Supreme Court held High Court was not Central Criminal Court for criminal contempt summary trial.

THE SUPREME COURT

221/05

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

IN THE MATTER OF A CONTEMPT OF COURT AND IN THE MATTER OF AN APPLICATION PURSUANT TO ORDER 44

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant/Appellant

and

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED, GERRARD O’REGAN AND ANN-MARIE WALSH

Respondent/Respondents

Judgment of Mr. Justice Geoghegan delivered the 5th day of March 2008

By a notice of motion grounded on a single affidavit of one John Forde, the Director of Public Prosecutions (“DPP”) sought an order directing the attachment

and committal and/or sequestration of the assets of the above-named respondents for contempt of court in respect of material published in the Evening

Herald newspaper of the 2nd December, 2004 and a further order restraining the said respondents from further publishing material calculated to interfere

with the trial process then in being between the DPP and Patrick O’Dwyer as referred to in the grounding affidavit. The notice of motion was dated 1st

February, 2005. A short replying affidavit sworn by the solicitor for the respondents was filed and apart from those affidavits and a few exhibits therein, there

was no other evidence adduced at the hearing of the motion. The purpose of the replying affidavit was to place before the court certain reports concerning

the pending proceedings referred to as contained in other Irish newspapers. As will have been inferred from what I have already stated, the application was

made in connection with alleged advance adverse publications relating to a person charged with a criminal offence namely, a particularly serious assault. It

was the DPP’s contention that publications in the Evening Herald were calculated to interfere with the course of justice and the trial process and to

prejudice the fair trial of one Patrick O’Dwyer. Contempt of court, from time immemorial, has been categorised in different ways but one of them is that all

contempts are either civil or criminal. It is not in contention that the alleged contempt in this case, if it had been proved, was criminal and that therefore the

respondents would have been punished for a criminal offence.

As this particular case illustrates, however, from time immemorial criminal contempt of court, if not prosecuted upon indictment in the ordinary way, has

been dealt with summarily in the High Court. The historical reason for this was the urgency of obtaining such an order in many instances. Indeed there

appears to be English authority to the effect that the summary procedure was only appropriate if there was this element of urgency. On this appeal, the

court will not be called upon to consider any question as to whether, in cases of serious criminal contempt, a jury would be required, under the

Constitution, to try disputed issues of fact. None of that arises in this case, as the application was dealt with, without objection by any party, as an ordinary

motion on affidavits in the High Court. Dunne J. who heard the motion, by a reserved judgment, granted the respondents a “direction” and accordingly,

refused the application. It is not necessary to consider whether “direction” was the correct terminology in the procedural circumstances of this case. The

fact of the matter is that the order made was one of refusal of the application. On the findings of Dunne J. that was the correct order. Verdicts such as

“guilty” and “not guilty” are not normal or appropriate in criminal contempt cases dealt with summarily upon motion.

The DPP has purported to appeal to this court from that decision. The respondents have raised a jurisdictional objection to the hearing of the appeal.

Although the objection raises different and alternative issues of law, it is nevertheless one single objection and that is to an appeal from what is described

as an acquittal on merits in a criminal case. That this is the objection is clear from both the written and oral submissions made on behalf of the

respondents.

When the appeal came on for hearing, it was agreed between the parties and indeed encouraged by the court that the jurisdictional question would be dealt

with first and the court indicated that that issue would probably have to be decided in advance of any further submissions on the merits. In a context which I

will be explaining, an argument has been made in support of the jurisdictional objection that although nobody thought of it that way or would ever have

thought of it that way, nevertheless Dunne J. hearing this motion for committal was, in point of law, “The Central Criminal Court”. Again for reasons which I

will, in due course, explain, I have come to the conclusion that at this stage that is really the only question which this court can fairly decide. It will emerge

from the judgment that I take the view that the High Court presided over by Dunne J. hearing this motion for contempt was not the Central Criminal Court. If

that view were to find favour with the majority of this court it would not, in my opinion, be appropriate to give any definitive view, without further argument, by

the parties on the issue of whether notwithstanding the provision in the Constitution providing for appeals to this court from all decisions of the High Court

unless the right of appeal has been removed either expressly or by necessary implication by law, there is nevertheless no appeal against an “acquittal”. A

number of issues arise on this aspect of the jurisdictional contention which have not yet been aired in open court and an opportunity for that to be done

would, in my view, have to be given. The basic response of the DPP to the jurisdictional objection is in the terms of Article 34.4.3 of the Constitution. The

relevant part of that provision reads as follows:

“The Supreme Court shall, subject to such exception and such regulations as may be prescribed by law, have appellate jurisdiction

from all decisions of the High Court ....”.

In the introduction to their written submissions, the respondents set out the questions which they say arise in this appeal and they read as follows:

“(i) Does an appeal by the DPP lie from an acquittal on the merits?

(ii) If an appeal does lie, what is the test for same?

(iii) Did the trial judge make an error such as would lead to the verdict of acquittal being overturned?

(iv) If so, what would the consequences of such a decision be?”

The respondents have indicated a broad approach to their obvious problems in this regard bearing in mind the majority decision in The People v. O’Shea

[1982] I.R. 384. In addition, the respondents appear to be discrediting the concept of an appeal on the basis that this court effectively would be asked to

convict the respondents of a criminal offence and to carry out its own sentencing. All of these arguments are fraught with obvious difficulties but more or

less as an alternative to them or a fallback from them, the respondents rely on section 11(1) of the Criminal Procedure Act, 1993. That subsection reads as

follow:

“The right of appeal to the Supreme Court, other than an appeal under section 34 of the Criminal Procedure Act 1967, from a decision

of the Central Criminal Court is hereby abolished.”

In order to rely on that subsection, the respondents have to satisfy this court that Dunne J., sitting in the High Court dealing with this motion for committal,

was in fact the Central Criminal Court even though that would never have occurred to her or to anybody else. This argument is based on section 11(1) of the

Courts (Supplemental Provisions) Act, 1961 which reads as follows:

“The High Court exercising the criminal jurisdiction with which it is invested shall be known as An Phríomh-Chúirt Choiriúil (the Central

Criminal Court) and is in this Act referred to as the Central Criminal Court.”

The wording of this subsection undoubtedly derives from Article 34.3.1 of the Constitution which is in the following terms:

“The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and

questions whether of law or fact, civil or criminal.”

This particular wording is identical with wording contained in Article 64 of the Constitution of Saorstát Éireann.

What is important now is to interpret correctly section 11(1) of the Courts (Supplemental Provisions) Act, 1961. This exercise involves determining the true

intention of the Oireachtas in enacting the section. Even without considering the further subsections in the section, it would seem most unlikely that on that

wording the Oireachtas was intending that the High Court dealing with criminal contempt motions was to be regarded as the Central Criminal Court. But it is

not necessary to consider whether a court would be forced to come to that view on an artificial basis having regard to the actual wording. This is because

the court in interpreting subsection (1) is clearly entitled to have regard to the other subsections within the section. They read as follows:

“(2) (a) The jurisdiction exercisable by the Central Criminal Court shall be exercisable by a judge or judges of the High Court (including

the President of the High Court) nominated from time to time by the President of the High Court.

(b) The jurisdiction of the Court shall be exercisable by each judge for the time being so nominated save that, where the President of

the High Court directs that two or more such judges shall sit together for the purpose of a particular case, the jurisdiction of the Court

for that purpose shall be exercised by those judges sitting together.

(3) Every person lawfully brought before the Central Criminal Court may be indicted before and tried and sentenced by that Court,

wherever it may be sitting, in like manner in all respects as if the crime with which such person is charged had been committed in the

county or county borough in which the said Court is sitting.

(4) References in any other enactment (whether passed before or after this Act) to the Central Criminal Court shall be construed as

references to the High Court exercising the criminal jurisdiction with which it is invested.”

These additional subsections, in my opinion, clearly indicate that what section 11 is dealing with is indictable crime tried by juries in the ordinary way.

There is nothing in the section which indicates that there was any intention to change the long established summary procedures (which were intended to

deal with urgent situations) in relation to criminal contempt.

On the wording of the section alone, I would reject the argument that Dunne J., sitting on this motion, was the Central Criminal Court.

Quite apart from interpreting the actual wording, I am of the view that there are other factors which support my interpretation. Courts do not interpret

statutes in a vacuum. Judges are entitled to take judicial notice of relevant context and well-known relevant historical facts. Different definitions at different

times have been given to the expression “Central Criminal Court” but the differences are not material. They were simply perceived better definitions of what

the court actually was. The Courts of Justice Act, 1924 defined “Central Criminal Court” in an unsatisfactory circular way as meaning “the judge of the High

Court, to whom is assigned the duty of acting as such judge for the time being.” Section 4 of the Courts of Justice Act, 1926 provided as follows:

“The Central Criminal Court shall have and may exercise every jurisdiction in criminal matters for the time being vested in the High

Court, and every person lawfully brought before the Central Criminal Court for trial in exercise of any such jurisdiction may be indicted

before and tried and sentenced by that court wherever it may be sitting in like manner in all respects as if the crime with which such

person is charged had been committed in the county or county borough in which the said Court is sitting.”

The references to the Central Criminal Court in the Courts of Justice Acts of 1924 and 1926 clearly indicate that the court carrying that name was envisaged

as the branch of the High Court trying indictable crime before a jury. Long after the present Constitution came into force, that legislative regime continued

and, of course, in many respects was carried over by the Courts (Supplemental Provisions) Act, 1961. I am satisfied that the change of definition of the

Central Criminal Court in that Act was motivated by a perception that the new wording would constitute an improvement in draftsmanship. All judges, all

courts and all practitioners are perfectly well aware that no material change took place on the ground after 1961. Contempt motions were never dealt with in

the Central Criminal Court and indeed there would have been administrative problems if they were. Until very recent years and until well after the Courts

Service was established, the Central Criminal Court was serviced by the Circuit Court Office and not by the Central Office of the High Court. This was in

turn, of course, a throwback to the origins of the Central Criminal Court. Prior to the establishment of the new courts in 1924, an assigned judge was sent

each term to Green Street courthouse under royal commissions of oyer et terminer and gaol delivery and were met at the courthouse in a solemn fashion

and attended to by the Clerk of the Crown and Peace for Dublin (predecessor of the Dublin County Registrar). To some extent an equivalent of this

continued right up to modern times and as I have already mentioned, servicing of the court by the Circuit Court Office only ceased recently. Before the

establishment of the current Special Criminal Court the normal venue of the Central Criminal Court was the Green Street courthouse and I recall that in as

late as the sixties each judge of the High Court was assigned in turn each term to that court. At all material times, the workload was indictable crime. I find

it impossible to believe that the Oireachtas in enacting section 11 of the Courts (Supplemental Provisions) Act, 1961 was merely by its particular choice of

wording intending to widen the scope of the Central Criminal Court.

In further support of the view which I have taken, I would refer to an aspect of the matter adverted to in the judgment of Fennelly J. which I have had the

benefit of reading. If the respondents’ argument that the High Court (Dunne J.) dealing with this motion for committal was the Central Criminal Court, it

follows that if the decision of Dunne J. had been to the opposite effect and she had granted the relief sought, the respondents would have no appeal to any

court. It is clear from the terms of section 11(1) of the Criminal Procedure Act, 1993 that there is no appeal to this court from a final (I am using that word

advisedly for a reason which I will explain) decision of the Central Criminal Court. But neither would there be an appeal to the Court of Criminal Appeal

because under section 31 of the Courts of Justice Act, 1924 such an appeal only lies at the suit of “a person convicted on indictment before the Central

Criminal Court …”. Realistically, it is unlikely that in enacting section 11 of the Courts (Supplemental Provisions) Act, 1961 either the Oireachtas or the

draftsman adverted at all to possible implications in the wording for the procedure in summary criminal contempt cases. If it is reasonable to make that

assumption which I think it is, that is yet another factor which can be legitimately considered in interpreting the section.

I am further reinforced in the view which I have taken by the dicta of Henchy J. in O’Shea cited above at 421 which are cited in the judgment of Hardiman J.

and which read as follows:

“…the Central Criminal Court (which is but a description of the High Court when exercising its jurisdiction to try indictable offences).”

In this particular context Hardiman J. expresses the view that no one looking at the Act of 1993 in its context can doubt that its purpose was specifically to

overrule the effect of the decision of this court in O’Shea. For my own part, I would take a slightly different view. I think it more likely that the main purpose

of the 1993 provision was to remove the alternative right of appeal to the Court of Criminal Appeal or the Supreme Court. The possibility of a direct right of

appeal from the Central Criminal Court to the Supreme Court arose as a consequence of the earlier decision of The People v. Conmey [1975] I.R. 341. I

think that at the very least there must be doubt as to the purpose of enacting section 11 of the 1993 Act and indeed although it is not really relevant here, I

think that there must be doubt as to its scope. The view taken for instance by Carney J. in The People (DPP) v. WM [1995] 1 I.R. 226 and referred to in the

written submissions of the respondents that no appeal can lie from any ruling of the Central Criminal Court may not necessarily be correct. This court

expressly left that question open in Sweeney v. The Rape Crisis Centre [2002] 1 ILRM 532. It is certainly arguable that the section precludes appeals to the

Supreme Court from the final decisions of cases before the Central Criminal Court only and not necessarily from orders made in interlocutory applications

from which there is no statutory appeal to the Court of Criminal Appeal available. In this case, of course, the decision of Dunne J. was undoubtedly a final

decision. I merely refer to the issue because it was considered relevant by the respondents in their written submissions, the argument being that in the light

of the judgment of Carney J. the scope of section 11(1) of the 1993 Act is “very broad”.

It may be argued that the interpretation which I give to section 11(1) of the 1961 Act is contrary to the literal interpretation and that however surprising the

results might be, I am obliged to interpret the section according to the words used. Essentially, this argument would be based on the traditional approach

to the interpretation of statutes which was reinforced in modern times by this court in Howard v. The Commissioners of Public Works [1994] 1 I.R. 101 and

in particular the judgment of Blayney J. delivered in that case. A well-known passage in Maxwell on the Interpretation of Statutes (12th ed. 1976) was cited

by Blayney J. and reads as follows:

“Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be

enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be

collected from any notions which may be entertained by the court as to what is just and expedient: words are not to be construed

contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be

embraced or excluded. The duty of the court is to expound the law as it stands, and to ‘leave the remedy (if one be resolved upon) to

others’.”

In fact in that case, Blayney J. went on to question whether his interpretation did in fact create an absurd result. I am satisfied that even the traditional

jurisprudence on interpretation of statutes does not inhibit this court from holding what everybody in reality would have believed namely, that the Central

Criminal Court did not include the sitting of an ordinary High Court judge in the High Court in the ordinary way hearing a committal motion albeit a criminal

contempt.

Denham J. who was a member of the majority of this court in Howard has in more than one case referred to the importance of adopting a purposive

approach to interpretation so that the true intention of the Oireachtas can emerge. In DPP (Ivers) v. Murphy [1999] 1 I.R. 98 at 111, she approved the

following dicta from Lord Griffiths in the House of Lords case Pepper v. Hart [1993] A.C. 593.

“The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the

literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of

legislation …”

Immediately after that citation, Denham J. comments as follows:

“I would concur with this approach. However, no method of interpretation may be such as to encroach on the constitutional role of the

Oireachtas as the legislative organ of the State. The rules are applied to interpret the acts passed by the legislature and in so doing

afford the respect appropriate from the judicial organ of government to the legislature.

The rules of construction are part of the tools of the courts. The literal rule should not be applied if it obtains an absurd result which is

pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be read in the section

without rewriting the section then that is the appropriate interpretation for the court to take.”

To interpret section 11(1) of the 1961 Act in the way I have done and in the way Fennelly J. seems to have done in his judgment does not appear to me to

constitute “rewriting the section” but rather interpreting it purposively and in context as otherwise the provision would have most surprising and clearly

unintended results.

A recent incidence of the purposive approach to interpretation by this court is contained in the judgments in Bemis v. The Minister for Arts, Heritage,

Gaeltacht and the Islands (unreported decision of this court delivered 27th March 2007). The lead judgment was delivered by Macken J. who first referred to

the judgment of Blayney J. in Howard v. The Commissioners of Public Works cited above and in particular to the following quote from Craies on Statute Law

(1971) (7th ed.) at p. 65 quoted by Blayney J.

“The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation the primary

duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any

other phrases in the Act which may throw light on the sense in which the makers of the Act use the words in dispute.”

Macken J. went on however to refer to the purposive construction test enunciated by Denham J. in DPP (Ivers) v. Murphy also cited above pointing out

however that the intention “must nevertheless be obvious from the words actually chosen”. Once section 11 is read as a whole and in context as I have

suggested, it is reasonable and appropriate to interpret it as not including summary applications for attachment or committal to the High Court.

At this stage, I would like to refer briefly to the English case law although I do not think that any material assistance can be gained from it. Indeed it is not

altogether clear whether over the years the English and Irish law on contempt has diverted. There appears to be authority in England, for instance, that

sequestration is not an appropriate remedy for criminal contempt, yet it is included in this motion and indeed has been included in previous Irish cases.

Interestingly, the Halsbury volume on Contempt i.e. 4th edition, volume 9 in a footnote to paragraph 4 says the following:

“Formerly the most important characteristic of (criminal contempt) was the absence of a right of appeal from an order of committal for

criminal contempt. A right of appeal is now conferred in cases of criminal and civil contempt by the administration of Justice Act,

1960, section 13.”

The whole thrust of the treatment of contempt of court in Halsbury is that there is no major distinction between criminal and civil contempt though there are

some differences. Once the right of appeal was applied to both in 1960 the remaining differences, as listed, are either minor or obscure. Paragraph 4 itself

states that criminal contempts are distinguished by the following characteristics:

1. Privilege is not allowed.

2. The sheriff may break open an outer door in executing the process and perhaps may execute it on Sunday.

3. The order of discharge from custody may be made conditional on the payment of costs.

4. The writ of sequestration is inapplicable to criminal contempts.

5. The prerogative of the Crown extends to the remission of a sentence for criminal contempt but the Crown never interferes in the case of a

contempt that is not criminal.

Of further interest is the comment of Salmon LJ (as he then was) in the case of Jennison v. Baker [1972] 1 All E.R. 997 at 1002 which reads as follows:

“Contempts have sometimes been classified as criminal and civil contempts. I think that, at any rate, today, this is an unhelpful and

almost meaningless classification.”

That comment is specifically cited in Halsbury.

I have mentioned these references a propos of the view expressed by Hardiman J. in his judgment that contempt proceedings are not proceedings which

are “sui generis”. I am in the somewhat strange position that I agree and disagree with that comment. I agree in the sense that criminal contempt even if

tried summarily is a criminal offence and that the defendant is entitled to whatever constitutional rights should apply to the hearing. Putting it that way,

leaves open the question of entitlement to a jury in any particular circumstances (an issue which as I have already mentioned does not arise here). I agree

also that the most important recent authority in support of this proposition is The State (DPP) v. Walsh [1981] I.R. 412 though I think that no particular

significance can be attached to the remark of O’Higgins C.J. that “such proceedings” can be correctly described in reality as “a charge of a criminal

offence”. That simply begs the kind of procedural questions involved here.

Where I disagree that contempt proceedings are not sui generis is in relation to the historical procedures which have applied from time immemorial and up

to the present in relation to contempt proceedings. In my opinion, that is a respect in which they are quite obviously sui generis. I think that if anything the

quotation from Palles C.B. in AG v. Kissane 32 LR Ir 220 referred to in AG v. O’Kelly [1928] I.R. 308 and fully set out in the judgment of Hardiman J. bears

out the separate aspects of the contempt jurisdiction even though in so far as it involves fining and imprisoning that jurisdiction as pointed out by the Chief

Baron is “essentially criminal”. As Hardiman J. points out, that would mean, for instance, that the criminal standard of proof must apply.

The fact that accusations (to use a non-legal term) of criminal contempt however serious have been tried summarily by judges over the centuries makes

them sui generis in a procedural sense. Indeed there is one aspect of their uniqueness which I have not up to now mentioned. Quite apart from cases of

contempt in the face of the court, criminal contempts are offences against the administration of justice itself and are, therefore, offences not exclusively

external to the court itself even if the party applying for the attachment or committal is himself offended.

For all these reasons and having regard to context and procedural history, I am quite satisfied that this court does not have to interpret section 11(1) of the

1961 Act in a strictly literal fashion with consequences clearly unintended which might be widely regarded as absurd. In my view, by no stretch of the

imagination was Dunne J. sitting in the High Court in the ordinary way to deal with this motion the Central Criminal Court and it would never have occurred

to anybody that she was. I believe that those factors are actually relevant and that I am not merely indulging in rhetorical flourish.

I would, therefore, hold that that court was not the Central Criminal Court. I believe that that is all which this court should hold at this stage. In my view, the

arguments as to whether this court lacks jurisdiction to overturn the acquittal, as it is described, will be different depending on the court’s finding on the

Central Criminal Court issue.