Supreme Court allows appeal from High Court contempt order as it was not a Central Criminal Court trial.

THE SUPREME COURT

JUDICIAL REVIEW

[221/05]

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

Between

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant/Appellant

AND

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED AND ORS.

Respondents

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

1. The Respondents have made a preliminary objection to the jurisdiction of this Court to hear this appeal. They submit that no appeal lies from the decision

of the High Court (Dunne J.), refusing the application of the Appellant to attach or commit the Respondents for contempt of court. Determination of that

issue depends on the correct interpretation of s.11 of the Criminal Procedure Act, 1993 combined with s. 11 of the Courts (Supplemental Provisions) Act,

1961.

2. The appellants say: a) the contempt jurisdiction of the High Court is a criminal jurisdiction; b) the High Court, when exercising its criminal jurisdiction,

including its power to attach or commit for contempt of Court, is called the Central Criminal Court (s. 11 of the Act of 1961); c) there is no appeal from the

Central Criminal Court to this Court (s. 11 of the 1993 Act).

3. The appellant applied by notice of motion to the High Court for an order directing the attachment and committal and/or sequestration of the assets of the

Respondents and each of them for contempt of court in respect of material published in the Evening Herald on 2nd December 2004. The notice of motion

also sought an order restraining the Respondent from further publishing material “calculated to interfere with the trial process now in being between the

Applicant [the appellant] and Patrick O’Dwyer……” The application was grounded on an affidavit sworn by Mr John Forde, a solicitor in the Office of the

Chief Prosecution Solicitor. Mr Forde deposed that, on 1st December 2004, one Patrick O’Dwyer had appeared before the District Court in Ennis, County

Clare, charged with murder. He exhibited a copy of the Evening Herald published on 2nd December 2004. He alleged that the contents of the article were

calculated to interfere with the course of justice and the trial process and to prejudice the fair trial of the said Patrick O’Dwyer, that they were in breach of

the sub judice rule and amounted to a contempt of court. According to the affidavit, the Evening Herald is published by the first-named Respondent, the

second-named Respondent is its editor and the impugned articles were written by the third-named Respondent. A brief affidavit on behalf of the

Respondents was sworn by Ms Paula Mullooly, solicitor.

4. The application was heard by Ms Justice Dunne. At the conclusion of the presentation of the case on behalf of the appellant, counsel for the

Respondents applied to the learned judge for “a direction,” or non-suit, relying on the principle that a trial court may direct an acquittal at that point. It was

submitted that it was essential that there be proof before the court of a real risk of interference with a criminal trial and that no evidence had been adduced

by the prosecution to demonstrate that the publication of which complaint was made created any real risk of interference with the due administration of

justice in the prospective criminal trial of the said Patrick O’Dwyer.

5. Ms Justice Dunne delivered a reserved judgment on 3rd May 2005. She referred extensively to authority. She noted that what was alleged was a criminal

contempt of court. She held that she was bound to apply the criminal standard of proof. Accordingly, the appellant had to show that the Respondents were

guilty beyond reasonable doubt of contempt of court. On careful consideration of the application of the appellant, she could not conclude that it had been

shown that the articles complained had given rise to a real risk as distinct from a remote possibility of prejudice to the fairness of the trial. Hence, she

refused the application.

6. The appellant, in his notice of appeal advances principally the contention that the learned judge had incorrectly failed to consider whether the appellant

had made out a prima facie case that the Respondents had committed a contempt of court. The Respondents raised, in their written submissions, the

question whether an appeal lies, as a matter of principle, from the decision of the High Court, which amounts to an acquittal in a criminal proceeding. That

contention takes two forms. Firstly, the Respondents refer to the historic common-law rule, described as an elementary principle, that:

“an acquittal made by a court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule

be questioned and brought before any other court.” (per Palles CB in R(Kane) v Tyrone Justices (1906) 40 ILTR 181).

7. Reference was also made to the dictum of O’Dalaigh J in State(Attorney General) v Binchy [1964] 395, at 416 that it was “entirely without precedent to

go behind [a not guilty] verdict and it [was] now too late to create one.” The submissions proceed to refer to the decisions of this Court in The

People(Attorney General) v Conmey [1975] I.R. 341 and The People(Director of Public Prosecutions) v O’Shea [1982[ I.R. 384, describing the first as

“highly controversial” preferring the dissenting views in the case of the latter. If the Court were to consider reviewing or over-ruling these precedents it would

be necessary to make reference is made to the authorities governing the circumstances in which the Court will depart from precedent. None of that arises

at this point. Secondly, the submissions rely on s. 11(1) of the Act of 1993 and the identically numbered provision of the Act of 1961. It is the latter point

which the Court has decided to consider as a preliminary issue. The first one remains open.

8. The entire issue depends on whether Dunne J was sitting as a judge of the Central Criminal Court. As Hardiman J has observed in the judgment which he

has delivered, “no person, and certainly no lawyer, would speak naturally of the Court in which Ms. Justice Dunne sat and disposed of the Director’s

application as “The Central Criminal Court.” That is certainly true. The question remains whether the wording of the two cited sections is sufficiently clear

and unambiguous to oust the constitutionally ordained appellate jurisdiction of this Court. There is no doubt that this is a difficult question. There is great

force in the conclusion expressed by Hardiman J. I have come, nonetheless, to a different conclusion. I need to consider the nature of the contempt

jurisdiction. I must say, at once, that I fully accept that it clear beyond argument that the jurisdiction is of a criminal character. I consider, nonetheless, that

the manner of its exercise, both historically, and, as it is at present exercised by the High Court, is of relevance. Most crucially, I will consider the nature of

the jurisdiction exercised by the Central Criminal Court.

9. The proposition that a court, called upon to exercise its contempt jurisdiction is dealing with a criminal matter is well established. The nature of the

remedy is determinative. The primary remedy sought in the Notice of Motion is the “attachment and committal and/or sequestration of the assets of the

Respondents…”

10. The judgment of O’Sullivan P, in the High Court of the Irish Free State, in Attorney General v O’Kelly [1928] I.R. 308 traced common-law authorities

back to the eighteenth century. It was, according to Wilmot C.J. a power to “fine and imprison for contempt of court.” (R v Almon 1 Wilm. 243). Palles C.B.

thought that “no one will contend that the jurisdiction to fine and imprison is not essentially criminal.” (Attorney General v Kissane 32 L.R. I.R. 220).

O’Higgins C.J. said as much in his judgment in State (Director of Public Prosecutions) v Walsh [1981] I.R. 412 at 429.

11. The object and incidents of the jurisdiction may be discerned from the same historic sources and have been consistently reiterated down to our own

time. It is, to cite Wilmot C.J. once more, that of the courts “vindicating their own authority……” He also drew attention to the contrasting methods of

procedure, namely by attachment and by trial by jury. In a further part of his judgment, also cited by O’Sullivan P, he explained the need for the former

procedure by the need:

“…to deter men from offering any indignities to Courts of Justice, and to preserve their lustre and dignity, it is a part of the legal system of

justice in this kingdom that the Court should call upon the delinquents to answer for such indignities, in a summary manner, by attachment,

…”

12. O’Sullivan P. continued to reject the contention that the jurisdiction had not been carried over by the 1922 Constitution, stating, at page 318:

“I am of opinion that Art. 72 [of that Constitution] was not intended to, and does not, affect the jurisdiction of the High Court to deal

summarily with cases of contempt, and that its operation is confined to trials of criminal charges by ordinary criminal process.”

13. Meredith J, in his dissenting judgment, spoke of: “the supreme end in view—the preservation of due respect for the law” (page 325). Since the

foundation of the State and, specifically, since the enactment of the present Constitution, the Courts have consistently held that they have an inherent

jurisdiction to punish summarily contempt of court, whether taking the form of contempt in the face of or out of court. (see In re Earle [1938] I.R. 412;

Attorney General v Connolly [1947] I.R. 213.)

14. The contempt jurisdiction derives from the need for the courts to be in a position to act speedily to protect the respect and dignity of the courts

themselves in the independent exercise of their functions and, equally importantly, to protect the judicial process from contamination by, inter alia,

prejudicing parties, witness or jurors or risking the fairness of trials. At this point in the present proceedings, there is no need to consider the applicability of

these procedures to the instant case. The need for a summary remedy justifies a summary procedure. Attachment and potential committal were devised for

that purpose. The procedures are laid down by Order 44 of the Rules of the Superior Courts. They are the procedures employed by the appellant in the

present case. The appellant has served a Notice of Motion, grounded on an affidavit. The essence of his complaint, as set out in a grounding affidavit, is that

the Respondents have published newspaper articles “calculated to interfere with the course of justice and the trial process and to prejudice the fair trial

of…” one Patrick O’Dwyer. Dunne J dismissed the application. It is from that decision that the appellant seeks to appeal to this Court.

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

“The right of appeal to the Supreme Court, other than an appeal under section 34 of the Criminal Procedure Act, 1967, from a decision of the

Central Criminal Court is hereby abolished.”

16. Thus, if the decision made by Dunne J was, as a matter of law, a decision of the Central Criminal Court, there is no appeal. Whether or not it was such

a decision, must depend on s. 11(1) of the Act of 1961. I cite the entire section. It provides:

“1) The High Court exercising the criminal jurisdiction with which it is invested shall be known as An Phríomh-Chúirt Choiriúil (The Central

Criminal Court) and is in this Act referred to as the Central Criminal Court.

(2) ( a ) The jurisdiction exercisable by the Central Criminal Court shall be exercisable by a judge or judges of the High Court (including the

President of the High Court) nominated from time to time by the President of the High Court.

(b) The jurisdiction of the Court shall be exercisable by each judge for the time being so nominated save that, where the President of the

High Court directs that two or more such judges shall sit together for the purpose of a particular case, the jurisdiction of the Court for that

purpose shall be exercised by those judges sitting together.

(3) Every person lawfully brought before the Central Criminal Court may be indicted before and tried and sentenced by that Court, wherever it

may be sitting, in like manner in all respects as if the crime with which such person is charged had been committed in the county or county

borough in which the said Court is sitting.

(4) References in any other enactment (whether passed before or after this Act) to the Central Criminal Court shall be construed as

references to the High Court exercising the criminal jurisdiction with which it is invested.”

17. The key question relates to the meaning of the expression, the “High Court exercising the criminal jurisdiction with which it is invested.” It has to be

accepted that, on a literal interpretation, it might be held to apply to the jurisdiction exercised by Dunne J in this case. Against that is the very strong

intuitive point that nobody, in practice, would consider that Dunne J was sitting as a judge of the Central Criminal Court. In the end, I think there is good

legal reason for that.

18. However, before further consideration of that central question, I will refer to two issues of more general importance.

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

“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction

from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by

law.”

20. It is a well established proposition that, where it is contended that any provision of any statute prevents or limits the right of appeal to this Court, it must

be clearly shown that it has that result. As was stated by Walsh J, with whom Doyle J agreed, in People (Attorney General) v Conmey [1975] I.R. 341 at

360:

“I wish to express my view that any statutory provision which had as its object the excepting of some decisions of the High Court from the

appellate jurisdiction of this Court, or any particular provision seeking to confine the scope of such appeals within particular limits, would of

necessity have to be clear and unambiguous. The appellate jurisdiction of this Court from decisions of the High Court flows directly from the

Constitution and any diminution of that jurisdiction would be a matter of such great importance that it would have to be shown to fall clearly

within the provisions of the Constitution and within the limitations imposed by the Constitution upon any such legislative action.”

21. O’Higgins C.J., at page 354 of the report in that case, stated:

“Since its appellate jurisdiction from decisions of the High Court is written into the Constitution, this can only be restricted or regulated by

legislation clearly intended to have this effect.”

That interpretative principle was reiterated by Keane C.J. in A.B. v Minister for Justice, Equality and Law Reform [2002] 1 I.R. 296 at 303: “the right of

appeal to this court provided for in Article 34.4.3 may only be removed or abridged by a statutory provision which is clear and unambiguous.” That principle

must be borne in mind when interpreting s. 11 of the Act of 1993.

22. The second general issue is a closely associated one. If the Respondents are corrected in their contention, s. 11 precludes any appeal from a High

Court decision to acquit of a charge of contempt, such as in the present case. The inevitable corollary would appear to be, however, the even more far-

reaching one that there would equally be no appeal in the case of conviction. The section addresses itself generally to decisions of the Central Criminal

Court. It makes no distinction between acquittal and conviction. A person found guilty of contempt of court. i.e., convicted, will have been so found pursuant

to the summary procedure for attachment and commital, and not on indictment. The right to appeal from conviction in the Central Criminal Court to the

Court of Criminal Appeal applies only to persons convicted on indictment. This follows from s. 31 of the Courts of Justice Act, 1924. That section provides

that, subject to provisions relating to a certificate granting leave, a “person convicted on indictment before the Central Criminal Court …… appeal under this

Act to the Court of Criminal Appeal……” S. 31 was, as stated by this Court in People (Attorney General) v Conmey, cited above, “…re-enacted in relation to

the……Court of Criminal Appeal…” (See O’Higgins C.J. at 354), by s. 48 of the Act of 1961. It is clear that a person found to have been in contempt of

court has no right of appeal to the Court of Criminal Appeal. So far as I am aware, no attempt has ever been made to bring such a case before that court.

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

constitutionally possible, it would certainly require clear wording.

24. I then turn to consider the two sections, both enumerated 11. I cannot entertain any doubt as to the meaning os s. 11 of the Act of 1993. It “abolishes”

the right of appeal from the Central Criminal Court to the Supreme Court. Until this Court decided People (Attorney General) v Conmey, it had not been

claimed that any such appeal lay. It seems reasonable to infer that the primary objective of s. 11 was to abolish the right of appeal so identified, as well as

the possibility of appeal by the prosecution found, by a majority of this Court, to lie in the case of an acquittal, in the later case of The People (Director of

Public Prosecutions) v. O’Shea [1982] I.R. 384. It seems highly unlikely that the legislature had it in mind to prevent appeals from either conviction or

acquittal in cases of contempt of court.

25. I have to accept that the language of the sections is unhelpful. Where, however, the objective is to limit the appellate powers of this Court, I am satisfied

that the wording used would need to be very clearly expressed so as to apply to cases heard under the effectively civil rules relating to attachment and

committal. It is far from being so.

26. Everything in the context of s. 11 of the Act of 1961 points to its being concerned with the normal business of the Central Criminal Court, the conduct of

trials on indictment. Sub-section 3 provides that persons “may be indicted before and tried and sentenced by that Court……” Sub-section 2 refers to the

jurisdiction of the Central Criminal Court being “exercisable by a judge or judges of the High Court (including the President of the High Court) nominated

from time to time by the President of the High Court.” That provision replaced s. 3 of the Courts of Justice Act, 1924, which had envisaged “the judge of the

High Court, to whom is assigned the duty of acting as such Court for the time being.” In each case, some degree of formality is involved: a judge or judges

is or are assigned to sit in the Central Criminal Court. It is not suggested, in the present case, that any such step had been taken in the case of Dunne J,

in reference to the present case.

27. Sub-section (1) provides that the “High Court exercising the criminal jurisdiction with which it is invested” is to be known as the Central Criminal Court.

S. 8 of the Act of 1961 provides for the “vesting” of jurisdiction in the High Court generally. S.8(2) provides:

(2) There shall be vested in the High Court—

(a) all jurisdiction which was, immediately before the commencement of Part I of the Act of 1924 vested in or capable of being exercised by

the former High Court of Justice in Southern Ireland or any division or judge thereof and was, immediately before the operative date, vested in

or capable of being exercised by the existing High Court,

(b) all jurisdiction which, by virtue of any enactment which is applied by section 48 of this Act, was, immediately before the operative date,

vested in or capable of being exercised by the existing High Court.

28. S. 14 provides that all courts, including the Central Criminal Court are to exercise their jurisdiction “in the manner provided by rules of court.” Order 86

of the present Rules deal with the exercise of the jurisdiction of the Central Criminal Court. As one would expect, those rules, like their predecessors,

contemplate only trial on indictment. S. 25, provided that “the Circuit Court shall have and may exercise every jurisdiction as respects indictable offences

for the time being vested in the Central Criminal Court……”

29. I conclude that everything in the statutes and the rules suggests that the Central Criminal Court has jurisdiction to conduct trials on indictment. It does

not, to use the language of the section, “invested” with any other jurisdiction. I do not believe that applications for attachment or committal, as provided for

by Order 44 come within the jurisdiction of the Central Criminal Court.

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

from appealing to this Court.