The Gazette 1976

J UNE /J U LY 1976

GAZETTE

for commital in respect of a breach of an interim injunction, it was contended that the Court should allow that defendant to be cross- examined upon his affidavit. The Court of Appeal held that proceedings for the committal of a person to prison for civil con- tempt were in the nature of crimi- nal proceedings. Accordingly a per- son charged with contempt could not be compelled to answer interro- gatories, or to incriminate himself. In considering Re Haughey —(1971) I.R. — Parke J. construed that decision as meaning that, since the contempt alleged against Mr. Haughey (being a refusal to answer a question put to him before a Parliamentary Tribunal) could only be punished in the same way as a trial, and was a contempt otherwise than in the face of the Court, all such contempt must be tried before a jury. According to Finlay P. the offence alleged against Mr. Haughey was not contempt of Court; instead he would have committed a breach of a Statute which provided that it should be punished in the same manner as a contempt of Court; if guilty of anything, Mr. Haughey had merely been guilty of a breach of the Statute. In A.-G. v. O'Kelly (1928) an application was made to attach the accused, editor of "The Nation" newspaper for making uncompli- mentary remarks about the manner in which O'Byrne J. conducted specified cases in the Central Criminal Court; the High Court decided to deal with the attach- ment summarily and fined the accused £100 in view of the Court's inherent jurisdiction. The Supreme Court approved of the O'Kelly decision in Re Earle — (1938) I.R. In A.-G. v. Connolly (1947), the prosecutor was accused of writing an article contemptuous of the Special Criminal Court; a Divi- sional High Court fully confirmed the decision in O'Kelly's case and made him enter a bond of £50 to be of good behaviour. In Keegan v. De Burca (1973) I.R. — where the prosecutor committed a Con- tempt of Court by refusing to answer a question, the Supreme Court directed that the matter should be sent back to the High Court to be disposed of in a sum- mary fashion. If Parke J.'s contention were cor- rect, it would mean that the Direc- tor of Public Prosecutions under the direction of the Attorney General would have to present an indictment and try the person

alleged to have been guilty of con- tempt before a jury. If Art. 38 of the Constitution were to be con- strued thus, it seemed to Finlay P. that the Courts would be deprived of their right to enforce their own orders, and the idea of the funda- mental tripartite division of powers which underlies the entire Con- stitution would be denied. Further- more, by non-activity, the Director, as a servant of the Executive could paralyse the capacity of the Courts to enforce its will against him, which would be a vital infringement of the independence of the Courts. Accordingly the inherent jurisdic- tion of Courts of Record summarily to deal with contempt of Court has not been in any way altered or diminished by the Constitution, and Art. 38 must be qualified by Article 34. The distinction between civil and criminal contempt was clearly expressed by O'Dalaigh C.J. in Keegan v. De Burca (1973). Criminal contempt consists in behaviour cal- culated to prejudice the due course of justice, such as contempt in the face of the Court, or words written or spoken to prejudice the due course of justice. Criminal contempt is a common law mis- demeanour, and is punishable by fine and imprisonment at the dis- cretion of the Court. Civil con- tempt arises when there is a dis- obedience to an order of the Court by a third party to the proceedings; in this case, there is no mis- deamour, and the Court will not interfere unless requested to do so. It will be seen broadly that the system of retribution is identical. The cause shown will be allowed and the application to make the conditional orders absolute will be refused. The State (Commins) v. Governor of Limerick Prison and Judge Fawsitt — Finlay P. — unreported — 19th March, 1976. COSTS Motion to review taxation of costs —Reduced fees for counsel dis- allowed, but reduced fees for solicitor's instructions on brief allowed. The plaintiff's solicitor was dis- satisfied with various allowances and disallowances on taxation, carried in objections, which were ruled upon on 15th October, 1974, relating mainly to fees paid to counsel. The action related to a licence to carry on business as bankers which was granted by the defendants subject to very stringent

contempt by giving undertakings to the Court, which he disobeyed. He was summoned before Judge Faw- sitt at Waterford on 25th February, 1976, and his counsel referred to Parke J.'s decision in McEnroe v. Leonard (see March Gazette, Vol. 70, No. 2, 1976). The Circuit Court strangely refused to accept a valid decision of the High Court, and counsel withdrew. Thereupon Judge Fawsitt found the prosecutor guilty of contempt of Court, and committed him to Limerick Jail until his contempt was purged. On 26th February, an application was made for a con- ditional order of habeas corpus and certiorari and the prosecutor was released on bail. It was submitted by the prose- cutor first that, because the penalty imposed by Judge Fawsitt was in- definite imprisonment, the con- tempt could not be a minor offence, but a criminal offence, and that accordingly under Art. 38(5) of the Constitution, he was entitled to a jury. Secondly, it was submitted that, on a contempt of Court charge, the Court had no jurisdic- tion to impose anything other than a fixed term of imprisonment. The position appears to be that, whatever the position was before the present Constitution of 1937 was enacted there is now no real distinction between criminal and civil contempt of Court. Every con- tempt of Court is a criminal offence, in that it is a breach of the law committed by an overt act requiring mens rea and punishable by imprisonment. It was submitted by the respon- dents firstly that there is an in- herent power in the Courts estab- lished under the Constitution to deal with both civil and criminal contempt by attachment and com- mittal in a summary fashion. They relied on A.-G. v. Sean T. (sub- sequently President) O'Kelly — (1928) I.R. 308 and A.-G . v. Ross Connolly — (1947) I.R. 213. It was then submitted that there is a well recognised difference between con- tempt consisting of disobedience of an act committed outside the Court, and of an act committed in the face of the Court. In the first case, the purpose of the Court Order is to coerce the person im- prisoned to obey the order of the Court, but it is not a punishment as such. Parke J. had referred in McEnroe v. Leonard to Comet Products v. Hawtex Plastic Products — (1971) I All E.R., where, when a defendant has filed an affidavit in proceedings

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