190 / 346
GAZETTE
SEPTEMBER 1983
is no substantial difference between serious
contempts and other serious crimes. Indeed in con-
tempt cases an even more compelling argument can be
made for providing a right to jury trial as a protection
against the arbitrary exercise of official power.
Contemptuous conduct, though a public wrong, often
strikes at the most vulnerable and human qualities of a
judge's temperament. Even when the contempt is not
a direct insult to the court or the judge, it frequently
represents a rejection of judicial authority or an inter-
ference with the judicial process or with the duties of
officers of the court".
39
This represents a reiteration of the points made by
Black J. (dissenting) in
U.S
v
Green
where the learned
judge stated that when the responsibilities of law maker,
prosecutor, judge, jury and disciplinarian are thrust
upon a judge he is obviously incapable of holding the
scales of justice perfectly fair and reflecting impartially
on the guilt or innocence of the accused. No official
regardless of his position or the purity and nobleness of
his character should be granted such autocratic
omnipotence. Judges are not essentially different from
other public functionaries. Like all the rest of mankind
they may be affected by pride and passion, by pettiness
and bruised feelings, by improper understanding or by
excessive zeal. Frank recognition of these common
human characteristics, undoubtedly led to the determin-
ation of those who framed our Constitution to fragment
the power to define and enforce the criminal law, among
different departments and institutions of government in
the hope that each would tend to operate as a shield
against their excesses thereby securing the people's
liberty. The force of these considerations cannot be
underestimated.
The preponderance of judicial opinion in the United
States is now to the effect that summary proceedings in
cases of contempt are permissible only where they are
sanctioned by the historical exception to entitlement to
jury trial covering petty offences and where no
maximum penalty is statutorily authorised the penalty
actually imposed is the best indication of the seriousess
of the offence. This state of affairs is not above object-
ion in that it requires the court to exercise what is in
cffcct. a prosecutorial function of designating the
alleged contempt as "petty" or "serious" before
proceeding to deal with it.
40
Nevertheless notwithstand-
ing this theoretical imperfection the American approach
has the obvious advantage of ensuring compliance with
the spirit and essence of the constitutional command re-
garding jury trial.
I'an 2 itl this article will he published in the October Gazette.
Footnotes.
1 See /)c
Hnrea
v
A. G
|I976| I.R. 38.
The Slate IByrneI
v
Frawlev \W7H]
I.R. 326
2 ||96X| .VII U.S. 145 :il pp. 155-156
V
119331 I.R. 3115. 341.
4
Supreme Court, unreported 31 July IWO. nolcd by T. A. M. Cooney 15
Irish Jurist 28V (IWO).
< 11«1731 I.R. 223.
(, See
He Earie
11*13X1 I .R. 4X5 ef. Henehv J. in
The Slate I DP
P ) v
Walsh
ami Connelly
Supreme Court, unreported.6 February IWI at page 3 of
his unreported judgment where he stales Ihill the case was conecrncd
with a question of w hat is pchaps now only a civil contempt i.e. failure to
ohcy an order of
habeas corpus
in respect of a child whose custody was
in issue.
7. [1973] I.R. 223. 227 See also the observations of Lord Denning in
Danchevsky
v
Danchevsky
[1974] 3 All E.R. 934 937 which were cited
with approval in
The Slate (D.P.P.)
v
Walsh and Connelly
"It seems to
me that when the object of the committal is punishment for a past
offence, then if he i.e. the contemnor. is to be imprisoned at all. the
appropriate penalty is a fixed term. When it is a matter of getting a
person to do something in the future - and there is a reasonable prospect
of him doing it - then it may be quite appropriate to have an indefinite
order against him until he does it".
X. See J. M. Kelly
The Irish Constitution
(1980) p.207 footnote 50.
9. 11962J I.R. I.
Id. "The Definition of a Crime" (1955) C.L.P. 107 at 130.
11. Sec Osborough "Melling v O'Mathghamahna" (1964) 30 Irish Jurist 32
at 34 Footnote N.
12. (1931) A. C. 310 at 324.
13. 221 U.S. 418.441 (1911)
14.
A. G.
v
Times Newspapers Ltd.
[1974) A. C. 173. 308.
15. See
Comet Products (U.K.I Lid.
v
Hawkex Plastics Lid.
[19711 2Q.B.67.
16. [19281 I.R. 308.
17. (1893)32
L.R.Ir. 220.271.
18. [19281 I.R. 308.313.
19. Ibid at 314 citing Blackburn L. J. in Skipworth's case L.R. 9Q.B. 230. 232.
20. On which see J. P. Casey
The Office of Attorney General in Ireland
(1980)
pp. 125 - 128.
21. [I928U.R. 308. 325.
22. [19381 I.R. 485.
23. Ibid at 493.
24. 356 U.S. 165(1958).
25. See Sir John Fox
The History of Contempt of Court
(1927).
26.
R.
v
Almon
(1765) Wilm. 234.97 E.R. 94 See also Sir John Fox "The King v
Almon I"( 1908)24 L O R- 184.
27 4 B & Aid. 219. 233 106 E.R. 918. 923 per Halroyd J.
28. 13 E.R. 15 discussed hv Fox (1908) 24 L O R. 184. 185 - 8.
29. 15 A.C. 506.
30. [19671 I.R. 147.
31. Sec also Henchy J. in
The State (D. P.P.)\ Walsh and Connelly
at page 17of
his unreported judgment "Having regard to the fact that a number of
important constitutional rights are implied, rather than expressly
articulated in the Constitution, one must read that rule of constitutional
interpretation as saying that the ordinary or literal meaning of an inclusion
or an exclusion effected hv the Constitution may be overborne not only by
an express provision of the Constitution which is inconsistent with the
inclusion or exclusion in question hut also hy a conflicting provision which
has to be imported into the Constitution hy necessary implication".
32. 119471 I.R. 213.
33. 376 U.S. 681 (1964).
34. 391 U.S. 194 (1968) Sec Note "Right to Jury Trial in Criminal Contempt
Proceedings" (1968) 82 Harv. L.R. 153.
35. 391 U.S. 194. 197.
36. Ibid p. IW.
37. 384 U.S. 373(1966).
38. 391 U.S. 194(1968).
39. Ibid at pp. 201 - 202.
40. In determining whether or not an offence is a minor offence in this
jurisdiction so as to constitutionally triable summarily the most important
criterion for the consideration of the Court is the amount of the penalty. In
In Re Haughey
[ 197111. R. 217 the Supreme Court stressed the test relates to
the severity of the penalty authorised by law, not to that of the penalty
actually imposed.
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