The Gazette 1983

GAZETTE

SEPTEMBER 1983

The Right to Jury Trial in Cases of Contempt Part 2 by Gerard McCormack, B.C.L.

outside it, and whether it be classified as civil or criminal contempt. The case involved disobedience to a Circuit Court order in a civil action but the learned judge's observations are certainly susceptible of application to the criminal contempt sphere. The terms of Article 34 of the Constitution stipulating that justice shall be adminis- tered in courts established by law and by judges appointed in accordance with the Constitution constituted a qualification upon the apparently imperative provisions of Article 38. His lordship defended himself by means of an example. If the contention that an alleged contemnor was entitled to trial by jury was correct then in the event of a court's order having been disobeyed or in the event of a court suffering contempt in its face, the A.G. or now the D.P.P. would have to be relied on to present an indict- ment and to try the person alleged to have been guilty of such contempt before a jury. That construction, the President said seemed to construe Article 38 as depriving the courts of the right to enforce their own orders - a denial of the fundamental tripartite division of powers which underlies the entire Constitution. The President envisaged that a situation could arise in which the court was obliged to restrain directly the commission of an act by the Executive or by an agent of the Executive so as to preserve the right of an individual. Furthermore by non-activity, the Director, a servant of the Executive, could paralyse the capacity of the court to enforce its will against him. This would be a vital infringement of the independence of the judiciary. Protestations to the contrary notwithstanding, the ultimate effect of this argument is to ride roughshod over the rights of citizens. In McMahon v A.G. 47 McLoughlin J. pertinently stated that it was no part of the function of the courts to forge from the iron of the constitution, shackles designed to prevent a happening which in the light of experience and reason can never happen. Further it was authoritatively asserted in Byrne v Ireland 48 that in the event of an award of damages being made against the State, there was no reason to believe in a State governed according to the rule of law that the necessary moneys to meet the decree would not be voted. Budd J. opined that the possibility of the State failing to honour its legal obligation was so remote that no real difficulty of the kind envisaged had been shown to exist. Thus Finlay P. is seen to have impaled himself on the horns of a dilemma that was purely of his own creation. However the reasoning in The State (Commins) v McRann was unhesitatingly accepted by the Supreme Court in The State (H) v O'Daly 4 9 and it was confirmed that the determination of an issue as to whether or not a person was guilty of a civil contempt of court did not require a trial by jury. (continued on p. 212) 209

McEnroe v Leonard While the U.S. authorities were not the subject of Irish judicial deliberation until the case of The People (D.P.P.) v Walsh and Connelly 41 in 1981, the early 1970's saw increased solicitude for the protection of pro- cedural guarantees. This concern found expression in In Re Haughey 42 where the constitutional propriety of section 3 (4) of the Committee of Public Accounts of Dail Eireann (Privilege and Procedure) Act 1970 was at issue. This provided that where a witness refused to answer a question lawfully put by the Dail committee he was guilty of a statutory offence punishable in like manner as if he had been guilty of contempt of the High Court. Thus a person convicted under the section was liable to fine and imprisonment at discretion i.e. without statutory limit. Because of the severity of the possible penalty the crime committed was outside the minor offence category and was not constitutionally triable summarily. In Re Haughey appears to have been misinterpreted by Parke J. in McEnroe v Leonard, 43 a case in which the defendant had disobeyed a court order in civil proceedings. It was taken as supportive of the proposition that a jury trial was a constitutional prerequisite in cases of contempt, whereas in In Re Haughey the court was concerned with a statutory offence, the punishment for which had been assimilated to contempt. This mistaken reliance was pointed out by Finlay P. in The State (Commins) v McRann* 4 who also indicated further flaws in Parke J's reasoning. The learned judge had referred to Comet Products (U.K.) Ltd v Hawkex Plastics Ltd 45 where it was held that a party charged with civil contempt could not be compelled to answer interogatories, or to give evidence against his will so as to incriminate himself but no direct question arose in that case as to the right of a person against whom civil contempt was alleged to trial by jury. TTie English court of Appeal merely applied the inveterate common law principle stated by Bowen L. J. in Redfern v Redfern 46 that a party cannot be compelled to discover that which if answered would tend to subject him to any punishment, penalty or forfiture. In light of the foregoing facts Finlay P. in McRann refused to follow McEnroe v Leonard and also because relevent earlier authorities had not received the consideration of Parke J. The State (Commins) v McRann. In this case Finlay P. after reviewing the earlier authorities, opined that it would be wrong to construe Article 38 of the Constitution of 1937 as depriving the courts of a long-established jurisdiction to punish in a summary manner contempt of court whether the contempt was committed in the face of the court or