The Gazette 1976

J UNE /J U LY 1976

GAZETTE

RECENT IRISH CASES

There was some surprise expressed that it was Mr- Goldberg who was known throughout the country. He was not, in any sense, known as habitually dealing with political or Republican people, or being in any way anti-Establishment- He re- garded it as both of interest and importance, but essentially dan- gerous, and considered that it should be examined carefully for libel. The Department of Justice was contacted as well. The question of contempt of court did not arise. Mr. Cooke — You were more worried about libel? — We were. At the time there had been no pre- cedent for contempt of court, in my experience. This was in July, 1975. It would be quite different now be- cause, following the appointment of the Director of Public Prosecutions, these cases have become quite pre- valent. Every newspaper in Dublin has been prosecuted for contempt of court, as well as Hibernia- Opening the case for Mr. Gold- berg, Mr. John Lovatt-Dolan, S.C., submitted that the allegation of con- tempt by his client had been con- tained in an article which he did not write and for which, in one sense, he could not be legally re- sponsible. He might have been fac- tually responsible in the sense that he supplied certain information as a result of which the article was writ- ten but he could not be responsible for the form the article took. He submitted that in those circumstan- ces he could not be found guilty of contempt because he could have no control over what was written. The President said that if Mr. Goldberg was writing to the Min- ister and not for publication, it was probably unnecessary to be cautious- Writing a letter to the Minister could never be contempt but the difficulty was writing to him and offering it to the press for public- ation. . Mr. Lovatt-Dolan submitted that the actual wording used could not conceivably influence the course of the trial. The accused persons, at that stage, were innocent and the presumptions were entirely in their favour and the claim that the state- ments were not voluntary could not be to their disadvantage. Mr. Lovatt-Dolan submitted that an accused person was entitled to a declaration of his own innocence on TV or in the news media. Such a declaration could not be con- strued as interfering with the course of justice. The President said that no com- ment likely to prejudice the course 37

Mr. Richard N. Cooke, S.C., re- presenting Irish Press Ltd., Mr. Coogan and Mr. O'Mahony, said he had not put in a replying affi- davit because he was prepared to offer Mr. Coogan and Mr- O'Mahony as witnesses to give evid- ence and to be cross-examined if either party wished- Mr. Cooke said the article in question contained an abstract of a letter written by an officer of the Court in the performance of what he (Mr. Goldberg) conceived to be his duty in relation to his clients. The letter was issued on behalf of the solicitor to the newspapers. There was no doubt about its auth- enticity or origin. It did not occur to any of the ex- perienced journalists assembled in conference that it was in any way a contempt of Court, or could be so construed. Mr. Cooke said the article was vetted by two senior journalists with 20 years' and 40 years' experience, to make sure it was not libellous. The most striking thing about it was that it never occurred to anybody that it could be contempt of court. He claimed that what had been published had been a statement of fact which bore on a trial that might take place. Where the publication did not bear directly on the guilt or innocence of an accused person it did not affect the defence or the prosecution. One must look keenly at what had been actually said be- cause there was the primary factor of prejudice in either taking up the case for or against the accused per- sons. "I would like to make the news- papers position clear. We had no intention whatever of being guilty of contempt of court." Thomas O'Mahony said the letter which was the basis of his article had been received by him in the Cork office of the Irish Press- Its origin had been authenticated to him by a colleague and he had no doubt as to its origin. He took the view that if a man of Mr- Goldberg's standing had felt it necessary to make a statement of this kind then that in itself was obviously newsworthy. The matters referred to in the statement were obviously of considerable public im- portance and he therefore felt he had a duty to report the substance of the document, which he did. Timothy Coogan, editor, said Mr. O'Mahony had let them know in advance that the article was coming, so it appeared on the news list.

CONTEMPT OF COURT High Court discharges conditional order against Irish Press Ltd. and others for contempt. The President of the High Court (Mr. Justice Finlay) on 15 Decem- ber refused to make absolute con- ditional orders of attachment in proceedings in which the Director of Public Prosecutions sought to have Irish Press Ltd., the editor, Mr. Tim Pat Coogan, Mr. T. P. O'Mahony, a journalist, and Mr. Gerald Y. Goldberg, a Cork solicitor, committ- ed to prison for contempt of court. The President said he was satis- fied that good cause had been shown by all the respondents against the making absolute of the conditional order. The matter arose out of the pub- lication of an article in the Irish Press on July 11th, 1975, under the heading: "Torture being used on suspects, says lawyer". The article referred to an open letter by Mr. Goldberg to the Min- ister for Justice regarding allegat- ions concerning his clients in cus- tody. When the original order of attachment was made by the Court in July 1975, an affidavit by Walter Carroll, a solicitor attached to the office of the Director of Public Pro* secutions, was before the Court. He said that three of the persons men- tioned in the column, Bernard Lynch, David O'Donnell and Bar- tholomew Madden, were on July 11th on remand to the District Court in Cork charged with the murder of Laurence White and that a fourth man, Finbarr Doyle, was on remand charged with being an ac- cessory before the fact to murder. Mr. Donal Barrington, S.C., for the Director of Public Prosecutions submitted that the Court was not really concerned with these alle- gations- The only issue for the Court was whether the article in question was intended to prejudice the trial of the four men. One of the matters which the Director of Public Prosecutions complained of was the statement of the solicitor's letter which said that certain statements made by the accused persons were not voluntary. The Director brought the matter to the Court's attention because he feared it might prejudice the in- tended trial.