The Gazette 1983

S E PTE M BER 1983

GAZETTE

perceptive comment which is borne out by a study of the decided cases had said: "the principle of interpretation which admits as a consideration...the state of law and public opinion at the time of the enactment of the con- stitution is peculiarly liable to subjective application". 67 The importance of procedural safeguards in securing a citizen's inestimable liberty also appears to have been ignored in the contempt cóntext. One might echo the view of Frankfurter J. in McNabb v U.S 68 that the history of liberty has largely been the history of obser- vance of procedural safeguards. Experience has counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The lawful instruments of the criminal law cannot be entrusted to a single functionary. Also it might be said in the words of Lord Devlin that:- 69 "Trial by jury is more than an instrument of justice and more than one wheel of the constitution, it is the lamp that shows that freedom lives". The author would like to thank Mr. T. A. Cooney for his very helpful encourage- ment in the writing of this article. • (Footnotes) 41. Supreme Court, unreported 6 February 1981. 42. [1971] l.R. 217 43 High Court, unreported 9 December 1975. 44. [19771 l.R. 78. 45. [1971] 20.B. 67. 50. At page 30of his unreported judgment Henchy J. went on to state that to the extent that such mode of trial may require the co-operation of the D.P.P. if such co-operation were not forthcoming, the inherent powers of the courts would comprehend the capacity to compel such co-operation. However earlier at pages 21 and 22 the learned judge appears to imply that civil con- tempt prtKeedings do not constitute the trial of a criminal offence and thus an alleged contemnor in such a case would not he entitled to trial by jury. He said: "While important procedural differences have always existed between trial by jury for other criminal offences and the summary trial of contempt at court, such differences do not detract from the fact that a criminal contempt is a criminal offence and that it is not he equated with a civil contempt". 51. See page 3 of the judgment of O'Higgins C. J. 54. [1933] l.R. 74. 97. 55. [ 195(1] l.R. 67. 8(1. 56. Statement of American lawyer quoted by Black J. in U.S. v Green 356 U.S. 165. 214. 57 This exception is well-established. See District of Columbia v Clawans 300 U.S. 617 (1937). 58. (1974) 418 U.S. 506. 522. 59. At page 23 of his unreported judgment. 60. Ibid at p. 28. 61 The responsibility of the appellants for the dissemination of the offensive material was confirmed hy the Supreme Court (Henchy. Griffin and Kenny .1. J.) in The State {D.P.P.) v Walsh and Connelly (No. 2) Supreme Court, unreported 18 March 1981. The view was expressed that no issue of fact as to the appellants" guilt remained to he decided. 62. 119361 A C. 322 at p. 335. 63. [I936| A C. 322. 64. [1976] l.R. 388. It should he noted that in this case the defendants did not get anv trial never mind a trial hy jury. The D.P.P. applied ex parte to the High Court for conditional orders of attachment and sequestration. When this application was refused he appealed to the Supreme Court without notice to the prospective defendants. The Supreme Court held the orders should issue without hearing the other side. The permissibility of this practice may have to be reconsidered in the light of Re Zwann (1981) I.I R.M 333 65. [1968] 2 O.B. 150. 66 M. Russell "Contempt of Court" (1968) 3 Irish Jurist I at page 3. 46. (1891) p. 139. 47. [19721 l.R. 114. 48. 119721 l.R. 241. 49. [19771 l.R. 90. 52. At page 11 of his unreported judgment. 53. At page 19 of his unreported judgment.

right to trial by jury. This was so, Henchy J. said, because the question whether the rules of evidence had been abused was always a question of law to be determ- ined by the presiding judge or judges before whom such a question validly arose. This latter line of reasoning is open to attack. Criminal contempt of court by scandalising the courts is not committed merely by making erroneous statements While it is not possible to chart with accuracy the limits of invective, it has often been emphasised that the bounds of propriety are passed only when what is said amounts to scurrilous, outrageous abuse. "The path of criticism is a public way; the wrong- headed are permitted to err therein; provided that members of the public are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though out- spoken, comments of ordinary men". 62 These observations of Lord Atkin in Ambard v A.G. for Trinidad and Tobago 63 were cited with approval by the Supreme Court in In Re Hibernia. 64 They are illustrative of the proposition that factual accuracy is not required for comment to escape condemnaton as criminal contempt by scandalising the courts. Reg. v Metropolitan Police Commissioner, Ex Parte Blackburn (No. 2) 65 may also be referred to. There "Punch's" criticism of the Court of Appeal was erroneous as to fact and rumbustious in its tone, while its fairness and good taste were open to doubt. But it was not contempt of court. In The State (D.P.P.) v Walsh and Connelly Henchy J. remarked that it would be utterly inappropr- iate to leave laymen with the task of deciding if the abuse at issue amounted to criminal contempt because of the varying standards and values that juries would be apt to apply. However judicial reaction is also not easily pre- dictable. It may be said:- 66 "Since the judiciary does not have a common threshold of tolerance it is to be expected that judges' reactions to criticism will not be uniform and the resilience of the judicial epidermis will vary from court to court. Other areas of our law may be codified by statute or rationalised by a zealous Supreme Court or House of Lords, but in this field the subjective judgment seems destined to remain unchallenged, it is unlikely that we shall ever find a judge on the Clapham Omnibus". Conclusion. In the final analysis it is submitted that the court in The State (D.P.P.) v Walsh and Connelly were unduly sw ayed by the allegedly awful consequences which they foresaw if thev decided otherwise than they did. Due respect for the courts and their mandates would be much more likely if they faithfully observed the spirit and letter of the constitutional requirement of fundamental fairness of procedure. Also in practice the Irish Courts have not always lived up to the theoretical entitlement of persons to indulge in robust but fair criticism. The contempt cases involve the Constitution being read in its historical contest. Invocation of this canon of construction is, it is submitted, indicative of a result-oriented approach towards questions of constitutional adjudication. Professor Kelly, in a 216

67 Kelly op. eit. p. 241. 68. 318 U.S. 332. 347. 69 t rial h\ Jury (1966 cd. I p. 164.