The Gazette 1983

GAZETTE

SEPTEMBER 1983

The Right to Jury Trial in Cases

of Contempt

Part 2

Gerard McCormack, B.C.L.

McEnroe v Leonard

While the U.S. authorities were not the subject of

Irish judicial deliberation until the case of

The People

(D.P.P.)

Walsh and Connelly

in 1981, the early

1970's saw increased solicitude for the protection of pro-

cedural guarantees. This concern found expression in

Re Haughey

where the constitutional propriety of

section 3 (4) of the Committee of Public Accounts of

Dail Eireann (Privilege and Procedure) Act 1970 was at

issue. This provided that where a witness refused to

answer a question lawfully put by the Dail committee he

was guilty of a statutory offence punishable in like

manner as if he had been guilty of contempt of the High

Court. Thus a person convicted under the section was

liable to fine and imprisonment at discretion i.e. without

statutory limit. Because of the severity of the possible

penalty the crime committed was outside the minor

offence category and was not constitutionally triable

summarily.

In Re Haughey

appears to have been

misinterpreted by Parke J. in

McEnroe

Leonard,

case in which the defendant had disobeyed a court order

in civil proceedings. It was taken as supportive of the

proposition that a jury trial was a constitutional

prerequisite in cases of contempt, whereas in

In Re

Haughey

the court was concerned with a statutory

offence, the punishment for which had been assimilated

to contempt. This mistaken reliance was pointed out by

Finlay P. in

The State (Commins)

McRann*

who also

indicated further flaws in Parke J's reasoning. The

learned judge had referred to

Comet Products (U.K.)

Ltd

Hawkex Plastics Ltd

where it was held that a

party charged with civil contempt could not be

compelled to answer interogatories, or to give evidence

against his will so as to incriminate himself but no direct

question arose in that case as to the right of a person

against whom civil contempt was alleged to trial by jury.

TTie English court of Appeal merely applied the

inveterate common law principle stated by Bowen L. J.

Redfern

that a party cannot be compelled

to discover that which if answered would tend to subject

him to any punishment, penalty or forfiture. In light of

the foregoing facts Finlay P. in

McRann

refused to

follow

McEnroe

Leonard

and also because relevent

earlier authorities had not received the consideration of

Parke J.

The State (Commins) v McRann.

In this case Finlay P. after reviewing the earlier

authorities, opined that it would be wrong to construe

Article 38 of the Constitution of 1937 as depriving the

courts of a long-established jurisdiction to punish in a

summary manner contempt of court whether the

contempt was committed in the face of the court or

outside it, and whether it be classified as civil or criminal

contempt. The case involved disobedience to a Circuit

Court order in a civil action but the learned judge's

observations are certainly susceptible of application to

the criminal contempt sphere. The terms of Article 34 of

the Constitution stipulating that justice shall be adminis-

tered in courts established by law and by judges

appointed in accordance with the Constitution

constituted a qualification upon the apparently

imperative provisions of Article 38. His lordship

defended himself by means of an example. If the

contention that an alleged contemnor was entitled to

trial by jury was correct then in the event of a court's

order having been disobeyed or in the event of a court

suffering contempt in its face, the A.G. or now the

D.P.P. would have to be relied on to present an indict-

ment and to try the person alleged to have been guilty of

such contempt before a jury. That construction, the

President said seemed to construe Article 38 as

depriving the courts of the right to enforce their own

orders - a denial of the fundamental tripartite division of

powers which underlies the entire Constitution. The

President envisaged that a situation could arise in which

the court was obliged to restrain directly the commission

of an act by the Executive or by an agent of the

Executive so as to preserve the right of an individual.

Furthermore by non-activity, the Director, a servant of

the Executive, could paralyse the capacity of the court to

enforce its will against him. This would be a vital

infringement of the independence of the judiciary.

Protestations to the contrary notwithstanding, the

ultimate effect of this argument is to ride roughshod over

the rights of citizens. In

McMahon

A.G.

McLoughlin J. pertinently stated that it was no part of

the function of the courts to forge from the iron of the

constitution, shackles designed to prevent a happening

which in the light of experience and reason can never

happen. Further it was authoritatively asserted in

Byrne

Ireland

that in the event of an award of damages

being made against the State, there was no reason to

believe in a State governed according to the rule of law

that the necessary moneys to meet the decree would not

be voted. Budd J. opined that the possibility of the State

failing to honour its legal obligation was so remote that

no real difficulty of the kind envisaged had been shown

to exist. Thus Finlay P. is seen to have impaled himself

on the horns of a dilemma that was purely of his own

creation. However the reasoning in

The State

(Commins)

McRann

was unhesitatingly accepted by

the Supreme Court in

The State (H)

O'Daly

9 and it

was confirmed that the determination of an issue as to

whether or not a person was guilty of a civil contempt of

court did not require a trial by jury.

(continued on p. 212)

209