Supreme Court dismisses appeal against High Court contempt order as it lacks statutory right of appeal.

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 Hardiman delivered the 5th day of March, 2008.

Background.

On the 1st December, 2004, a man called Patrick O’Dwyer appeared before the District Court in Ennis, Co. Clare, having been charged with the murder of

Marguerite O’Dwyer, his sister, on the 29th November, 2004.

On the 2nd December, 2004, a number of articles were published in a newspaper published by the first-named respondent, edited by the second-named

respondent and carrying the by-line of the third named respondent. Shortly afterwards, the Director of Public Prosecutions instituted contempt proceedings

against the three respondents saying that the material published on the 2nd December, 2004:

“… was calculated to interfere with the course of justice and the trial process then in being between the applicant and Patrick O’Dwyer and to

prejudice the fair trial of the said Patrick O’Dwyer. Furthermore, the said publications took place subsequent to the criminal charge preferred

against the accused and to his remand in custody and in breach of the sub judice rule and contained details in respect of the remand hearing

before Ennis District Court on the 1st December, 2004 which further amounted to contempt of court.”

The above quotation is taken from the Notice of Motion issued by the applicant on the 1st February, 2005. In this Notice of Motion he seeks, at paragraph

1:

“An order directing the attachment and committal and/or sequestration of the assets of the respondents herein, as the case may be, and

each of them for contempt of court in respect of material published in the Evening Herald newspaper on the 2nd day of December, 2004,

which material is exhibited and described with particularity in the affidavit sworn herein on the 1st day of February, 2005, by John Forde on

behalf of the applicant.”

It will be noted, accordingly, that the first relief sought by the applicant in the contempt proceedings was committal to prison of the individual defendants,

because they had committed a contempt of court. Such a deprivation of liberty would obviously be penal in nature. The other relief sought, presumably

against the corporate respondent, was sequestration of property. This is undoubtedly a penal deprivation of assets, by reason of the fact that the company

must have been, before any sequestration is ordered or takes place, found guilty of contempt of court.

The Director’s application for committal and sequestration was heard before the High Court (Dunne J.) in May, 2005. On the 3rd May of that year a written

judgment was delivered by the learned High Court judge dismissing the Director’s application and acceding to an application made by the respondents for a

non-suit or “direction”, at the end of the prosecution case. The order of the High Court, perfected on the 12th May, 2005, records that:

“The Court doth refuse the relief sought.”

By a document dated the 14th June, 2005, the appellant, the Director of Public Prosecutions, has purported to appeal this decision of the High Court to this

court. Some time after this notice was lodged the respondents decided that they would take the point that, in the circumstances outlined above, no appeal

lies from the decision of the High Court with which the Director is aggrieved. When the appeal came into the list for hearing this Court directed that that

issue be dealt with first.

Constitutional and statutory provisions.

By virtue of Article 34.4.3 of the Constitution:

“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.”

The main relevant “exception… prescribed by law” is contained in s.11 of the Criminal Procedure Act, 1993 which provides as follows:

“(1) The right of appeal to the Supreme Court, other than an appeal under s.34 of the Criminal Procedure Act, 1967, from a decision of the

Central Criminal Court is hereby abolished.”

At the hearing before this Court the Director conceded that the effect of this Section was that if the High Court which gave the decision in this case, against

which the Director wishes to appeal, can be regarded as the Central Criminal Court, then no appeal lies.

On this topic, 11 of the Courts (Supplemental Provisions) Act, 1961 provides as follows:

“(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 exercised 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.

(c) 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 and 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) The 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.”

Nature of the contempt proceedings.

There is clear authority, both recent and remote, for the proposition that contempt proceedings of the kind instituted by the Director in the present case are

criminal proceedings and are not proceedings of any other nature, or proceedings which are sui generis.

In The State (DPP) v. Walsh [1981] IR 412, the Director had likewise sought orders of attachment and committal or sequestration against the respondents.

The Supreme Court held that, on that account, the respondents were charged with the commission of criminal offences and that the High Court had

jurisdiction to try the respondents summarily, without a jury, on the charges of contempt of court made by the prosecutor. It was further held that the

respondents were charged with major, and not minor, offences so that their trial on those charges were governed prima facie by the requirements of Article

38.5 of the Constitution but that nevertheless the respondents were not entitled to a trial with a jury since there were no disputed issues of fact requiring the

services of a jury for their determination.

At page 429 of the report O’Higgins C.J. said expressly:

“These proceedings are attachment proceedings for contempt of court. I think it is correct to describe such proceedings as being in reality a

charge of a criminal offence.”

Apart from this, the respondents pointed out at the hearing in this Court that in his written submissions in the High Court in this present case, the Director

stated that what the defendants were charged with was “a common law offence which is punishable with such amount of fine or imprisonment as the Court

may determine.” Accordingly the defendants, it would appear, were at risk of an unlimited fine or of imprisonment for an unlimited duration.

The decision of the former High Court in Attorney General v. O’Kelly [1928] IR 308 refers to a decision of the former Courts of Justice in Ireland, prior to

1924, namely A.G. v. Kissane, 32 LR IR 220. There, no less an authority than Chief Baron Palles surveys the antiquity of the jurisdiction as well as its

nature and says:

“ ‘That power’, says Wilmot C.J. ‘which the Courts in Westminster Hall have of vindicating their own authority is coeval with their foundation

and institution; it is a necessary incident to every Court of Justice, whether of record or not, to fine and imprison for contempt of court, acted

in the face of it.’ No-one will contend that the jurisdiction to fine and imprison is not essentially criminal.”

He proceeds:

“And the issuing of attachments by the Supreme Courts of Justice in Westminster Hall for contempts out of court stands upon the same

immemorial usage as supports the whole fabric of the Common Law; it is as much the lex terrae and within the exception of Magna Charta,

as the issuing of any other legal process whatsoever. I have examined very carefully to see if I could find out any vestige or trace its

introduction, but can find none. It is as ancient as any other part of the Common Law; there is no priority or posteriority to be discovered

about it; and therefore it cannot be said to invade the Common Law, but to act in alliance and friendly conjunction with every other provision

which the wisdom of our ancestors has established for the general good of society.”

It therefore appears to me:

(a) That the jurisdiction to attach, commit or sequestrate for contempt of court is criminal in nature. There is in my view no answer to the point

made by Chief Baron Palles: “Now no-one will contend that the jurisdiction to fine and imprison is not essentially criminal.” The criminal

standard of proof must apply.

(b) This jurisdiction is of immemorial origin and has been regarded as inherent in courts throughout the recorded history of the Common Law.

Decision and discussion.

On this hearing, it was undisputed that the original application for attachment and committal, and for sequestration, had properly been brought in the High

Court and the High Court was properly seised of the application. Accordingly, it seems to me beyond argument that the High Court had jurisdiction to deal

with the matter. Since the matter itself was of a criminal nature, this was a jurisdiction to deal with a criminal matter i.e. a criminal jurisdiction. This

jurisdiction belonged to the High Court not by being conferred by statute at some specific time but as an inherent jurisdiction “coeval with [its] foundation

and institution”. Such a jurisdiction may fairly be regarded as inherent.

Accordingly, the High Court in dealing with this application of the Directors was exercising a criminal jurisdiction vested in it since time immemorial. While

doing this the High Court is to be known, by reason of s.11(1) of the Courts (Supplemental Provisions) Act, 1961, as the Central Criminal Court. Moreover,

by virtue of subsection (4) of the same Section, “The references in any other enactment… to the Central Criminal Court shall be construed as references to

the High Court exercising the criminal jurisdiction with which it is invested.” The Criminal Procedure Act, 1993, is such an enactment, and the High Court

dealing with this application is “the Central Criminal Court” mentioned in subsection (1) of s.11 of the Act of 1993. This Section abolishes the right of appeal

to the Supreme Court from a decision of the Central Criminal Court. The decision against which the Director purports to appeal is such a decision;

accordingly no appeal lies.

The logic of the chain of reasoning set out above appears to me to be inescapable. But I would concede the attraction and plausibility of two of the points

made on behalf of the Director. The first is that 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”. On the contrary, they would refer to it as the High Court. But this is a matter of

familiar nomenclature only. Section 11 of the Act of 1961, quoted above, has ordained that the High Court shall be known as the Central Criminal Court

when it is exercising (any part or aspect of) the criminal jurisdiction which it has. No doubt the huge bulk of that jurisdiction consists in hearing criminal

trials on indictment and that activity is associated in the mind of the profession with the term “Central Criminal Court.” But that fact, the product of familiarity

and of an omission to consider the statutory framework, cannot stand in the face of what I regard as the plain construction of s.11 of the Act of 1961.

So ingrained has the use of the term “Central Criminal Court” in the sense indicated above become that Henchy J. himself in The People v. O’Shea, at

p.421 of the Report refers to:

“… the Central Criminal Court (which is but a description of the High Court when exercising its jurisdiction to try indictable offences).”

It would, of course have been possible so to define the Central Criminal Court in the Act of 1961 or some other enactment. But this was not done and the

more inclusive definition quoted above was used instead. Secondly, no-one looking at the Act of 1993 in its context can doubt that its purpose was

specifically to overrule the effect of the decision of this Court in O’Shea reported in [1982] IR. O’Shea’s case was originally a trial on indictment and

specifically (in this Court) concerned the State’s successful assertion of a right to appeal from a directed verdict of not guilty. It may well be that the

intention of the legislature in 1993 would have been fully achieved by providing simply that there was to be no appeal against a directed verdict of acquittal in

the Central Criminal Court. But this, too, was not done, for whatever reason, and instead the broader form of words with which we are concerned here found

favour with the legislature.

Other considerations.

Despite the fact that there may have been an element of happenstance in the adoption of the form of words actually used in 1961 or even in 1993, I do not

regard the result which they require in this case as regrettable or in any way inappropriate. The defendants were subjected to a criminal trial in the High

Court, in which, if they had been convicted, they might have been imprisoned for any length of time and deprived of their property without limitation on the

amount. They were acquitted by the learned trial judge. It is irrelevant for present purposes that, for the reasons discussed at length in Walsh’s case, cited

above, there was no jury. The defendants have been acquitted by a court of competent jurisdiction after the prosecution had deployed against them all the

evidence they wish to deploy and had addressed all appropriate arguments to the Court of trial.

It is an utterly novel proposition that an acquittal in those circumstances can be the subject of appeal. I am reminded of what Henchy J. said in the

somewhat different context of O’Shea’s case at p.421:

“There is no precedent for the appeal now contended for. This Court has never heard, much less allowed an appeal against an acquittal in the

Central Criminal Court. The appellant however contends that we should allow his appeal against the acquittals in this case. More specifically,

by his Notice of Appeal he claims that the trial judge’s direction to the jury to bring in verdicts of not guilty was a misdirection and should be

set aside and that we should order a new trial on those counts. Were such an order to issue, it would be unprecedented in the annals of

criminal law in these islands. It is against the background of such considerations that the propounded question must be set in focus.”

I would also draw attention to the following words of Henchy J.

“While the accused is normally entitled to a rebuttable presumption of innocence right up to the point when the jury return their verdict of not

guilty, from that point onwards that presumption stands irrebuttable. So much and so immediately so, that unless the accused is being validly

detained on another charge the trial judge must order his peremptory release from custody. And after the acquitted person steps out of the

courtroom and breathes afresh the air of freedom, even if it should emerge afterwards that there is fresh evidence of his guilt, and even

evidence provided by his own admission of guilt, he cannot be put on trial again for the offence of which he has been found not guilty by the

jury. If an attempt were made to retrial him, he could successfully raise the defence known in lawyers’ French as autre fois acquit. That

means that he could raise the plea, in bar of the second trial, that he previously been acquitted of the same offence, that in consequence the

matter was res judicata and that the prosecution were thus irrevocably estopped from subjecting him to such double jeopardy.”

Nor was this attitude of Henchy J.’s novel one: in the decision of Finlay P. (as he then was) in the same case, he cited Attorney General v. Binchy [1964]

IR 395. There, a Circuit Judge had directed a verdict of not guilty on the ground of the prosecution’s failure to produce the original of the return for trial. This

was found to be an error. But the verdict had been recorded in the order of the Court as a verdict of not guilty simpliciter. O’Dálaigh C.J. said, and was

quoted with approval by Finlay P. in the later case:

“To quash the present verdict of not guilty would not in any real sense be to quash a verdict of acquittal. Nevertheless when the jury’s verdict

as recorded is a verdict of not guilty simplicter, this Court should act on the record for what it says. It is entirely without precedent to go

behind such a verdict, and it is now too late to create one.”

If it be the case, for the reasons set out in the judgments of this Court in Walsh that this form of trial for contempt in the High Court, uniquely, does not

permit of the right to jury trial, I would not regard that fact as conferring any less sanctity on a verdict of acquittal. To do so, indeed, would be to impose a

double disadvantage on a defendant: firstly a deprivation of the right to jury trial, and secondly an additional scope to attack a verdict of acquittal simply

because there was no provision for jury trial. The fact is that this is a verdict of acquittal on the merits. Such a verdict has never been capable of appeal, to

my knowledge, in any common law jurisdiction. This was also the view, as appears from the quotations above from their judgments in O’Shea of Chief

Justice O’Higgins and Chief Justice Finlay and as further appears from the judgment of Chief Justice Ó Dálaigh in Binchy.

A concern.

I am however concerned, though the point does not arise in this case, that the same chain of reasoning would seem to exclude any appeal from a

conviction for contempt. Equally, I am concerned that it would exclude appeal in other circumstances - e.g. an appeal against an order refusing to award

costs to a citizen tried in the Central Criminal Court and who is otherwise entitled to this relief. This, although recent Statute Law has provided an appeal for

the State in such circumstances. No appeal to the Court of Criminal Appeal appears to be available to a person not “convicted on indictment”.

This is a matter for urgent legislative attention.

Conclusion.

This was an exercise of the criminal jurisdiction of the High Court. To regard a jurisdiction to convict of a criminal offence, and thereupon to impose

imprisonment for an unlimited term or penal confiscation of property without any limit on the amount, as other than criminal, would be to empty the words

“criminal jurisdiction” of all meaning. Indeed, as Chief Baron Palles said, it is a jurisdiction essentially criminal.

Because the order against which the Director wishes to appeal was made by the High Court exercising its Criminal Jurisdiction it is, by virtue of s.11 of the

Courts (Supplemental Provisions) Act 1961, to be regarded as a decision of the Central Criminal Court.

The right of Appeal to this Court from such a decision was “abolished” by s.11 of the Criminal Procedure Act, 1993. This provision is “an exception…

provided by law” from the general right of Appeal, as itself provided for in Article 34.4.3 of the Constitution.

I would therefore decline to entertain the purported Appeal.