The Gazette 1995

GAZETTE

JANUARY/FEBRUARY 1995

clear that liability will accrue only

j when the act or omission (deemed to

be contempt) was

intentional

reckless.

In relation to disclosure:-

"Legislation should provide that a

person may only be required to

disclose the source of information

contained in a publication for which

he or she is responsible, if it is

established to the satisfaction of a

Tribunal of Enquiry that disclosure

is absolutely necessary for the

purpose of the enquiry or to protect

the constitutional rights of the

other person".

The Policy Rationale of the

Recommendations

In considering whether to replace the

existing Common Law structure of

contempt with a new statutory

scheme, the Commissioners approach

is to acknowledge first; under the

Constitution judges are independent in

the discharge of their functions.

Second; justice is administered in

public save in those special and

exceptional cases permitted by law.

Third; the constitutional right of

freedom of expression and of

communication of information.

Criminal Contempt

This comprises contempt in the face

of the Court

(in facie

curiae);

scandalising the Court; breaches of

the

sub judice

Rule, and other

interference with the administration of

justice such as threatening a witness.

Sentencing may under this heading be

punitive as distinct from coercive, in

civil contempt.

The Report recommends that the law

in respect of contempt in the face of

the Court (which is generally an act

which cannot be undone) with the

penalty of attachment should be

retained without amendment.

T.V. in the Courtroom

This subject

impinges on privilege. The Report

sees a need for change in media

coverage of proceedings and

advocates the establishment of an

Advisory Committee to review the

arrangements for and legal provisions

relating to the recording and

broadcasting of Court.

Scandalising the Court

This offence

should be defined by statute and

consist of:-

(i) Imputing corrupt conduct to a

Judge or Court.

(ii) Publishing to the public a false

account of legal proceedings.

A person should be guilty of the

offence only where he or she knew

there was a substantial risk that the

publication would bring the

administration of justice into serious

disrepute or was recklessly indifferent

as to whether it would or not, and in

the case of a publication of a false

account, only where he or she

intended to publish a false account or

was recklessly indifferent as to

whether it was false.

The truth of a communication should

render it lawful.

Sub Judice

There should be a new statutory

definition for prosecution purposes of

what constitutes publication for

breach of the Sub Judice rule. The

offence would be confined to a

substantial risk

of prejudice to the

procedure of justice. The over-riding

considerations in this area are "serious

prejudice" and "negligence" in

relation to the publication.

There should be an express statutory

defence to

sub judice

contempt for fair

and accurate reports of proceedings in

the Oireachtas published

contemporaneously with, or within a

reasonable time after, the proceedings.

There should be no Oireachtas

power to inhibit publication of any

portion of the proceedings on the basis

that it may offend against the sub

judice rule.

Other Interferences

The Report recommends:

a prosecution should only lie where

the impugned conduct creates a

substantial risk of serious

interference with the administration

of justice;

mens rea

would require

the elements of intention or

recklessness. A new statutory

offence should discourage threats or

reprisals against a party to civil

proceedings.

Civil Contempt

This arises from defiance of a Court

Order. Imprisonment should be

retained as a sanction in civil

contempt and Fines should continue to

have a role to play.

The offence should have the

mens rea

element of knowledge of risk of

breaching or of intention to breach a

Court Order.

Family

Contempt proceedings should

continue to apply to family litigation.

District Court and Circuit Court

These Courts should have full

jurisdiction in relation to criminal

contempt. Fines should be subject to

maximum sums.

Mode of Trial

The uncertainties in the law with

respect to mode of trial for criminal

contempt should be resolved by a

future decision of the Supreme Court.

There should be no change in the

summary mode of trial for civil

contempt.

Conclusion

I hope the above may give a flavour of

the range and thrust of the report. In

the long term many of the issues

raised may be seen in the light of a

Freedom of Information Act and a

Citizens Charter of Rights - with

possible constitutional changes

required in the context of North/South

relations. This is the 47th Report of

the Law Reform Commission. It

together with the erudite consultation

paper which preceded it, are

invaluable publications.

Franklin J. O 'Sullivan