The Gazette 1983

JULY/AUGUST 1983

GAZETTE

tempt. Nonetheless it was held by a Divisional High Court (Sullivan P., Hanna J. Meredith J. dissenting) that this right only applied to trials of criminal offences by ordinary criminal process and did not concern the jurisdiction of the High Court to deal summarily with contempt, a jurisdiction that was inherent in it as a Court of Record. Sullivan P. quoting Palles C. B. in A. G. v Kissane 17 said:- "The trial by jury is one part ot the system; the punishing of contempts of court by attachment is another; we must not confound the modes of proceed- ing and try contempts by juries and murders by attach- ment". 18 The power of the courts concerning contempts was described as being coeval with their first foundation and institution. The rationale of summary jurisdiction was that 19 "if we are to wait for [punishment for contempt] to be done by ordinary criminal process and an ordinary trial, there might be great mischief done, because that process is slow, and before that process could come into train, the mischief would be done by the due administration of justice being hampered and thwarted". This statement is somewhat ironical in light of the fact that in the O'Kelly case the Attorney General did not start proceedings until 13 days after the publication. This lack of promptitude moved Meredith J. to dissent from the holding of his brethren. He suggested that the procedure should have been by way of information 20 "if the case was one which could have afforded the delay occasioned by these proceedings and of having this court constituted it could have afforded the delay of proceeding by way of criminal information, which would have been no greater". 21 From the accused's point of view, the advantage of the procedure by way of information is that it would mean trial by jury. The principles enunciated in A. G. v O'Kelly in relation to the constitution of the Free State Constitut- ion insofar as it affected cases of contempt were considered and approved by the then Supreme court in Re Earle 22 Fitzgibbon J. expressed himself as follows:- 23 "Whatever the source of the exercise of judicial power in Courts of Record to fine or imprison by summary process contempts in court or out of court may be, whether immemorial usage as asserted byWilmot J. in Almon's case and those great judges and commentat- ors who have followed him, or a gradual process of development, the existence of such a power has, as regards Superior Courts of Record at any rate Receiv- ed the sanction express or implied, of so many authorities including the legislature itself, that it must now be recognised as part of the law of the land". In this connection it is also apt to appreciate the observations of Frankfurter J. in U.S. v Green 24 where the learned judge pertinently remarked that law is a social organism, and evolution operates in the sociological domain no less than in the biological. The vitality and therefore validity of law is not arrested by the circumstances of it origin. What Magna Carta has become is very different indeed from the immediate objects of the barons of Runnymede. Be that as it may, it is interesting to note that the summary procedure, as applied to the general range of contempts, appears to 179

may have to balance one feature which may suggest that the proceeding is criminal against another feature, which may suggest the contrary. Although this pragmatic case-by-case approach has been trenchantly criticised as constituting a confession of intellectual bankruptcy 11 other eminent jurists may stand convicted on the same charge. Lord Atkin in Proprietory Articles Trade Association v A.G. for Canada 12 said that it was important to ask the question, "Is the act prohibited with penal consequences?". It is said that where the complaint is of non- compliance with a court order or an undertaking, the purpose and intended outcome of the proceedings will typically be remedial or coercive. In the leading American case Gompers v Bucks Stove and Range Co. 13 the matter is stated thus:- "It is not the fact of punishment but rather its character and purpose that often serves to distinguish between the two classes of case. If it is for civil contempt the punishment is remedial and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive to vindicate the authority of the court". It is submitted that the sentiments contained in this statement are misleading in that they tend to obscure the punitive element which may lie behind civil contempt proceedings. Civil contempt cases are not concerned simply with matters of private right. Civil contempt plays an important part in our legal system in aiding the enforcement of court orders. The value of a right to a litigant is no greater than the available remedy. Lord Diplock has recently recognised 14 that there is an element of public policy in punishing civil contempt since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity. This aspect of contempt has come to the forefront in recent times with the reluctance on the part of some trade unionists to comply with the terms of in- junctive relief granted against them, as in the Ranks dispute. It has been demonstrated that there are public interest considerations in the punishment of civil contempt. Also the consequences committal entails for an individual are heavy and burdensome. After taking cognisance of these factors, one can seriously question the exclusion of a civil contemnor from the pale of protection afforded the criminal defendant. In partial recognition of this, proceedings for civil contempt have been held to have acquired safeguards usually associated with a criminal trial. 15 The alleged contemnor cannot be compelled to answer interrogatories or to give evidence against himself and the presiding judge has a discretion to dis- allow cross-examination on an affidavit where this would operate unfairly. There does not seem any reason in justice, equity or fairness for not providing the alleged contemnor with the full panoply of protection made available to his criminal counterpart. A .G. v O'Kelly In A. G. v O'Kelly 16 the proper interpretation of Article 72 of the Free State Constitution was at issue. This provided for trial by jury and the exceptions to this principle envisaged in it did not encompass cases of con-