The Gazette 1983

GAZETTE

PTE

BER 1983

right to trial by jury. This was so, Henchy J. said,

because the question whether the rules of evidence had

been abused was always a question of law to be determ-

ined by the presiding judge or judges before whom such

a question validly arose.

This latter line of reasoning is open to attack. Criminal

contempt of court by scandalising the courts is not

committed merely by making erroneous statements

While it is not possible to chart with accuracy the limits

of invective, it has often been emphasised that the

bounds of propriety are passed only when what is said

amounts to scurrilous, outrageous abuse.

"The path of criticism is a public way; the wrong-

headed are permitted to err therein; provided that

members of the public are genuinely exercising a right

of criticism and not acting in malice or attempting to

impair the administration of justice, they are immune.

Justice is not a cloistered virtue: she must be allowed

to suffer the scrutiny and respectful, even though out-

spoken, comments of ordinary men".

These observations of Lord Atkin in

Ambard

A.G.

for Trinidad and Tobago

were cited with approval by

the Supreme Court in

In Re Hibernia.

They are

illustrative of the proposition that factual accuracy is not

required for comment to escape condemnaton as

criminal contempt by scandalising the courts.

Reg.

Metropolitan Police Commissioner, Ex Parte Blackburn

(No. 2)

may also be referred to. There "Punch's"

criticism of the Court of Appeal was erroneous as to fact

and rumbustious in its tone, while its fairness and good

taste were open to doubt. But it was not contempt of

court. In

The State (D.P.P.)

Walsh and Connelly

Henchy J. remarked that it would be utterly inappropr-

iate to leave laymen with the task of deciding if the abuse

at issue amounted to criminal contempt because of the

varying standards and values that juries would be apt to

apply. However judicial reaction is also not easily pre-

dictable. It may be said:-

"Since the judiciary does not have a common

threshold of tolerance it is to be expected that judges'

reactions to criticism will not be uniform and the

resilience of the judicial epidermis will vary from

court to court. Other areas of our law may be codified

by statute or rationalised by a zealous Supreme Court

or House of Lords, but in this field the subjective

judgment seems destined to remain unchallenged, it is

unlikely that we shall ever find a judge on the

Clapham Omnibus".

Conclusion.

In the final analysis it is submitted that the court in

The

State (D.P.P.)

Walsh and Connelly

were unduly

sw ayed by the allegedly awful consequences which they

foresaw if thev decided otherwise than they did.

Due respect for the courts and their mandates would be

much more likely if they faithfully observed the spirit

and letter of the constitutional requirement of

fundamental fairness of procedure. Also in practice the

Irish Courts have not always lived up to the theoretical

entitlement of persons to indulge in robust but fair

criticism. The contempt cases involve the Constitution

being read in its historical contest. Invocation of this

canon of construction is, it is submitted, indicative of a

result-oriented

approach

towards questions of

constitutional adjudication. Professor Kelly, in a

216

perceptive comment which is borne out by a study of the

decided cases had said: "the principle of interpretation

which admits as a consideration...the state of law and

public opinion at the time of the enactment of the con-

stitution is peculiarly liable to subjective application".

The importance of procedural safeguards in securing a

citizen's inestimable liberty also appears to have been

ignored in the contempt cóntext. One might echo the

view of Frankfurter J. in

McNabb

U.S

that the

history of liberty has largely been the history of obser-

vance of procedural safeguards. Experience has

counseled that safeguards must be provided against the

dangers of the overzealous as well as the despotic. The

lawful instruments of the criminal law cannot be

entrusted to a single functionary. Also it might be said in

the words of Lord Devlin that:-

"Trial by jury is more than an instrument of justice

and more than one wheel of the constitution, it is the

lamp that shows that freedom lives".

The author would like to thank Mr. T. A. Cooney for his very helpful encourage-

ment in the writing of this article. •

(Footnotes)

41. Supreme Court, unreported 6 February 1981.

42. [1971] l.R. 217

43 High Court, unreported 9 December 1975.

44. [19771 l.R. 78.

45. [1971] 20.B. 67.

46. (1891) p. 139.

47. [19721 l.R. 114.

48. 119721 l.R. 241.

49. [19771 l.R. 90.

50. At page 30of his unreported judgment Henchy J. went on to state that to the

extent that such mode of trial may require the co-operation of the D.P.P. if

such co-operation were not forthcoming, the inherent powers of the courts

would comprehend the capacity to compel such co-operation. However

earlier at pages 21 and 22 the learned judge appears to imply that civil con-

tempt prtKeedings do not constitute the trial of a criminal offence and thus

an alleged contemnor in such a case would not he entitled to trial by jury. He

said: "While important procedural differences have always existed between

trial by jury for other criminal offences and the summary trial of contempt at

court, such differences do not detract from the fact that a criminal contempt

is a criminal offence and that it is not he equated with a civil contempt".

51. See page 3 of the judgment of O'Higgins C. J.

52. At page 11 of his unreported judgment.

53. At page 19 of his unreported judgment.

54. [1933] l.R. 74. 97.

55. [ 195(1] l.R. 67. 8(1.

56. Statement of American lawyer quoted by Black J. in

U.S.

Green

356 U.S.

165. 214.

57 This exception is well-established. See

District of Columbia

Clawans

300

U.S. 617 (1937).

58. (1974) 418 U.S. 506. 522.

59. At page

of his unreported judgment.

60. Ibid at p. 28.

61 The responsibility of the appellants for the dissemination of the offensive

material was confirmed hy the Supreme Court (Henchy. Griffin and Kenny

.1. J.) in

The State {D.P.P.)

Walsh and Connelly

(No. 2) Supreme Court,

unreported 18 March 1981. The view was expressed that no issue of fact as

to the appellants" guilt remained to he decided.

62. 119361 A C. 322 at p. 335.

63. [I936|

A C.

322.

64. [1976] l.R. 388. It should he noted that in this case the defendants did not

get anv trial never mind a trial hy jury. The D.P.P. applied

ex parte

to the

High Court for conditional orders of attachment and sequestration. When

this application was refused he appealed to the Supreme Court without

notice to the prospective defendants. The Supreme Court held the orders

should issue without hearing the other side. The permissibility of this

practice may have to be reconsidered in the light of

Re Zwann

(1981)

I.I R.M 333

65. [1968] 2 O.B. 150.

66 M. Russell "Contempt of Court" (1968) 3 Irish Jurist I at page 3.

67 Kelly op. eit. p. 241.

68. 318 U.S. 332. 347.

t rial h\ Jury

(1966 cd. I p. 164.