The Gazette 1976

231 / 274

GAZETTE JUNE/JULY 1976
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
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
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