has

it been suggested in these proceedings, at any stage, that Mr. Walsh either had a general right to represent his sister, or

that there were particular circumstances giving him an entitlement to do so. Nevertheless, the judge did consider the

terms of the power of attorney, and after a short adjournment, correctly informed Mr. Walsh that he could not represent

his sister, although the power of attorney could permit him to appoint a solicitor for her, if he wished. This prompted Mr.

Walsh to protest that the court had no jurisdiction. Again, it should be said that there is no legal basis for this contention.

He continued to interrupt and disrupt the proceedings, maintaining that they could not proceed:-

“You can’t proceed, there is no jurisdiction. You can’t have a court without jurisdiction there is no competent

witness and this woman [counsel for the bank] is standing up there now telling you what is blatant lies because she

is disobeying the court order.”

Again, the court rose briefly, it appears, simply to allow the situation to calm down.

12 When the case resumed, there was commotion in the courtroom, as is evidenced by the transcript. An unidentified

speaker asked everyone to leave the courtroom “to cool down a small bit”. That request went unheeded, and there was

further disruption. Mr. Walsh repeated his assertion that the court had no jurisdiction. The judge tried to tell him that the

court had, but she was interrupted, repeatedly, by Mr. Walsh. The proceedings reached a low point when the judge,

having explained to Mr. Walsh that he had no standing or entitlement to address the court, was again interrupted by Mr.

Walsh’s assertion that “YouTube says I have and so does the law”. The appellant continued to interrupt the judge and to

assert he had “jurisdiction under public Constitution”. The judge told him that if he did not desist from interrupting the

court she would have to find him in contempt. The appellant responded, “fine if you want to make me in contempt make a

charge and bring a separate case against me but you have no jurisdiction to hear this case. This barrister is misleading

the court she is telling lies”. There were further interruptions and interjections during which Mr. Walsh sought to have the

judge recuse herself from hearing the case. Then he claimed he was entitled to rescind Ms. Walsh’s contract with the

bank, purported to do so, and asserted that this deprived the court of any entitlement to determine the dispute. Again,

the judge warned him that a continuation of his interruptions would result in him being found in contempt of court. Mr.

Walsh responded, “fine, do that. Take me to the court and come in as a witness. There is no jurisdiction for this case

here today”. It should be said that it has not been suggested that there was any justification in law or fact for any of the

matters asserted by Mr. Walsh in these exchanges. When counsel for the bank attempted to resume the proceedings, Mr.

Walsh again asserted that she was telling lies to the court. At that point, the judge found him in contempt and directed

that he be removed from the courtroom.

13 However, that was by no means the end of the proceedings. There was commotion in court. As Mahon J. in the Court

of Appeal observed, the atmosphere was near anarchy. The judge rose to allow the situation to calm down. She

attempted to resume the hearing of the application, and was interrupted by a number of individuals. Again, the judge

warned them that they were at risk of being found in contempt of court. One speaker maintained that he did not need

permission because, as he said, “I am a man. I am a man”. Another had said, “I have a right to talk here today”. When

the judge addressed a person at the back of the court and asked them to identify themselves the speaker said, “I have

many names”. The judge said, “well I am speaking to you, you know who you are now”, to which the speaker replied, “my

son calls me father and me mother calls me son, what name exactly do you want?”. Eventually, the judge found another

person to be in contempt of court and directed they too be removed from the courtroom. This provoked further

commotion, with a female speaker shouting, “you have blood on your hands, lads”. Subsequently, the judge resumed the

hearing of the case, and, being satisfied that the matter had been established (including service on Ms. Walsh), made an

order for possession. However, she granted a lengthy stay of eleven and a half months, and refused to order costs.

Plainly, these were extremely difficult circumstances in which to conduct a hearing. Nevertheless, it has not been

suggested that there was any error in the manner in which the judge proceeded, or that the outcome was not manifestly

fair in the circumstances to Ms. Walsh, who, it should be recalled, did not participate in the proceedings.

14 The judge then directed that Mr. Walsh be brought back to court together with the other individual, a Mr. Kavanagh,

who also had been removed. She indicated that she would deal with both matters after the rest of the list had been

disposed of.

15 When the matter of contempt was addressed, the transcript records that the judge offered legal aid to Mr. Walsh on a

number of occasions, which he refused. He repeated that he did not want a solicitor. The judge repeated this offer to Mr.

Kavanagh in Mr. Walsh’s presence, and he too said that he did not want to avail of a solicitor. Mr. Walsh then asked if he

was being held in criminal contempt in a civil case, and the judge confirmed that this was so. He continued to interrupt

the judge. When the judge then said that she was finding him to be in criminal contempt, there were further outbursts. At

that point, Mr. Walsh said, “no, I have no, no please lads, I have no issue”. When the registrar called for silence, Mr.

Walsh continued, “I have it with me if the court wants to make a charge against me for they believe to be criminal

contempt by all means make the charge, but let’s have a case … this is of a judge, get in the witness box and swear on

the bible and let’s have the case because I have issues surrounding whether this court has jurisdiction over me because

there was no competent witness in the case …”. The judge then said that she had made her orders and found him in

contempt of court. She observed there were two solicitors in court “ready willing and able to defend you in any way”. Mr.

Walsh continued to interject and interrupt. The judge explained in detail why it was she was finding him to be in contempt

of court. She asked him had he anything to say before she proceeded to sentence him. In particular, she asked him

whether he wanted to apologise. Again, Mr. Walsh interrupted, “I would apologise to anybody because I am man enough

to do it, but I don’t know where I’ve done wrong. That’s the problem”. The judge then explained to him again why he was

being found in contempt. Mr. Walsh interjected. Ultimately, the judge found him in contempt and sentenced him to two

weeks’ imprisonment. Mr. Kavanagh was then dealt with. He was asked if he was sure he did not want a solicitor. He

suggested he did not understand what the court was saying and that he would apologise to the court, saying, “but I do

believe I stood up in honour”. Having been asked to confirm that he apologised, he confirmed that he did, and the judge

told him he was free to go, but would not be allowed to persist as he had behaved that day. After a further break, Mr.

Walsh was brought back into court. He had asked about the possibility of an appeal. He was told by the judge that the

position was uncertain in relation to appeal, but that he was nevertheless entitled to get legal advice. She also offered

him a final opportunity to apologise for his behaviour. Mr. Walsh maintained he had done nothing wrong. At that point, he

was removed from court and taken into custody, which in due course gave rise to these proceedings.

The law in relation to contempt in facie curiae

16 The justification for law of contempt is as old as the law itself. Some of the history of the procedure is traced in the

judgment delivered by McKechnie J. A courtroom cannot be a forum where the rule of law is applied unless those rules of

law which promote a calm atmosphere and the orderly resolution of issues are maintained. That atmosphere of order may

be taken for granted in most courts on most days, but it cannot be achieved without the possibility, even if rare, that

persistent and deliberate breach will attract a serious sanction. The enforcement of order must be immediate. The

commencement of separate proceedings to be heard by a different court at some later date cannot be an effective way

to deal with the immediate issue. Furthermore, in serious cases of deliberate breach, there would be a risk of endless

replication of proceedings if a contemnor proceeded to disrupt each of the proceedings in turn. While this may be only a

possibility, it is by no means unrealistic, as the experience of any modern Irish courtroom will show. If the justice system

could not immediately protect the courtroom proceedings from disruption, it would become correspondingly difficult not

just to transact the business of the court, but also to persuade litigants, witnesses, and all others who have to have

recourse to the courts system to trust it and to continue to abide by its decisions, even when they disagree with them.

Yet that acceptance of outcomes is central to any civilised society based on the rule of law. These considerations were

set out in the observations of the Law Reform Commission of Canada which were quoted with approval by the Law Reform

Commission in its report entitled Contempt of Court (L.R.C. 47-1994), at para. 4.7:¬-

“First, the judge must remain in full control of the hearing. If it is interrupted by misbehaviour in the court-room, he

must take steps to restore order as quickly and effectively as possible. The time factor is crucial: dragging out the

contempt proceedings would mean a lengthy interruption to the main proceedings, thereby paralysing the court for

a time, and indirectly impeding the speed and efficiency with which justice is administered.

Secondly, the judge's power to control the court proceedings would be weakened if contempt proceedings were

heard by another court. The second court would have to hear evidence about the act, with a judge before whom

the disruption had taken place as principal witness. And should the accused again misbehave in court, the contempt

case itself would have to be referred to still another court, and so on. The administration of justice could be

brought to a complete standstill.

Accordingly, to ensure the effective administration of justice, the presiding judge must remain in control of the

proceedings. He must therefore be able to use the classical summary procedure for cases of misbehaving in court.”

17 There are difficulties, recognised in many jurisdictions, in reconciling the features of the summary jurisdiction for

contempt with modern developments in the law more generally. While few people are actually found guilty of contempt in

the face of the court, and fewer are committed to prison for a period of more than days, nevertheless the fact that the

penalty for a criminal contempt is potentially unlimited has led to the argument that it is a non-minor offence giving a right

to trial by jury under Article 38 of the Constitution. In State (D.P.P.) v. Walsh [1981] I.R. 412, the Supreme Court, in a

number of judgments giving different reasons, held that the High Court had the power to try the matter summarily. It has

also been argued that, since it is nominally a criminal matter (albeit an unusual one) which can lead to a loss of liberty, a

prosecution for criminal contempt necessarily gives rise to an entitlement to be legally represented, and, in cases where

the party cannot afford a lawyer, to have legal aid consistent with the entitlement identified in State (Healy) v. Donoghue

[1976] I.R. 325. Furthermore, the specific field of contempt in facie curiae was the subject of the decision of the

European Court of Human Rights (“ECtHR”) in Kyprianou v. Cyprus (App. No.73797/01) (2007) 44 E.H.R.R. 27, which

suggests that a court cannot be the trier of fact where the allegation of contempt involves comments directed against

the presiding judge or judges, or which may be thought to be personally offensive to them.

18 Finally, there has been some discussion, (touched on in the extract from the Law Reform Commission of Canada

publication quoted in the Law Reform Commission report cited above) as to whether, if separate proceedings are

commenced, the original judge would become a necessary or even a compellable witness. These and other issues are now

routinely discussed on social media, and, indeed, as the evidence in this case perhaps suggests, information is in

circulation in that context which is not always accurate. In the present case, it is possible to see traces of different legal

arguments in the exchanges in the transcripts. Certainly, it appears from the exchanges that Mr. Walsh was not

encountering the concept of contempt of court for the first time when the proceedings on 31 May 2016 took the turn

they did. It is the case that the disruption of proceedings by the repeated advancement of contentions in relation to the

nature of the contempt power, which appear imperfectly comprehended and are certainly not easily comprehensible, is an

increasing phenomenon. There are, however, undoubted conceptual issues in seeking to reconcile the ancient law of

contempt with procedures now routinely required in modern criminal proceedings. But the difficulty of accommodating

some of the aspects of the ancient law of contempt with recent developments in the law should not lead to the

conclusion that the law of contempt is an anomaly which should be removed from the law, or quietly abandoned.

19 The power to fine or commit a person to prison for contempt in facie curiae serves at least two interlinked purposes.

The first, and most immediate, is the maintenance of order in the particular courtroom. The second is the punishment of

persons who simply refuse to obey the orders of the court, and seek to disrupt proceedings and prevent them from taking

place in the atmosphere of calm objectivity which is most conducive to a fair hearing. Obviously, these objectives are

interconnected: pursuit of that latter will make achievement of the former more likely. Traditionally, therefore, the

justification for a fine or imprisonment for contempt was seen as inextricably linked to the requirement for an immediately

effective maintenance of order in a courtroom. However, the decision of the High Court in this case, reflecting in this

regard some academic commentary, raises the possibility of a distinction between the two approaches. In particular, the

High Court judge considered that it was not necessary, and was therefore disproportionate, to order the imprisonment of

the appellant to maintain order. On this approach, it followed that the detention was unlawful. It will be necessary to

consider that reasoning in a little more detail later in this judgment, but for present purposes, the fact that a distinction is

made between removal from court and punishment for contempt is significant.

20 The IHREC draws a similar distinction in its submissions in Tracey v. McCarthy, Supreme Court Record No. 135/2016.

Building on the case law of the ECtHR, Ms. Lacey S.C. suggests that the immediate disciplinary function may be achieved

by orders excluding the offending party from the courtroom and even going so far as providing for a short detention and

the imposition of a not insignificant fine. It is submitted that, as a matter of the law of the European Convention of

Human Rights (“ECHR”), such measures do not constitute punishment for a criminal offence. Accordingly, they do not fall

to be analysed under the terms of the law applicable to Article 6 ECHR, and do not attract the procedural guarantees of

that Article. It is suggested that a similar analysis can be adopted as a matter of Irish constitutional law, and the common

law.

21 The IHREC points out that in a series of cases the ECtHR has addressed the power of courts to maintain order, and in

doing so has held that certain measures taken by courts for that purpose fall outside the scope of Article 6 ECHR, and

therefore the procedural requirements of that Article. In Ravnsborg v. Sweden (App. No. 14220/88) (1994) 18 E.H.R.R. 38,

the court addressed certain disciplinary sanctions including a small fine and exclusion from the courtroom, and even

detention in custody during the sitting of the court. At para. 34 of its decision, the court said:-

“Rules enabling a court to sanction disorderly conduct in proceedings before it are a common feature of legal

systems of the Contracting States. Such rules and sanctions derive from the indispensable power of a court to

ensure the proper and orderly functioning of its own proceedings. Measures ordered by courts under such rules are

more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal

offence. It is, of course, open to States to bring what are considered to be more serious examples of disorderly

conduct within the sphere of criminal law, but that has not been shown to be the case in the present instance as

regards the fines imposed upon the applicant.

For these reasons the Court reaches the conclusion that the kind of proscribed conduct for which the applicant was

fined in principle falls outside the ambit of Article 6. The courts may need to respond to such conduct even if it is

neither necessary nor practicable to bring a criminal charge against the person concerned.”

22 In Putz v. Austria (App. No. 18892/91) (2001) 32 E.H.R.R. 13, the court addressed measures in the Austrian Code of

Criminal Procedure concerning responsibility for keeping order at hearings, which permitted quite significant sanctions.

Nevertheless, the court was prepared to hold that such matters fell outside Article 6 ECHR. At para. 37 of the judgment,

the court said:-

“The Court notes that Article 235 of the Code of Criminal Procedure concerning responsibility for keeping order at

hearings provides for the imposition of a fine not exceeding ATS 10,000 or, where essential for maintaining order, a

custodial sentence not exceeding eight days. …

In this respect, the Court notes a number of dissimilarities between the instant case and the Ravnsborg case, in

which the amount of the fines could not exceed 1,000 Skr and the decision to convert them into custodial

sentences required a prior hearing of the person concerned. This finding, however, is qualified by three features of

the instant case: firstly, as in the Ravnsborg case, the fines are not entered in the criminal record; secondly, the

court can only convert them into prison sentences if they are unpaid, and an appeal lies against such decisions, as

it does against custodial sentences imposed straight away at the hearing where that course was essential for

maintaining order; lastly, whereas in the Ravnsborg case the term of imprisonment into which a fine could be

converted ranged from 14 days to three months, in the instant case it cannot exceed 10 days.

However real they may be, the dissimilarities, which reflect the characteristics of the two national legal systems,

therefore do not appear to be decisive. In both cases the penalties are designed to enable the courts to ensure the

proper conduct of court proceedings.

Having regard to all these factors the Court considers, like the Government, that what was at stake for the

applicant was not sufficiently important to warrant classifying the offences as ‘criminal’.”

23 Subsequently, in Pecnik v. Slovenia (App. No. 44901/05) (Unreported, European Court of Human Rights, 27 September

2012), the court sounded a note of caution, and found certain court management procedures which were not classified as

criminal in domestic law to be nonetheless subject to the guarantees contained in Article 6 ECHR. In essence, that was

because the fines could be converted into substantial prison sentences in the absence of procedural guarantees. At

paras. 30 and 34, the court said:-

“30. The Court reiterates that the question whether the criminal head of Article 6 applies has to be assessed in the

light of three alternative criteria laid down in the Court’s case-law, namely the classification of the offence in

domestic law, the nature of the offence and the nature and severity of the penalty

[…]

34. While the Court does not find it necessary to decide whether in the present case the amount of the fine

imposed and the one risked might have by themselves attained a level that made the sanction “criminal”, it

considers that the risk of conversion into such a substantial prison sentence and the lack of any guarantees

attached to the conversion indicated the degree of severity which brought the proceedings in question within the

criminal sphere of Article 6.”

24 The approach in this ECtHR case law is clear and reasonably consistent, and provides a useful perspective when

viewing the requirement for fair procedures under the Constitution. Maintaining order on the day in a courtroom by the

exclusion of a person from the court, by the imposition of fines, or even by detention for a short time, does not amount to

the trial of a charge or a determination of a civil dispute attracting the procedural protections guaranteed by Articles 34

to 38 and 40.3 of the Constitution, and Article 6 ECHR. However, there are difficulties in translating this approach directly

into the context of the Irish constitutional order. It is sometimes, and rather casually, assumed that the increase in

rights-guaranteeing instruments which have effect in Irish law can only lead to a greater protection of the rights of the

individual. That, however, assumes that the various instruments analyse and define rights in the same way, and provide

for them on the same register. However, a number of the instruments taking effect in Ireland operate at an international

level and have regard to many different legal systems. There are many different ways of dealing with behaviour designed

to disrupt court proceedings, and it is quite possible that under the Irish Constitution the common law has developed in a

way that provides a distinctive but fair and balanced approach to such conduct, and that, for example, the analysis

necessary under the ECHR approaches the situation differently, but also achieving a fair and balanced result.

Nevertheless, when the two systems are superimposed upon each other, the result may be incoherent and imbalanced.

While, for example, the jurisprudence of the ECtHR took a more restrictive view than the traditional common law of the

application of contempt jurisdiction in cases akin to Kyprianou v. Cyprus (App. No.73797/01) (2007) 44 E.H.R.R. 27, Irish

law, for its part, cannot so easily accommodate the concept of administrative sanctions and non-criminal fines. As

Hardiman J. observed (dissenting) in DPP v. Independent Newspapers (Ireland) Ltd. [2008] IESC 8, [2008] 4 I.R. 88, at p.

94 (quoting no less an authority than Palles C.B. in Attorney General v. Kissane (1893) 32 L.R. Ir. 220):-

“There is in my view no answer to the point made by Palles C.B.: ‘Now no-one will contend that the jurisdiction to

fine and imprison is not essentially criminal.’”

In any event, even if such extra criminal sanctions were possible, it would still follow as a matter of Irish law that fair

procedures would be required.

25 However, the distinction sought to be made is nevertheless useful, and, as already observed, finds an echo in the

judgment of the High Court in this case. In my view, it is useful to consider whether the traditional, single, one-size-fits-

all approach to contempt, where the threat of punishment (with the theoretical possibility of unlimited punishment) is

deployed for all cases of disruption of court proceedings, cannot be refined somewhat. Even within the rubric of traditional

contempt law, what fair procedures require for measures designed simply to ensure that order is maintained at a particular

hearing may be quite different from, and less elaborate than, the measures required before punishment such as a fine or

imprisonment can be imposed for breach of the law.

The power of removal to maintain order in court

26 The observation of the ECtHR that a court must have the indispensable power to ensure the proper and orderly

function of its own proceedings is equally applicable in Irish law, and perhaps more so, given that Irish law, by European

standards, is relatively expansive both in principle and in practice where it comes to permitting representations to be

made by litigants, or on their behalf. However, as the High Court judge observed here, there is often merit in not reacting

to every slight and each instance of bad behaviour. Court can be a stressful experience for all participants - particularly

for those who are attending for the first time, or those whose home, livelihood, family structure, or some other important

aspect of their life may be threatened in the proceedings. It is often wise to allow some things to pass. In my view, Irish

courts do this regularly. There are, I suspect, many more contempts of court committed than are ever raised by a court,

let alone pursued beyond the point of apology and resulting in imprisonment. Where, however, behaviour cannot be

ignored, or it is a threat to the conduct of the proceedings being heard – and the presiding judge is really the only judge

of this – a court has full power to address the matter, and if necessary order that a person who will not desist from such

conduct is removed from the court. If he or she persists, and seeks to re-enter the court, then such conduct would

constitute a breach of the order, and would give rise to the possibility of further proceedings and sanction.

27 The power to remove a person from the courtroom (and order that they not be permitted to return) probably flows

from the same source in the common law as the law of contempt, that is, the objective of maintaining order. It is not

necessary that there should be a determination that the conduct amounts to contempt (although, if sufficiently serious,

such a determination may be made). This power has long been established as part of the common law. In Arlidge, Eady

and Smith on Contempt (5th edn., Sweet & Maxwell, 2017), para. 10-112, the authors state that “[a]ll courts have

power to order a person interrupting or hindering their proceedings to leave court, and to have him removed if he fails to

leave”, citing R v. Webb ex p. Hawker (The Times, 24 January 1899). An article in the Journal of Criminal Law on the

power of magistrates to deal with contempt, ‘Contempt in the face of a court of summary jurisdiction’(1939) J.Crim.L. 291,

cites an earlier case Willis v. Maclachlan (1876) 45 L.J.Q.B. 689 for the proposition that “[d]espite the absence of a

specific power either at common law or by statute, in practice justices have sufficient power to ensure, save in

exceptional circumstances, that justice shall be administered unhindered and with proper decorum. A person may be

turned out of court if in fact he is hindering the business of the court by disturbance or misconduct or contempt or for

any other reason which renders expulsion necessary to ensure due decorum in the proceedings of the court […]”. These

observations, made at a time when the magistrates’ court in England and Wales was not a court of record, must apply if

anything with greater force in this jurisdiction, where all courts are established pursuant to the Constitution and

administer justice under Article 34, and all are now also courts of record. Removal from court does not require elaborate

fair procedures. The process must be capable of being conducted reasonably summarily, since otherwise the proceedings

(which it is the function of the court to determine) will be disrupted and diverted; a situation which would itself be

fundamentally unfair to the participants involved, and particularly those who abide by the court’s directions. There is no

constitutional restriction on removal of a person from court for the purposes of maintaining order. It is the case that,

pursuant to Article 34.1 of the Constitution, the administration of justice must be carried out in public, save in such

special cases as are provided for by law. The requirement that the court will perform its function in public is an important

guarantee of a courts system to which members of the public may have access as of right, and therefore of the

transparency of court proceedings. That, however, does not give any individual member of the public an entitlement to

behave in a courtroom in a manner that would not be tolerated elsewhere. The exclusion of one or more individual

members of the public does not mean that the hearing is not being conducted in public, or that the public do not have

access, which is what the Constitution requires.

28 The procedures necessary before an individual non-litigant can be removed are simple and summary. The person should

be warned that their behaviour, if persisted in, may result in exclusion from the courtroom, and they should be given an

opportunity of making any representation, whether by way of explanation and excuse, or apology, or an undertaking not

to repeat the conduct, before the order is made and the person is removed. This is the minimum required by fair

procedures. However, it will often be the case, as indeed the present case illustrates, that judges will take further steps

and give further opportunities to avoid the making of an order. There is a distinction between what is required by law and

what is suggested by good sense and an understanding of human behaviour. Court proceedings are stressful. Emotions

often run high, and people, including judges, say and do things they later regret. It is wise for the judge to allow things to

calm down if possible, to explain the procedure and the need for it, and to rise to allow matters to settle down and to

permit time for some reflection. However, while wisdom, forbearance, and patience are very desirable virtues, the validity

of any exclusion from court is not to be determined by considering, in hindsight, if there might have been other ways of

resolving matters. As long as the person is first warned, and, if he or she nevertheless persists, is given an opportunity to

make representations, then the court may have him or her removed from the courtroom. This is not dependent on any

finding of criminal contempt or the exercise of any contempt jurisdiction.

29 When the person whose conduct is such that a court may consider it necessary to have them removed is themselves

a party to the proceedings, then the situation is more difficult. A court would normally be very reluctant to remove a

litigant from the proceedings, especially if representing themselves. In such circumstances, adjournment of the

proceedings may be a preferable option. But even in such a case, a litigant can be excluded if there is no other means of

ensuring that the proceedings can be determined: see The People (Attorney General) v. Saunders & Jasinski (1962) 1

Frewen 283, The People (Attorney General) v. Messit [1972] I.R. 204, the judgment of the High Court (Murphy J.) in

Lawlor v. District Judge Hogan [1993] I.L.R.M. 606 at p. 609, and the judgment of Charleton J. in O’Brien v. Judge

Coughlan [2016] IESC 4 (Unreported, Supreme Court, 11 February 2016), para. 6. Where facilities are available to allow a

person to continue to observe and participate remotely through video link, this may be a useful course to adopt, but the

power to exclude in serious cases remains. Even a case of this type, however, arrangements should be made to ensure

that the D.A.R. is made available to the person as soon as possible thereafter, so that they are aware of what has

occurred in their absence. One practical aspect of this, however, is that any order the court makes in this regard must be

capable of being enforced promptly. It is an essential aspect of the separation of powers that the executive branch

enforce the orders of the judicial branch. That means that members of An Garda Síochána must be available and present

in court if necessary.

The powers of the court under the contempt jurisdiction

30 The step of excluding somebody from court, while itself rare, will often be enough to permit the court to proceed.

However, there will be cases where the conduct is considered particularly serious, and that may occur where the conduct

is persistent, deliberate, or where it is part of a concerted activity. Similarly if a person breaches the court’s order and

attempts to re-enter the courtroom, a court may well consider that the breach of the order may be capable of

constituting contempt. In either case, a court may consider that it is necessary to invoke the contempt jurisdiction and

hold a hearing to consider whether the conduct warrants punishment in the nature of a fine or imprisonment. If so, then

more by way of fair procedures is required.

31 In those circumstances, the person must first 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). It is not always necessary to proceed to such a hearing immediately, although in the nature of things it is

not desirable that it should be unduly delayed. However, it may be necessary, and even beneficial, to postpone a hearing

for a short period, to allow the defendant to arrange legal representation, and permit some reflection and calmer counsel.

The court may order the person to leave the courtroom during that time, in order to remove any immediate threat to the

proceedings. While it may only rarely arise, the court has a power ancillary to the contempt jurisdiction to have the

person temporarily detained to permit the contempt hearing to take place at a later point: see R. v. Cohen [2015] EWCA

2170. This, however, is a power to be carefully exercised and should not be for more than a day.

32 The accused person may be represented at the hearing. Although in many cases the hearing may proceed on the basis

that the facts are not contested, where a factual dispute arises, the D.A.R. will provide a record of what occurred, and it

should not be necessary to call other evidence as to what happened in court, particularly since the judge and the

individual were, by definition, both present. In most cases, the only questions are whether the conduct (which, when

verbal, can often be established definitively by the D.A.R.) amounts to contempt, what attitude the individual now

adopts, and the court’s conclusion. The procedure should be explained and the specific conduct or actions in respect of

which the summary contempt jurisdiction is invoked should be stated. It can then be established whether the individual

contests the facts, or merely wishes to make submissions as to whether the matter amounts to contempt, or, if so, as to

matters in mitigation. While it is difficult to see that there could be a live factual controversy in most cases, if a genuine

dispute is raised, it will be appropriate to determine it. But since this occurs very shortly after the incident in the

courtroom, it should not be necessary to have formal proof: it is sufficient if the party is informed of the behaviour or

incident of concern. While this type of contempt is in its nature a criminal matter, since punishment may be meted out

and proof must therefore be beyond reasonable doubt, it is sui generis in a number of respects, and cannot be

shoehorned into standard procedures designed for different proceedings. There are substantial safeguards and guarantees

of fairness. The criminal standard of proof applies. Any decision is subject to appeal.

33 In the case of proceedings which come within the circumstances such as those considered by the ECtHR in Kyprianou

v. Cyprus (App. No.73797/01) (2007) 44 E.H.R.R. 27, it will not be possible for the hearing to be determined by the judge

who presided at the original hearing. That is because the law recognises that, where it appears that a judge has become

personally involved in the issue because of a personal imputation made or for some other reason, it may also appear that

a judge is making a decision in which they have become interested, in the legal sense of having a personal stake in the

outcome, and any hearing giving such an appearance falls short of the self-evident requirements of impartiality the law

demands. McKechnie J. suggests it may be possible to doubt the particular application of the principle in Kyprianou, but

the principle itself is not in doubt, whether as a matter of constitutional law, the law of the ECHR, or the traditional

common law. In such circumstances, it would be necessary for the original judge to direct that the proceedings are heard

by another judge. One way in which this may be achieved is by referral to the Attorney General to consider bringing

proceedings for contempt, which might be brought in the High Court, which has full and original jurisdiction to hear all

matters. Once again, the availability of a record (the D.A.R.) is of considerable assistance.

34 It is necessary to address the argument made in some commentary, and now regularly advanced by unrepresented

litigants, that any contempt hearing must involve the judge becoming a witness and the subject of cross-examination by

the litigant. Traces of this argument are to be found in this case, as exemplified by some of the interventions made by Mr.

Walsh and recorded at paras. 12 and 15 above. Again, it is difficult to envisage a circumstance in which it would be

necessary, and therefore appropriate, to require the original judge to give evidence. The judge is not the complainant or

injured party: the essence of the offence is interference with the administration of justice. It is generally inconsistent

with the obligation of a judge to be a dispassionate adjudicator for that person to become a participant in litigation

relating to what occurred in a courtroom. For this reason, it is, for example, generally recognised as undesirable that a

judge should swear an affidavit in judicial review proceedings, or indeed be made a party thereto: see, for example, Collins

and O’Reilly, Civil Proceedings and the State (2nd edn., Thomson Round Hall, 2004) at paragraph 5-67 and the cases there

cited, and also the provisions of O. 84, r. 22(2A)(a) RSC. On the other hand, the law of contempt exists to prevent

deliberate or mischievous interference with proceedings, and it is easy to envisage circumstances where the procedure of

a hearing for contempt could itself be abused if it were to be reduced to a further dispute between a member of the

public or litigant and the individual judge. For those reasons, any attempt to have a judge become a witness should be

carefully scrutinised by the court hearing the proceedings. While it is impossible to be definitive about factual

circumstances in every case, it is difficult to envisage circumstances where a judge would be a necessary witness.

35 This is the position at common law, mediated by the requirements of the Irish Constitution and the ECHR. However, the

reform of the law of contempt is under consideration by the Law Reform Commission: see, for example, its recent issues

paper entitled Contempt of Court and Other Offences Involving the Administration of Justice (L.R.C. I.P. 10-2016). The

enactment of a modern statute providing for an effective law of contempt is long overdue. It would be helpful if

procedures were clearly established and laid down in statute. Moreover, there are matters of evidence and procedure

which could usefully be addressed. It is desirable that any legislation should have the benefit of a comprehensive report

and survey of the law by an expert body. Any such developments remain matters to be considered by the Law Reform

Commission and the Oireachtas, subject, however, to the requirement that any legislation must be compatible with the

constitutional obligation on courts to administer justice. For the moment, however, the law of criminal contempt in Ireland

is regulated by the common law, subject only to the more limited statutory provisions contained in s. 6 of the Summary

Jurisdiction (Ireland) Amendment Act 1871 (in respect of proceedings within the Dublin Metropolitan District) and s. 9 of

the Petty Sessions (Ireland) Act 1851 (relating to District Courts outside Dublin). The common law, until amended or

replaced by legislation, must operate effectively, but it must also operate consistently with the dictates of the

Constitution and the ECHR.

Discussion

36 It is now necessary to return to the facts of this case in the light of the observations set out above. It should be

recalled that the proceedings are in the nature of an inquiry under Article 40 of the Constitution. While I can understand

(without necessarily agreeing with) the view of the learned High Court judge that a lesser sanction might have been

appropriate in this case, the proceedings here are not an appeal against the severity of the sanction imposed, and the

Superior Courts should in any event be astute to avoid the beguiling clarity of hindsight. In order to succeed in an inquiry

under Article 40, it would at a minimum be necessary to demonstrate not only that the sentence was excessive, but also

that it was so disproportionate as to render unlawful an otherwise valid conviction for contempt. This is a high threshold,

and in my view the Court of Appeal was correct in considering it had not been reached in this case.

37 The appellant insists that his conduct here should not be viewed as part of any organised attempt to disrupt the

Circuit Court proceedings, notwithstanding the difficult and disruptive atmosphere in which the court was required to

proceed. In the absence of any direct evidence in this regard, and since the court must be satisfied of any matter to the

criminal standard of proof, I agree that the court should proceed on this basis, as indeed the High Court and Court of

Appeal did. But the background is nevertheless relevant. As has been observed, there is a difference between shouting

“Fire!” in a crowded theatre or cinema, and doing so in an empty field. Mr. Walsh’s behaviour must be viewed against a

background of highly unruly behaviour by a large number of members of the public, who, it appeared, had come to court

either because they were involved in other similar cases, or possibly to support other litigants. Against this background, in

particular, Mr. Walsh’s behaviour was utterly unacceptable. The High Court agreed that it amounted to contempt. Given

Mr. Walsh’s obdurate refusal to accept the judge’s rulings, and, indeed, his continued interruptions and insistence on his

own views to the point where it was difficult for the judge or anyone else even to speak, let alone carry on the business

of the court, it is hard to see how it could be viewed otherwise. If every litigant, or indeed any member of the public

present in court, considered they were free to behave in a similar fashion, then it would be impossible for the courts to

deal with cases, and to carry out their constitutional function of administering justice. It cannot be said that the sanction

here was so disproportionate as to render the detention unlawful.

38 In this court, however, the principal focus of the argument was on the procedures adopted and the steps taken, with

particular emphasis on the extent to which the appellant was informed of an entitlement to legal aid (always assuming

that it could be demonstrated that he was not in a position to obtain a lawyer from his own resources) before the

procedure was invoked. However, the assessment of the fairness of procedures is not a mechanical box-ticking exercise.

A view must be taken of the overall fairness of the proceedings. In Nicholls v. Nicholls [1997] 1 W.L.R. 314, Lord Woolf

M.R. observed, at p. 327: “[a]s long as the contemnor had a fair trial and the order has been made on valid grounds the

existence of a defect either in the application to commit or in the committal order served will not result in the order being

set aside except in so far as the interests of justice require this to be done.” I agree that the test is one of the overall

fairness of the proceedings, taking due account of the atmosphere of the hearing, the sometimes chaotic and confused

circumstances in which the issue of contempt arises, and being conscious of the dangers of hindsight. In this context,

there are a number of features of which account must be taken. First, this was not the first occasion on which the case

had been in court, nor even the first time the issue of representation had arisen. Indeed, because Mr. Walsh maintained

that he had an entitlement to represent his sister, the proceedings themselves had been considerably delayed. It is also

apparent that Mr. Walsh was familiar with the concept of contempt of court, even if the source of his knowledge was

dubious. On the other hand, it was noteworthy that, once he had been imprisoned pursuant to the order of the Circuit

Court, he did not seek the benefit of the Legal Aid – Custody Issues Scheme for these proceedings. It is hard to see how

there is any reality to the complaint made on his behalf that he was not informed of an entitlement to legal aid. Taken in

the round, it is very clear both that he was repeatedly offered legal assistance and informed of an entitlement to obtain

legal aid, and encouraged to seek it and accept it. Furthermore, the issue involved could hardly have been simpler. Even

the most truculent person must understand that if they continue to disobey a person in authority, they may face some

punishment. In my view, it is also very clear from the proceedings that had Mr. Walsh been willing at any stage to agree

to abide by the court’s ruling, that the matter would not have proceeded to the imposition of a sanction, and that, had

he apologised - even in the limited way that Mr. Kavanagh did - the matter would have been treated as closed. Counsel

for the fifth respondent has pointed out that there were thirteen warnings, the court rose on four occasions, and the

nature of the offending behaviour was explained several times. Any interested and fair-minded observer of proceedings in

the Circuit Court on 31 May 2016 might be forgiven if they considered that there was a cavernous discrepancy between

the law and reality if it were to be solemnly pronounced that in the events of that day it was Mr. Walsh who had been

treated unfairly. Nevertheless, counsel who represented him in this court argued with some force that, when closely

analysed, the offer of legal aid and legal assistance came after the first occasion the judge had said that she found that

Mr. Walsh was in contempt of court. The subsequent offers of legal aid, it is said, cannot cure that defect. However,

even taking this approach (which focuses so precisely and perhaps unrealistically on the sequence of events, rather than

on the procedure as a whole) it is useful to consider what occurred in the light of the distinction, already discussed,

between the power to exclude and the power to punish for criminal contempt. All that had happened at that early stage

of the proceedings was that Mr. Walsh was removed from the court. As already observed, that process could be carried

out summarily. It did not require elaborate procedures, and still less the opportunity for legal assistance or legal aid, or

any determination of contempt. When Mr. Walsh returned to court, and the question of sentence was raised, he was

informed on a number of occasions of his entitlement to legal aid, and given ample opportunity to address the issue. In all

the circumstances, I am satisfied that fair procedures were complied with in this case and no injustice done to the

appellant.

Order

39 I have had the opportunity of reading in draft the judgment about to be delivered by McKechnie J. It contains the

valuable and insightful account of both the history of the law of contempt, and its continuing justification. For myself, I

would not view the judgment of Wilmot L.C.J. in Rex v. Almon (1765) Wilm. 243, as illustrating anything other than the

antiquity of the law of contempt. That decision concerned a controversial form of contempt of court known as

“scandalizing the court”, treated as virtually obsolescent in England and Wales in Secretary of State for Defence v.

Guardian Newspapers Ltd. [1985] A.C. 339 at p. 347, formally abolished in that jurisdiction in 2013, and rarely invoked in

this jurisdiction in recent times. At a minimum, the law of scandalizing is a dubious source of reinforcement for the law of

contempt in facie curiae, if such is required. However, and more importantly, I do not understand the judgment which I

have delivered as in any way questioning the fundamental justification for the law of contempt of court, and in particular

contempt occurring in the courtroom and disrupting the proceedings.

40 It is apparent that McKechnie J. and I come to the same conclusion on this case, and the companion case of Tracey

v. McCarthy, Supreme Court Record No. 135/2016. Accordingly, any differences between the judgments are essentially

matters of nuance and perhaps emphasis. I do not consider the approach taken in this judgment to be particularly radical

or involving any significant restructuring of the law, and it is certainly not intended to weaken the capacity of the law to

protect the integrity of court proceedings. Rather, the judgments seek to lay down clearly the approach a court should

take when contemplating a determination of contempt, and the steps to be taken to ensure a fair hearing can take place

in a calm atmosphere. They emphasise that a court may exclude a person from court without any necessary finding of

contempt, and that a court may properly exercise the summary jurisdiction for contempt, but must do in accordance with

basic fair procedures as required by the Constitution. Furthermore, and in the absence of legislation, it seeks to clarify the

procedure which would allow the effective prosecution of those limited cases in which the behaviour involves the personal

imputation of a judge so as to give rise to any perception of unfairness if that issue was to be heard by the judge the

subject of the imputation or attack. In that regard, it is not, in my view, a far-reaching adjustment of the law, but rather

a clarification and reinforcement of it.

41 It is, in my view, not just a counsel of prudence, but a performance of the judicial function to take account of modern

insights and developments in other jurisdictions. I do not agree that it can be said that the law of contempt in facie

curiae has never fallen foul of either the Constitution or the ECtHR: manifestly the decision in Kyprianou v. Cyprus (App.

No.73797/01) (2007) 44 E.H.R.R. 27 amounted to a finding that the application of the traditional common law power of

contempt in facie curiae, at least in some circumstances, was a breach of the ECtHR. Perhaps more importantly, the

judgments in recent times, most notably that of Henchy J. in State (D.P.P.) v. Walsh [1981] I.R. 412, demonstrate that

there has been a continuing process of courts (and not only those in this jurisdiction) addressing the law of contempt to

ensure that it is compatible with the elementary requirements of justice which are required to be observed in any

proceedings. I do not consider that the law is either so clear or effective in practice, or so free from doubt, that it does

not need reconsideration. While respectful of what past decisions can teach us, it is important to recognise the significant

developments in the perceptions of what justice requires. A consideration of history is useful in showing the continued

importance of an effective law of contempt, but later generations may have differing views as to how the requirements of

an effective law of contempt are to be achieved. In that regard, I do not perceive a significant difference between the

approach taken in this judgment and that of McKechnie J., but that, again, is a matter for future courts. For the present,

I would join with him in dismissing this appeal.

42 It has now been held by each court which has considered this matter, from the Circuit Court to this court, that the

conduct in question amounted to contempt. Moreover, the arguments which Mr. Walsh insisted upon, i.e. that he had

some entitlement at law to make representations in his sister’s case and/or that the court lacked jurisdiction, were plainly

wrong. At no stage of these proceedings has it been argued that he was right or even entitled to take this view. It is a

disappointing feature of the case, therefore, that although considerable time has elapsed since the Circuit Court

proceedings in question, he has never, either by himself or through his counsel, expressed any recognition that he was in

error, and that his approach gave rise to the contempt hearing. This contrasts sharply and unhappily with his continued

insistence that it was the Circuit Court judge who was in error. It is quite clear, in my view, that the matter would never

have reached the point of a committal to prison if Mr. Walsh had been willing to accept, even at a late stage, that he

was wrong, and was in any event obliged to accept the ruling of the judge. It would be desirable, nevertheless, if this

matter could now be resolved without the necessity that he should at this stage serve any further time in prison. The

order of the Court of Appeal provides a mechanism whereby that might be achieved, depending on the attitude taken by

Mr. Walsh at this stage. In any event, there are issues of law which arise, since an order for release was made by the

High Court, which was then the subject of appeal to the Court of Appeal and to this court. Furthermore, I would wish to

have submissions as to the extent of the powers of an appellate court in these proceedings. I would accordingly dismiss

the appeal, but would require further submissions as to the form of the order which may be made at this juncture.