The Gazette 1976

GAZETTE

UNE

1976

RECENT IRISH CASES

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.

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.

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