The Gazette 1983

GAZETTE

SEPTEMBER 1983

is no substantial difference between serious contempts and other serious crimes. Indeed in con- tempt cases an even more compelling argument can be made for providing a right to jury trial as a protection against the arbitrary exercise of official power. Contemptuous conduct, though a public wrong, often strikes at the most vulnerable and human qualities of a judge's temperament. Even when the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority or an inter- ference with the judicial process or with the duties of officers of the court". 39 This represents a reiteration of the points made by Black J. (dissenting) in U.S v Green where the learned judge stated that when the responsibilities of law maker, prosecutor, judge, jury and disciplinarian are thrust upon a judge he is obviously incapable of holding the scales of justice perfectly fair and reflecting impartially on the guilt or innocence of the accused. No official regardless of his position or the purity and nobleness of his character should be granted such autocratic omnipotence. Judges are not essentially different from other public functionaries. Like all the rest of mankind they may be affected by pride and passion, by pettiness and bruised feelings, by improper understanding or by excessive zeal. Frank recognition of these common human characteristics, undoubtedly led to the determin- ation of those who framed our Constitution to fragment the power to define and enforce the criminal law, among different departments and institutions of government in the hope that each would tend to operate as a shield against their excesses thereby securing the people's liberty. The force of these considerations cannot be underestimated. The preponderance of judicial opinion in the United States is now to the effect that summary proceedings in cases of contempt are permissible only where they are sanctioned by the historical exception to entitlement to jury trial covering petty offences and where no maximum penalty is statutorily authorised the penalty actually imposed is the best indication of the seriousess of the offence. This state of affairs is not above object- ion in that it requires the court to exercise what is in cffcct. a prosecutorial function of designating the alleged contempt as "petty" or "serious" before proceeding to deal with it. 40 Nevertheless notwithstand- ing this theoretical imperfection the American approach has the obvious advantage of ensuring compliance with the spirit and essence of the constitutional command re- garding jury trial. Footnotes. 1 See /)c Hnrea v A. G |I976| I.R. 38. The Slate IByrneI v Frawlev \W7H] I.R. 326 2 ||96X| .VII U.S. 145 :il pp. 155-156 V 119331 I.R. 3115. 341. 4 Supreme Court, unreported 31 July IWO. nolcd by T. A. M. Cooney 15 Irish Jurist 28V (IWO). < 11«1731 I.R. 223. (, See He Earie 11*13X1 I .R. 4X5 ef. Henehv J. in The Slate I DP P ) v Walsh ami Connelly Supreme Court, unreported.6 February IWI at page 3 of his unreported judgment where he stales Ihill the case was conecrncd with a question of w hat is pchaps now only a civil contempt i.e. failure to ohcy an order of habeas corpus in respect of a child whose custody was in issue. I'an 2 itl this article will he published in the October Gazette.

7. [1973] I.R. 223. 227 See also the observations of Lord Denning in Danchevsky v Danchevsky [1974] 3 All E.R. 934 937 which were cited with approval in The Slate (D.P.P.) v Walsh and Connelly "It seems to me that when the object of the committal is punishment for a past offence, then if he i.e. the contemnor. is to be imprisoned at all. the appropriate penalty is a fixed term. When it is a matter of getting a person to do something in the future - and there is a reasonable prospect of him doing it - then it may be quite appropriate to have an indefinite order against him until he does it". X. See J. M. Kelly The Irish Constitution (1980) p.207 footnote 50. 9. 11962J I.R. I. Id. "The Definition of a Crime" (1955) C.L.P. 107 at 130. 11. Sec Osborough "Melling v O'Mathghamahna" (1964) 30 Irish Jurist 32 at 34 Footnote N. 12. (1931) A. C. 310 at 324. 13. 221 U.S. 418.441 (1911) 14. A. G. v Times Newspapers Ltd. [1974) A. C. 173. 308. 15. See Comet Products (U.K.I Lid. v Hawkex Plastics Lid. [19711 2Q.B.67. 16. [19281 I.R. 308. 17. (1893)32 L.R.Ir. 220.271. 18. [19281 I.R. 308.313. 19. Ibid at 314 citing Blackburn L. J. in Skipworth's case L.R. 9Q.B. 230. 232. 20. On which see J. P. Casey The Office of Attorney General in Ireland (1980) pp. 125 - 128. 21. [I928U.R. 308. 325. 22. [19381 I.R. 485. 23. Ibid at 493. 24. 356 U.S. 165(1958). 25. See Sir John Fox The History of Contempt of Court (1927). 26. R. v Almon (1765) Wilm. 234.97 E.R. 94 See also Sir John Fox "The King v Almon I"( 1908)24 L O R- 184. 31. Sec also Henchy J. in The State (D. P.P.)\ Walsh and Connelly at page 17of his unreported judgment "Having regard to the fact that a number of important constitutional rights are implied, rather than expressly articulated in the Constitution, one must read that rule of constitutional interpretation as saying that the ordinary or literal meaning of an inclusion or an exclusion effected hv the Constitution may be overborne not only by an express provision of the Constitution which is inconsistent with the inclusion or exclusion in question hut also hy a conflicting provision which has to be imported into the Constitution hy necessary implication". 32. 119471 I.R. 213. 33. 376 U.S. 681 (1964). 34. 391 U.S. 194 (1968) Sec Note "Right to Jury Trial in Criminal Contempt Proceedings" (1968) 82 Harv. L.R. 153. 35. 391 U.S. 194. 197. 36. Ibid p. IW. 40. In determining whether or not an offence is a minor offence in this jurisdiction so as to constitutionally triable summarily the most important criterion for the consideration of the Court is the amount of the penalty. In In Re Haughey [ 197111. R. 217 the Supreme Court stressed the test relates to the severity of the penalty authorised by law, not to that of the penalty actually imposed. 27 4 B & Aid. 219. 233 106 E.R. 918. 923 per Halroyd J. 28. 13 E.R. 15 discussed hv Fox (1908) 24 L O R. 184. 185 - 8. 29. 15 A.C. 506. 30. [19671 I.R. 147. 37. 384 U.S. 373(1966). 38. 391 U.S. 194(1968). 39. Ibid at pp. 201 - 202.

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