The Gazette 1983

JULY/AUGUST1983

GAZETTE

but some examples of this class of contempt. Civil con- tempt usually arises where there is disobedience to an order of the court by a party to the proceedings and in which the court has generally no interest to interfere unless moved by the party for whose benefit the order was made. Criminal contempt is a common-law misdemeanour and as such, is punishable by both imprisonment and fine at discretion, that is to say, without statutory limit, its object is punitive....Civil contempt, on the other hand, is not punitive in its object, but coercive in its purpose of compelling the party committed to comply with the order of the court, and the period of committal would be until such time as the order is complied with or until it is waived by the party for whose benefit the order was made". 7 In this case during the hearing of a motion following civil proceedings the defendant refused to answer a relevant question which the judge had asked. The latter thereupon sentenced her to be imprisoned "until she purge her said contempt". The Supreme Court, on an appeal brought by the defendant accepted the contention that her conduct in refusing to answer the learned judge's inquiry amounted to criminal contempt in facie curiae which could be disposed of summarily. The court reserved its opinion as to those categories of criminal contempt which would not be triable summarily. However O'Dalaigh C.J. with whom Walsh J. agreed, opined that the President, at first instance, was in error in imposing a sentence of imprisonment of indefinite duration instead of a determinate sentence. The case should be remitted to the High Court for the imposition of an appropriate penalty. McLoughlin J., in what has been described as a persuasively argued judg- ment , 8 dissented. He was of the view that in such a case as this the purpose of a sentence is not primarily punitive but coercive. Refusal by a party sworn to answer a question was not an act complete in itself, but was an offence which continued so long as the refusal continued and could not be appropriately measured while the offence continued; if dealt with by a fixed sentence, the sentence might be oppressive on the offender, whereas a sentence which ended when the offence ceased and the contempt was purged could not be oppressive. It was not the declaration of refusal to answer the question but the failure to comply with the requirement which was the gist of the offence. Keegan v De Burca is cogent testimony to the fact that the dividing line between the two forms of contempt is not clearly drawn. Grey areas exist. Above all, while the distinction is a time-honoured one, the justification for its existence may be questioned especially in a jurisdiction with a written constitution incorporating a Bill of Rights. A modern Constitution for a New State should not be construed in the light of judicial survivals of an earlier age. InMelling v O'Mathghamha 9 conduct meriting condemnation was classified as civil or criminal largely according to the consequences with which it was visited. Both forms of contempt may involve the loss of an individual's liberty; this being so, the argument can be made for the assimilation of the two branches of con- tempt. According to Professor Glanville Williams, 10 a crime is an act capable of being followed by pro- ceedings having a criminal outcome, and a proceeding or its outcome is criminal if it has certain characteristics which mark it as criminal. In a marginal case the court

impossible to define in a comprehensive way or rather to delimit the circumstances under which a contempt of court by the obstruction of justice may be committed, and no judge or court has ever presumed to lay down any such limitation". This statement ill-resides with the idea expressed in King v D. P. P. 4 that the criminal law must be certain and specific so that an individual is capable of ascertaining what is required of him so as to adjust his conduct to the dictates of the law. It also leaves scope for arbitrary and discriminatory enforcement and the ill-defined and uncertain potentialities associated with the exercise of the contempt power may operate to deter persons from engaging in otherwise unobjectionable activities. Civil and Criminal Contempt Considerations of imprecision aside, the existence of a summary power to commit persons to prison for con- tempt of court has often been asserted by our judges. A basic distinction must be drawn at the outset between civil and criminal contempt. This differentiation has the authority of the Supreme Court. O'Dalaigh C.J. put the matter thus in Keegan v De Burea: 5 "The distinction between civil and criminal contempt is not new law. Criminal contempt consists of behaviour calculated to prejudice the due course of justice, such as contempt in facie curiae , words written or spoken or acts calculated to prejudice the due course of justice or disobedience to a writ othabeas corpus by the person to whom it is directed 6 - to give

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