The Gazette 1995

GAZETTE

JANUARY/FEBRUARY 1995

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.

clear that liability will accrue only j when the act or omission (deemed to be contempt) was intentional or 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". 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 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 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 The Policy Rationale of the Recommendations i freedom of expression and of communication of information. Criminal Contempt penalty of attachment should be retained without amendment.

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.

Civil Contempt

(ii) Publishing to the public a false account of legal proceedings.

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.

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.

Family

Contempt proceedings should continue to apply to family litigation.

The truth of a communication should render it lawful.

District Court and Circuit Court

These Courts should have full jurisdiction in relation to criminal contempt. Fines should be subject to maximum sums.

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.

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. 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. Conclusion

Other Interferences

The Report recommends:

a prosecution should only lie where the impugned conduct creates a substantial risk of serious interference with the administration

Franklin J. O 'Sullivan

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