The Gazette 1983

GAZETTE

JULY/AUGUST 1983

may have to balance one feature which may suggest that

the proceeding is criminal against another feature,

which may suggest the contrary. Although this

pragmatic case-by-case approach has been trenchantly

criticised as constituting a confession of intellectual

bankruptcy

other eminent jurists may stand convicted

on the same charge. Lord Atkin in

Proprietory Articles

Trade Association

A.G. for Canada

said that it was

important to ask the question, "Is the act prohibited

with penal consequences?".

It is said that where the complaint is of non-

compliance with a court order or an undertaking, the

purpose and intended outcome of the proceedings will

typically be remedial or coercive. In the leading

American case

Gompers

Bucks Stove and Range

Co.

the matter is stated thus:-

"It is not the fact of punishment but rather its

character and purpose that often serves to distinguish

between the two classes of case. If it is for civil

contempt the punishment is remedial and for the

benefit of the complainant. But if it is for criminal

contempt the sentence is punitive to vindicate the

authority of the court".

It is submitted that the sentiments contained in this

statement are misleading in that they tend to obscure the

punitive element which may lie behind civil contempt

proceedings. Civil contempt cases are not concerned

simply with matters of private right. Civil contempt

plays an important part in our legal system in aiding the

enforcement of court orders. The value of a right to a

litigant is no greater than the available remedy. Lord

Diplock has recently recognised

that there is an

element of public policy in punishing civil contempt

since the administration of justice would be undermined

if the order of any court of law could be disregarded with

impunity. This aspect of contempt has come to the

forefront in recent times with the reluctance on the part

of some trade unionists to comply with the terms of in-

junctive relief granted against them, as in the Ranks

dispute.

It has been demonstrated that there are public interest

considerations in the punishment of civil contempt. Also

the consequences committal entails for an individual are

heavy and burdensome. After taking cognisance of

these factors, one can seriously question the exclusion of

a civil contemnor from the pale of protection afforded

the criminal defendant. In partial recognition of this,

proceedings for civil contempt have been held to have

acquired safeguards usually associated with a criminal

trial.

The alleged contemnor cannot be compelled to

answer interrogatories or to give evidence against

himself and the presiding judge has a discretion to dis-

allow cross-examination on an affidavit where this

would operate unfairly. There does not seem any reason

in justice, equity or fairness for not providing the alleged

contemnor with the full panoply of protection made

available to his criminal counterpart.

.G. v

O'Kelly

In A.

O'Kelly

the proper interpretation of

Article 72 of the Free State Constitution was at issue.

This provided for trial by jury and the exceptions to this

principle envisaged in it did not encompass cases of con-

tempt. Nonetheless it was held by a Divisional High

Court (Sullivan P., Hanna J. Meredith J. dissenting)

that this right only applied to trials of criminal offences

by ordinary criminal process and did not concern the

jurisdiction of the High Court to deal summarily with

contempt, a jurisdiction that was inherent in it as a Court

of Record. Sullivan P. quoting Palles C. B. in

A. G.

Kissane

said:-

"The trial by jury is one part ot the system; the

punishing of contempts of court by attachment is

another; we must not confound the modes of proceed-

ing and try contempts by juries and murders by attach-

ment".

The power of the courts concerning contempts was

described as being coeval with their first foundation and

institution. The rationale of summary jurisdiction was

that

"if we are to wait for [punishment for contempt] to be

done by ordinary criminal process and an ordinary

trial, there might be great mischief done, because that

process is slow, and before that process could come

into train, the mischief would be done by the due

administration of justice being hampered and

thwarted".

This statement is somewhat ironical in light of the fact

that in the

O'Kelly

case the Attorney General did not

start proceedings until 13 days after the publication. This

lack of promptitude moved Meredith J. to dissent from

the holding of his brethren. He suggested that the

procedure should have been by way of information

"if the case was one which could have afforded the

delay occasioned by these proceedings and of having

this court constituted it could have afforded the delay

of proceeding by way of criminal information, which

would have been no greater".

From the accused's point of view, the advantage of the

procedure by way of information is that it would mean

trial by jury.

The principles enunciated in A.

O'Kelly

relation to the constitution of the Free State Constitut-

ion insofar as it affected cases of contempt were

considered and approved by the then Supreme court in

Re Earle

Fitzgibbon J. expressed himself as follows:-

"Whatever the source of the exercise of judicial power

in Courts of Record to fine or imprison by summary

process contempts in court or out of court may be,

whether immemorial usage as asserted byWilmot J. in

Almon's

case and those great judges and commentat-

ors who have followed him, or a gradual process of

development, the existence of such a power has, as

regards Superior Courts of Record at any rate Receiv-

ed the sanction express or implied, of so many

authorities including the legislature itself, that it must

now be recognised as part of the law of the land".

In this connection it is also apt to appreciate the

observations of Frankfurter J. in

U.S.

Green

where

the learned judge pertinently remarked that law is a

social organism, and evolution operates in the

sociological domain no less than in the biological. The

vitality and therefore validity of law is not arrested by

the circumstances of it origin. What Magna Carta has

become is very different indeed from the immediate

objects of the barons of Runnymede. Be that as it may, it

is interesting to note that the summary procedure, as

applied to the general range of contempts, appears to

179