The Gazette 1983

GAZETTE

JULY/AUGUST1983

impossible to define in a comprehensive way or rather

to delimit the circumstances under which a contempt

of court by the obstruction of justice may be

committed, and no judge or court has ever presumed

to lay down any such limitation".

This statement ill-resides with the idea expressed in

King

v D. P. P.

that the criminal law must be certain and

specific so that an individual is capable of ascertaining

what is required of him so as to adjust his conduct to the

dictates of the law. It also leaves scope for arbitrary and

discriminatory enforcement and the ill-defined and

uncertain potentialities associated with the exercise of

the contempt power may operate to deter persons from

engaging in otherwise unobjectionable activities.

Civil and Criminal Contempt

Considerations of imprecision aside, the existence of a

summary power to commit persons to prison for con-

tempt of court has often been asserted by our judges. A

basic distinction must be drawn at the outset between

civil and criminal contempt. This differentiation has the

authority of the Supreme Court. O'Dalaigh C.J. put the

matter thus in

Keegan

De Burea:

"The distinction between civil and criminal contempt

is not new law. Criminal contempt consists of

behaviour calculated to prejudice the due course of

justice, such as contempt in

facie curiae

, words written

or spoken or acts calculated to prejudice the due

course of justice or disobedience to a writ

othabeas

corpus

by the person to whom it is directed

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but some examples of this class of contempt. Civil con-

tempt usually arises where there is disobedience to an

order of the court by a party to the proceedings and in

which the court has generally no interest to interfere

unless moved by the party for whose benefit the order

was made. Criminal contempt is a common-law

misdemeanour and as such, is punishable by both

imprisonment and fine at discretion, that is to say,

without statutory limit, its object is punitive....Civil

contempt, on the other hand, is not punitive in its

object, but coercive in its purpose of compelling the

party committed to comply with the order of the court,

and the period of committal would be until such time

as the order is complied with or until it is waived by the

party for whose benefit the order was made".

In this case during the hearing of a motion following

civil proceedings the defendant refused to answer a

relevant question which the judge had asked. The latter

thereupon sentenced her to be imprisoned "until she

purge her said contempt". The Supreme Court, on an

appeal brought by the defendant accepted the

contention that her conduct in refusing to answer the

learned judge's inquiry amounted to criminal contempt

facie curiae

which could be disposed of summarily.

The court reserved its opinion as to those categories of

criminal contempt which would not be triable

summarily. However O'Dalaigh C.J. with whom Walsh

J. agreed, opined that the President, at first instance,

was in error in imposing a sentence of imprisonment of

indefinite duration instead of a determinate sentence.

The case should be remitted to the High Court for the

imposition of an appropriate penalty. McLoughlin J., in

what has been described as a persuasively argued judg-

ment ,

dissented. He was of the view that in such a case

as this the purpose of a sentence is not primarily punitive

but coercive. Refusal by a party sworn to answer a

question was not an act complete in itself, but was an

offence which continued so long as the refusal continued

and could not be appropriately measured while the

offence continued; if dealt with by a fixed sentence, the

sentence might be oppressive on the offender, whereas a

sentence which ended when the offence ceased and the

contempt was purged could not be oppressive. It was not

the declaration of refusal to answer the question but the

failure to comply with the requirement which was the

gist of the offence.

Keegan

De Burca

is cogent testimony to the fact that

the dividing line between the two forms of contempt is

not clearly drawn. Grey areas exist. Above all, while the

distinction is a time-honoured one, the justification for

its existence may be questioned especially in a

jurisdiction with a written constitution incorporating a

Bill of Rights. A modern Constitution for a New State

should not be construed in the light of judicial survivals

of an earlier age.

InMelling

O'Mathghamha

conduct

meriting condemnation was classified as civil or criminal

largely according to the consequences with which it was

visited. Both forms of contempt may involve the loss of

an individual's liberty; this being so, the argument can

be made for the assimilation of the two branches of con-

tempt. According to Professor Glanville Williams,

crime is an act capable of being followed by pro-

ceedings having a criminal outcome, and a proceeding or

its outcome is criminal if it has certain characteristics

which mark it as criminal. In a marginal case the court

178