THE SUPREME COURT
No. 179/95
Hamilton C.J.
Denham J
Barrington J.
Keane J.
Lynch J.

BETWEEN
EAMONN KELLY
APPLICANT/RESPONDENT
AND

PAUL O’NEILL AND CONOR BRADY
RESPONDENTS/APPELLANTS

[Judgments by Denham J. and Keane J.; Hamilton C.J. and Lynch J. agreed with Keane J.; Barrington J. agreed with Denham J. and Keane J.]

Judgment of The Hon. Mrs. Justice Denham J. delivered the 2nd of December, 1999.

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This is a consultative case stated from the High Court for the opinion of the Supreme Court on certain questions arising on the appeal of the Respondents/Appellants from the judgment and order of the Circuit Court on 24th May, 1993.

Facts

The applicant/respondent (hereinafter referred to as the applicant) stood trial in the Circuit Court on a series of offences. He was convicted on Counts 4 and 5 of the indictment, which offences involved possession of cocaine and possession of cocaine for supply to others. The jury returned a guilty verdict on 15th May, 1993 and sentencing was deferred by the trial judge until 27th May, 1993 to enable evidence to be given. On 17th May, 1993 the Irish Times caused to be published an article written by Paul O’Neill, the first named respondent/appellant. The article contained material not admissible in evidence before the court and negative to the applicant; the article is set out in the schedule to this judgment. At the time of the said publication Conor Brady (the second named respondent/appellant) was editor of that newspaper. On 21st May, 1993 an application was made to the Circuit Court for liberty to serve a short notice of motion seeking the attachment of the respondents. A hearing took place before the Circuit Court Judge on 24th May, 1993 at which evidence on affidavit was given on behalf of the respondents.

Conor Brady deposed that the respondents had not wanted or intended to be contemptuous of the court. As the matter had passed out of the hands of the jury they believed themselves free to comment on matters of public importance i.e. the jury’s decision, the history of the applicant’s previous court appearances and the actions which had involved him in previous court appearances. It did not occur to them that the article could or would

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influence the judge who was to pass sentence. He deposed that it was the policy of the Irish Times over a number of years to carry articles concerning the result of serious criminal cases, including information on persons who had pleaded guilty or been found guilty by a jury, the article the subject of these proceedings was one such article. During the trial the Irish Times had carried reports of the hearing of the case and had been careful to ensure that any comment made could not be said to have influenced or be capable of influencing the jury. He deposed that it was not their intention for the article to interfere with the determination of the judge of an appropriate sentence. He stated that if the court was of the view that the actions were a contempt he apologised unreservedly and said it was not an intentional contempt of court.

The consultative case stated from the High Court states:

“7. Following argument by the parties to these proceedings the Circuit Judge made a finding that as a matter of fact and of law he was incorruptible but went on to hold that the article did constitute a contempt of the Circuit Court and imposed a fine on the [Respondents] in the sum of £5,000 and awarded the costs of the Application to the Applicant.”.

On the respondent’s appeal to the High Court, in the course of the legal submissions, the learned High Court judge expressed the view that having regard to the legal questions and issues which arose he would be prepared to state a case for the opinion of the Supreme Court. Accordingly, the following questions were stated:

“(a)	Can it be a contempt of Court to publish an article in the terms of that complained of after a criminal trial has passed from the seisin of the Jury and where the remainder of the hearing will take place before a Judge sitting alone?

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(b)	Given the constitutional right to freedom of expression of the press - could the publication of the article complained of ever constitute a contempt of Court when published after conviction and before sentence?”

Submissions on behalf of the Applicant

Mr. Rex Mackey, S.C., counsel on behalf of the applicant, submitted that the newspaper article was contemptuous having regard to: (a) the proximity to the pronouncement of sentence; (b) the intemperate language of the article; (c) the publication of what were submitted to be untrue and unproven allegations against the applicant before sentence; (d) the danger in public appeasement of the process of justice in creating disrespect for the law, particularly having regard to the very heavy sentence imposed; (e) the effect of such article in practice (subsequent to conviction but prior to sentence) to inhibit potential character witnesses for the defence. Furthermore, it is submitted that the constitutional right to freedom of expression is not absolute and is subject to the right of the courts to administer justice. He also submitted that any delay imposed on the newspapers would be of short duration, in this case ten days and in general terms not more than four to six weeks. In determining the proper balance between the competing interests it is fair and reasonable that the newspaper should not publish material until the issue is finally decided before the court of trial. He referred to authorities, in particular A.G. v. Times Newspaper Limited, [1974] A.C. 273, Lord Reid at p.300.

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Submissions on behalf of the Respondents

Mr. Nesbitt, S.C., counsel for the respondents, submitted that at the time of publication the trial had passed out of the seisin of the jury and what remained, sentencing, was to be dealt with by the judge alone. As the judge had indicated he was incorruptible in fact and in law and was and could not be affected by the article, the article could not be a contempt of court. Insofar as the article contained matter not admissible in evidence before the court the judge was confined to considering only those matters proved properly before him and not any of the material in the article. The article could not on this ground be a contempt of court as being a breach of the sub judice rule. It was submitted that having regard to the decision of the Supreme Court in Cullen v. Toibín and Magill Publications (Holdings) Ltd. [1984] ILRM 577, the application must fail in limine because the trial judge could not be affected by any publication but must, in accordance with the oath of office, confine himself only to evidence properly adduced before him. It was submitted that if the applicant’s contention was accepted it would by analogy no longer be possible to publish information about a convicted person between sentence and the hearing of an appeal. This could lead to the lengthy postponement of the publication of information. Counsel submitted that the first question raised the issue as to the balance between a fair trial and the organs of public opinion; that the article did not interfere with the administration of justice, that it did not deny a fair trial. It was submitted that the article constituted fair comment as a matter of public interest and had to be considered in the context of the right of freedom of expression in Article 40.6 of the Constitution. It was submitted that the correct answer to the first question is in the negative and that therefore the second question does not arise. If it does arise it should also be answered in the negative.

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The Questions

The first question queries:

“Can it be a contempt of Court to publish an article in the terms of that complained of after a criminal trial has passed from the seisin of the Jury and where the remainder of the hearing will take place before a Judge sitting alone”.

Contempt of court is an offence created by common law to protect the administration of justice. Thus, contempt of court may exist in relation to the publication of an article about a case where a conviction has been recorded but sentence has not yet been handed down; at that time the process of the administration of justice is continuing. If the first question did not contain the words “in the terms of that complained of’ it would be an academic question to which the answer is clear and affirmative.

A decision on the issues relating to an alleged contempt of court should not be taken in isolation. A decision on an alleged contempt of court must balance a variety of rights. The first question could not be answered without reference to the constitutional right referred to in the second question. Any answer to the first question would be inconclusive if made without balancing the right to freedom of expression raised in the second question. Ultimately, the issue requires a balance between the due administration of justice and freedom of expression. Consequently, I am satisfied that the two questions must be amalgamated and considered as one.

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Thus the question would be:

“Can it be a contempt of Court to publish an article in the terms of that complained of after a criminal trial has passed from the seisin of the Jury, where the remainder of the hearing will take place before a Judge sitting alone, given the constitutional right to freedom of expression of the press - could the publication of the article complained of ever constitute a contempt of Court when published after conviction and before sentence?”

The issue of character witnesses and any vulnerability they might have in the time between conviction and sentence was not argued on this appeal. It was not a matter canvassed for decision on the facts of this case.

The Trial Judge’s Decision

The trial judge held that he was not affected by the article. Counsel for the respondents submitted that as the judge held he was not influenced by the article there was no contempt of court. This approach is consistent with the decision of the Supreme Court in Cullen v. Toibín [1984] ILRM 577.

Irish Law

In Cullen v. Toibín [1984] ILRM 577 the plaintiff had been convicted of murder and malicious damage by the Central Criminal Court. He had appealed to the Court of Criminal Appeal on grounds of insufficiency of uncorroborated evidence. The only evidence against him was that of Elizabeth Madden, an alleged accomplice. While the appeal was pending the defendants entered into an exclusive contract to publish Elizabeth Madden’s

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account of her relationship with the plaintiff, including events which were the subject of his trial. In the High Court, Barrington J. granted an injunction holding that while the appeal would be heard by professional judges trained to exclude irrelevant material from their minds, it would be unwise to assume they would not be affected by publication of the article. He applied dicta from R. v. Davies. ex. p. Delbert-Evans [1945] KB 435. On appeal the decision was reversed by the Supreme Court which held that courts should only interfere with the freedom of the press and of communication guaranteed in Article 40.6 of the Constitution where it was necessary for the administration of justice; since publication of the article could not possibly prejudice the objective determination by the Court of Criminal Appeal of issues of law there was no basis for the granting of the injunction in the case.

O’Higgins C.J. stated, at p. 581:

“The basis for the application for the injunction which Mr Cullen has been granted is that the publication of the article would be prejudicial to the conduct of the appeal in that in one way or another the judges hearing the appeal would be biased in regard to the consideration of that appeal. I can see no basis for this suggestion. The Court of Criminal Appeal will be asked to consider pure questions of law relative to the appeal. It cannot be suggested that in considering such questions, publication of this or any number of articles in any number of periodicals would have the slightest effect on the objective consideration of legal arguments. It seems to me that such an argument is unsustainable.

That is not to say that one approves of the publication of this article. I think that better taste might indicate that articles of this kind should not be published during the currency of legal proceedings involving a citizen. There is, however, the matter of the freedom of the press and of communication which is guaranteed by the Constitution and which cannot be lightly curtailed. Such can only be curtailed or restricted by the courts in the manner sought in these proceedings where such action is necessary for the administration of justice.

While I sympathise with the view that anybody reading the article might be affected by the article, that is not the issue. There is not any reason

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for suggesting prejudice or any form of contempt in relation to the hearing before the Court of Criminal Appeal.

For these reasons I think the appeal ought to be allowed and the order of the High Court discharged and set aside.”

That case may be distinguished in that the article in question in that case was to be published after the trial in the Central Criminal Court and pending the hearing of the appeal in the Court of Criminal Appeal, while this case relates to an article published after conviction but before sentence. However, in both cases the pending decision was to be made by a judge or judges, and, whereas the period of time between conviction and sentence and that between the conclusion of the High Court trial and the hearing of the appeal in the Court of Criminal Appeal is not entirely similar, in both situations the administration of justice is not concluded.

Cullen v. Toibín and Another [1984] ILRM 577 was analysed and observations made on the judgment in the Law Reform Commission Consultation Paper on Contempt of Court, July 1991 at pages 93 to 100. The observations made were critical of that judgment.

The Report of the Law Reform Commission on Contempt of Court was published in 1994. That report followed further consultation and in relation to the definition of the offence as to the sub judice principle a different approach was stated at page 35 paragraph 6.9:

“We think that the best approach would be to prescribe that the sub judice rule applies to any publication which creates a substantial risk that the course of justice in the proceedings in question may be seriously impeded or prejudiced.”

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In relation to appellate proceedings the said report stated at paragraph 6.14 on page 37:

“Our provisional recommendations as to when proceedings are to be considered as ‘active’ so as to attract the full rigour of the law of contempt were, on the whole, welcomed, but with one important qualification. Our provisional recommendations, if implemented, would, in effect, have reversed the decision of the Supreme Court in Cullen v. Toibín and Another where the Court discharged an injunction granted by the High Court in respect of the publication of an article dealing with the subject matter of an appeal pending in the Court of Criminal Appeal. While some of us share the opinion of Barrington J., the judge of the High Court in Cullen v. Toibín, that judges can be prejudiced, judges by their training and experience are more accustomed to having to take objective positions than a jury and a line has to be drawn somewhere. The Commission, with the exception of the President, is satisfied that it would be unduly restrictive to extend the operation of the sub judice rule to appellate proceedings, which are invariably decided by non-jury courts.”

These short exerpts from the two Law Reform Commission publications illustrate the difficulty in obtaining the proper balance when considering the offence of contempt of court relating to an alleged interference with court proceedings.

Other jurisdictions

The conflict raised in this case between the due administration of justice and the right of freedom of expression have been considered elsewhere. On the matter of publication after verdict but before sentence there have been differing approaches, as set out in Borrie & Lowe, The Law of Contempt, 3rd Edit., at pp. 161 - 162:

“Once a case has gone on appeal the law of contempt becomes substantially relaxed. This is because professional judges are generally

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thought to be immune from the influence of media comment. Similar considerations might therefore be taken to be applicable after the verdict but before the sentence. This was the view taken by Zuber J. in the Ontario High Court decision Bellitti v Canadian Broadcasting Corp when he dismissed a contempt application against the defendant for broadcasting, pending sentence, a purely factual account of the facts of the case. In England, however, in a drugs case widely referred to as the Operation Julie case Park J. took a different view, warning the press that to publish a ‘background report’ on the accused pending sentence might amount to contempt not on the basis that it would influence him in deciding sentence but because others might think it would.

Park J’s comments were widely criticised and with respect to the judge they do seem hard to justify once it is acknowledged there is no risk of influencing the sentencing tribunal. Some support for his approach might, however, be derived from the New Zealand decision in A-G v Tonics where an accused, having pleaded guilty to the charge of indecent assault, was sent to the Supreme Court for sentence. Before the case was heard, New Zealand Truth published an article demanding that the accused ‘should meet with the utmost vigour of the law’. Myers CJ held that the article amounted to a contempt, not because it could influence the decision of the court, but because:

‘The court must not only be free-but it must also appear to be free-from any extraneous influence. The appearance of freedom from any such influence is just as important as the reality. Public confidence must necessarily be shaken if there is the least suspicion of outside interference with the administration of justice ... If the court imposed [the sentence demanded] it might well be assumed by the readers of the paper that the court had been influenced by the newspaper’s demands. If, on the other hand, a lesser sentence were imposed, the article was calculated in anticipation to arouse resentment against the court.’

Although the rationale of maintaining public confidence and respect for the independence, authority and fairness of the judiciary lies at the heart of other branches of contempt law such consideration has generally not been applied with respect to comments about decisions pending their appeal and it may seem unduly restrictive to apply them to comments pending sentence. It is worth adding that since Park J’s ruling there have been no subsequent warnings nor prosecutions and it has become standard practice for the media to comment between verdict and sentence.”

(Footnotes omitted)

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In effect, in the above recited quotation there are two sources supporting a contempt of court determination post conviction and pre-sentence. One of those, Attorney General v. Tonks [1939] NZLR 533, was a case where before sentence the newspaper stated that the nature of the offence demanded that the prisoner “should meet with the utmost rigour of the law when he comes up for sentence”. It was an exercise in prejudgment of the sentence and so differed from the article in question. Further, it was a decision of 1939 made without the assistance of a written Constitution. The other source of law in favour of the applicant’s submissions is the Operation Julie case heard at Bristol Crown Court in 1978 and of which Borne & Lowe state:

“It is worth adding that since Park J’s ruling there have been no subsequent warnings nor prosecutions and it has become standard practice for the media to comment between verdict and sentence.”

In footnote 9 on page 162 it is noted:

“Over vigorous demands for severe sentences (or the reverse) might be classifiable as a ‘deliberate campaign’ to influence the court and so be a contempt upon the basis mentioned by Lord Parker CJ in R v. Duffy ex parte Nash [1960] 2 QB 188”.

A concern for the administration of justice is at the core of the common law on contempt of court and this may impose limitations on the press. Such concerns were stated by Lord Reid in Attorney General v. Times Newspapers Ltd. [1974] AC 273 at p.300:

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“There has long been and there still is in this country a strong and generally held feeling that trial by newspaper is wrong and should be prevented. I find, for example, in the report in 1969 of Lord Salmon’s committee dealing with the Law of Contempt in relation to Tribunals of Inquiry (Cmnd. 4078) a reference to the ‘horror ‘in such a thing (p. 12, para. 29). What I think is regarded as most objectionable is that a newspaper or television programme should seek to persuade the public by discussing the issues and evidence in a case before the court, whether civil or criminal, that one side is right and the other wrong. It we were to ask the ordinary man or even a lawyer in his leisure moments why he has that feeling, I suspect that the first reply would be - ‘well, look at what happens in some other countries where that is permitted.’ As in so many other matters, strong feelings are based on one’s general experience rather than on specific reasons, and it often requires an effort to marshal one’s reasons. But public policy is generally the result of strong feelings, commonly held, rather than of cold argument.

If the law is to be developed in accord with public policy we must not be too legalistic in our general approach. No doubt public policy is an unruly horse to ride but in a chapter of the law so intimately associated with public policy as contempt of court we must not be too pedestrian. It is hardly sufficient to ask what Lord Hardwicke L.C. meant in 1742 when he referred to prejudicing mankind against parties before a cause is heard.

There is ample authority for the proposition that issues must not be prejudiced in a manner likely to affect the mind of those who may later be witnesses or jurors. But very little has been said about the wider proposition that trial by newspaper is intrinsically objectionable. That may be because if one can find more limited and familiar grounds adequate for the decision of a case it is rash to venture on uncharted seas.

I think that anything in the nature of prejudgment of a case or of specific issues in it is objectionable, not only because of its possible effect on that particular case but also because of its side effects which may be far reaching. Responsible ‘mass media’ will do their best to be fair, but there will also be ill-informed, slapdash or prejudiced attempts to influence the public. If people are led to think that it is easy to find the truth, disrespect for the processes of the law could follow, and, if mass media are allowed to judge, unpopular people and unpopular causes will fare very badly. Most cases of prejudging of issues fall within the existing authorities on contempt. I do not think that the freedom of the press would suffer, and I think that the law would be clearer and easier to apply in practice if it is made a general rule that it is not permissible to prejudge issues in pending cases.”

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In Attorney General v. News Group Newspapers Ltd. [1986] 2 ALL ER 833 at p.840-1 Lord Reid’s statement drawing attention to the importance of the proximity in time to the trial was endorsed.

However, the European Court of Human Rights has held, in The Sunday Times v. The United Kingdom [1978] 2 E.H.R.R. 245 (in plenary Court by a majority of 11 votes to 9), of the pre-trial article in question, that an injunction, an interference with the applicants’ freedom of expression, was not justified under Article 10(2) and accordingly that there had been a violation of Article 10. It was stated:

“67. Having regard to all the circumstances of the case and on the basis of the approach described in paragraph 65 above, the Court concludes that the interference complained of did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression within the meaning of the Convention. The Court therefore finds the reasons for the restraint imposed on the applicants not to be sufficient under Article 10(2). That restraint proves not to be proportionate to the legitimate aim pursued; it was not necessary in a democratic society for maintaining the authority of the judiciary.

68. There has accordingly been a violation of Article 10.”

While Ireland has ratified the European Convention on Human Rights the Convention is not part of the domestic law in Ireland. Reference has been made to a presumed conformity between Irish law on contempt of court and the European Convention on Human Rights: The State (D.P.P.) v. Walsh [1981] IR 412 at page 440. However, not necessarily going so far as to endorse that statement, there is no doubt that when considering the balance which is required to be struck between the protection of the due administration of justice and freedom of expression the jurisprudence of the European Court on Human Rights may provide helpful guidelines.

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Irish Constitution

The Irish Constitution states in Article 40.6.1:

“The State guarantees liberty for the exercise of the following rights, subject to public order and morality:-

i.	The right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.”

As set out previously the test applied by the Supreme Court in Cullen v. Toibín & Anor [1984] ILRM 577 by O’Higgins C.J., is that the freedom of the press

“ ... can only be curtailed or restricted by the courts in the manner sought in these proceedings where such action is necessary for the administration of justice.”

The trial judge stated that he was unaffected by the article. That statement together with the decision of Cullen v. Toibín conclude this aspect of the case stated so that an answer limited to this aspect of the questions would be answered in the negative.

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However, other aspects of the question raised by the applicant, such as the effect on the perception of the administration of justice, the prejudgment aspect ,the danger in public appeasement of the process of justice in creating disrespect for the law, particularly having regard to the very heavy sentence imposed, were raised. It is to these issues that the questions require an answer. These are issues additional to those argued in Cullen v. Toibín and Another.

Within the concept of the administration of justice is the people’s right to an independent justice system where justice is not only done but is seen to be done. As stated by Lord Hewart C.J. in 1923 in R. v. Sussex Justices [1924] 1 KB 256 at p.259:

“ ... a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

This was a reflection on the importance of the perception of the administration of justice. Such a concept may be difficult to test in the practical situation of ongoing litigation.

Obstacles in the way of a fair trial may be encountered by a court in administering justice and these include adverse publicity in the reporting of some crimes. However, the mere fact that there has been significant publicity does not necessarily mean that there has been such interference with the administration of justice that the trial of an offence will be unfair.

There have been a number of cases in recent years relating to pre-trial publicity where it was alleged that there had been an interference with the due administration of justice. However, it has been recognized that juries are robust and capable of hearing cases fairly even when there has been pre-trial publicity: see D. v. Director of Public Prosecutions [1994] 2 IR 465. If there was a real or serious risk that an accused would not receive a fair trial then

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the balancing of his right to a fair trial against the community’s right to prosecute would not arise. The test for the court is as to whether there was a real risk that an accused would not receive a fair trial. To enable an accused person obtain a fair trial not only should the trial be conducted in accordance with fair procedures but the jury should reach its verdict by reference only to evidence admitted at the trial and not by reference to facts, alleged or otherwise, contained in statements or opinions aired by the media outside the trial: Z. v. D.P.P. [1994] 2 IR 476. In that case it was held that in spite of pre-trial publicity to which prospective jurors would have been exposed (they would have heard of the case Attorney General v. X [1992] 1 IR 1) the trial judge would be able to deal with the publicity surrounding it in a very specific manner by directing the jury that the controversy and publicity surrounding the case was completely irrelevant to the trial and must be totally excluded from their minds. In other words the robustness of the Irish Jury was recognised and the administration of justice proceeded.

A similarly robust attitude was rightly taken by the trial judge in this case of his position. A judge, who has been trained in the law and who has made a declaration on taking office, must be capable of withstanding publicity potentially adverse to a trial. However, there still remains the other issues raised. If they, or any one of them, raised a real or serious risk that an accused would not receive a fair trial clearly the balance would be drawn in favour of the fair administration of justice.

Time

In analysing contempt of court the time of the publication in question is of great importance. The time immediately prior to the jury trial is very sensitive. The time

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after conviction and pre-sentence is not so vulnerable because the decision becomes one for the judge. However, as the administration of justice is still continuing, the trial is not concluded, it is still a critical time. After sentence the trial becomes less sensitive though it may once again become critical later on prior to, and at any, appeal or rehearing. Care must be taken to keep articles which are proximate to key proceedings appropriate to the time. The article in question was written at a sensitive time, pre-sentence. It contained material which would be inadmissible to the court and which was negative to the applicant.

Decision

The law on contempt of court is part of the common law. It consists of cases which are underpinned by constitutional principles on the administration of justice. Similarly, the law on freedom of expression is grounded in the Constitution. Thus, this case calls for a balancing of fundamental principles of a democratic society.

The issue is not whether or not the trial judge was affected. He held, and it was accepted, that he had not been affected. Thus, the interference with the administration of justice submitted was not related to the judicial decision maker. The applicant is arguing for a broader range of issues.

Cullen v. Toibín and Another addresses the issue of the effect of publicity on a trial judge. I am satisfied that that case correctly determines that issue. However, further matters, apparently not argued in that case, relating to the due administration of justice, have to be addressed.

In many other jurisdictions the law on contempt of court has been developed by legislation. There is benefit in the legislature addressing such matters of policy, so

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important in a democratic society. However, in Ireland this has not occurred. The law in the United Kingdom has been supplemented by legislation amending the common law.

The law of other jurisdictions cited and referred to in support of the applicant’s submission has limitations. The reference to the Operation Julie case in Borne & Lowe is followed by the author’s reflection that since that case, which was in 1978, there have been no subsequent warnings or prosecutions and that it has been standard practice for the media to comment between conviction and sentence. Attorney General v. Tonks was decided in 1939 in a country without the benefit of a written Constitution or the European Convention on Human Rights.

The jurisprudence of recent years in relation to trials and publicity has been noted: D. v. Director of Public Prosecutions [1994] 2 IR 465; Z. v. Director of Public Prosecutions [1994] 2 IR 476. Jurors are robust. The test for a court in such a situation is whether there is a real risk that an accused would not receive a fair trial.

The community is not in quite the same position as jurors in that it has not the benefit of a judge’s direction. However, in a modern society the media is part of everyday life.

Media reporting of events in society, including court cases, has increased in this the Information Age. Coverage varies from national broadsheets, tabloids, television and radio to similar publications from organisations which sweep the globe. And then there is the Internet! People are exposed to national and international media. Such coverage should be a fair balance between protecting the administration of justice and the right of freedom of expression. If there is a doubt the balance should be tipped in favour of the administration of justice, of a fair trial.

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The common law offence of contempt of court is largely judge made. It is to protect the administration of justice for the individual and the community. A balance is sought to support the requirement of a constitutional democratic society wherein there is the rule of law and trials are conducted in court. Such a balance does not preclude criticism of a decision, including sentence, after sentencing. Nor does it preclude such comment after sentence even though there may be an appeal. A key factor is the proximity of the court process.

There is a degree of artificiality in distinguishing the time after conviction and before sentence and the time after conviction and before appeal. However, it is a worthy distinction. In the first case the trial is still proceeding. Not only is the process of the trial still continuing but the time factor is such that usually there is very little time involved between the conviction and sentence. In relation to the matter of appeal the trial is concluded and generally there is a significant length of time prior to any appeal.

A balance is required to support the dignity of the court (not the judges personally) and the authority of the court. An article such as that in issue published pre-sentence has elements which prejudice the minds of the public against the applicant, excites feelings of hostility, reveals a past criminal record and questionable activities. It is, in fact, an article predisposing the reader to a negative view of the applicant during the course of the administration of justice.

Sentencing is largely a discretionary decision by the judge. Whilst there are mandatory sentences, in most cases (as here) justice requires the judge to determine the just sentence for the convicted person. It is widely understood by the community that sentencing is at the discretion of the judge. An article mid-trial which is prejudicial to the particular person may have many effects. It has been determined in this case by the judge himself that

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he was not influenced. However, an accused may feel that the process was unfair and may wonder if in fact it did have an effect. Also, the community’s concern that justice be done and be seen to be done may be undermined. The concept that articles may be written mid-trial to blacken a convicted person pre-sentence may gain credence as a method of achieving a result - such as shouting at a referee at a match in the hope of affecting his decision! This then raises the risk of prejudicing the administration of justice as a whole, or the perception of the administration of justice. While the article in question was not proposing a sentence or prejudging a sentence, it was written at a time when the trial was not concluded. It was proximate to the sentencing order. Whilst none of these factors may be sufficient in this case to swing the balance in favour of the applicant they have to be considered fully in all the circumstances of the case.

Freedom of expression is not an absolute right under the Constitution, however it is a fundamental right of great importance in a democratic society. In striking a balance between that right of the freedom of expression and the administration of justice if there is a real risk of an unfair trial the balance should tip in favour of the administration of justice and the determination of a contempt of court. Also, if there is a doubt the balance should swing behind the protection of the administration of justice. However, if the matter of the perception of the administration of justice is the issue the situation is fraught with complexity.

The decision as to whether the article was a contempt of court can only be made by the learned trial judge having regard to all the circumstances of the case. The balancing of interests required may be affected by matters including the burden of proof, mens rea and specific defences which were not argued before this court. Such issues may be important in the necessary reconciliation of the conflicting interests required by the trial

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judge. The full circumstances and defences should be raised before the learned trial judge to enable him to achieve the necessary balance.

The questions posed in this case stated were composed in the terms “can it be contempt ...“ and “could it be contempt ...“. They should be answered in the affirmative. It is open to the learned trial judge, and it is for the learned trial judge, to decide, taking into account all the circumstances (some of which may not yet have been established), whether there has been a contempt of court.

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SCHEDULE

Gardai say Eamonn Kelly has been involved with some of Dublin’s most notorious criminals.
Paul O’Neill, Crime Correspondent, reports:

GARDAI BELIEVE KELLY WAS INVOLVED IN OTHER MAJOR CRIMES.

The conviction of Eamonn Kelly for his part in the importation of £500,000 worth of high-purity cocaine into Ireland has been greeted with jubilation by personnel at the Central Detective Unit on whose wanted list he has featured high for several years:

The Garda spotlight has fallen on Kelly during investigations into offences ranging from violent crime to fraud and drug-smuggling, but his most serious previous conviction is for assault, arising out of an incident in 1984 in which a man was stabbed.

Gardai also say that Kelly, a former director of the now-defunct Kelly’s Carpetdrome, was involved in plans to smuggle another large consignment of cocaine into Ireland, if the operation for which he has now been convicted had been successful.

Garda sources who have monitored his activities closely over the years describe him as an “arranger” and an “organiser”, who has been associated with some of Dublin’s most notorious criminals and has also been personally involved in violent crime.

Details of his violent nature have emerged in court proceedings over the past decade, during which he was also linked to the Official IRA. He told the Circuit Criminal Court in 1986 that he had been banned from the Workers’ Party (WP) four years earlier.

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Kelly (44) was jailed for three years in 1988 for an assault on a member of the WP outside a club near the party’s headquarters in Gardiner Place, Dublin, in November 1984. The victim, Mr. Pat Quearney, is now the party’s general secretary.

The jury acquitted him of two more serious charges of maliciously wounding Mr. Queamey and causing him grievous bodily harm. Two years earlier, Kelly had been convicted of both these charges and sentenced to 10 years’ imprisonment, but the Court of Criminal Appeal subsequently ordered a retrial on the grounds that one of the witnesses in the case had been convicted of a serious offence.

During the attack on November 18th, 1984, at Club Uí Chadhain, Mr. Quearney was approached by three men, one of whom punched him in the face and stabbed him three times in the chest.

He is said to have staggered down the steps of the basement and into the club with the knife in his body and then collapsed. According to medical evidence he could have died but for expert medical care.

Mr. Queamey identified Kelly as his attacker, and a barman on the premises said Kelly had been drinking there. Kelly denied he had been there and four defence witnesses claimed that Kelly’s brother, Matthew, had been involved in the row. One witnesses, Mr. Seamus Comberton, accepted responsibility for the stabbing. Kelly also claimed that Mr. Queamey and another witness were under orders from Mr. Cathal Goulding of the Workers’ Party to make their claims.

A detective sergeant told the court that in the seven years he had known Kelly, he had been associating with hardened and dangerous Dublin criminals.

Kelly had come to public attention in 1983 when he and his brother, Matthew, were held personally liable by the High Court for all the debts of their carpet business,

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Kelly’s Carpetdrome, and an associate company, Monck Properties Limited, which were then in liquidation with debts estimated at over £1.8 million.

During a nine-day hearing of an application by the liquidator to have the Kelly brothers made personally liable for the debts, it was alleged that Eamonn Kelly was in the Official IRA, and that he and another man had pushed the barrel of a shotgun into a man’s mouth while attempting to extract information from him about a robbery.

The allegations were made by Mr. Brendan McGoldrick, a former in-house accountant of Kelly’s Carpetdrome Ltd. and Kelly’s Carpet Drive-In, who also claimed that Mr. Matthew Kelly had told an employee that he intended to bum down the firm’s property on the North Circular Road. Mr. McGoldrick was given Garda protection after he had claimed Mr. Matthew Kelly and an associate had threatened to kill him.

He also described a conversation with Eamonn Kelly and another man about a robbery from the North Circular Road Carpet store. Kelly told Mr. McGoldrick not to worry about it, that they had found out who was responsible. Mr. McGoldrick said that Kelly told him he got the information by pushing a shotgun down someone’s throat and saying an act of contrition before threatening to blow off his head.

Mr. Justice Costello ordered that the Director of Public Prosecutions be asked to consider taking criminal prosecutions against Matthew and Eamonn Kelly on the basis of the evidence given about their activities. In his judgment, he said it had been established beyond doubt that Kelly’s Carpetdrome had been run fraudulently for years, and that the absence of proper records and the concealment of falsification of records was part of a scheme to avoid liability for tax.

The judge also said he was satisfied that Mr. Matthew Kelly was the beneficial owner of Carpetdrome and that Eamonn Kelly did his bidding whenever required.

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The father of nine children, Eamonn Kelly was reared in the Summerhill area of Dublin’s north inner city and has convictions for offences including shop-breaking, house-breaking and breach of the peace. But Garda sources say he has also featured in investigations into other crimes including hijacking, forgery and the shooting and wounding of a man in Crumlin in the 1 980s in a dispute over money.

He was closely associated for years with the leading figure in the most notorious criminal family on Dublin’s northside, but they have parted company in recent years. He mixes with a group of criminals which has been involved in a range of illicit activities, including fraud and kidnapping.

He is suspected of being involved with a south-city criminal in the production of thousands of pounds worth of counterfeit £20 notes which were seized last year and he was also at the centre of another forgery investigation.

Garda sources claim he has been involved in the drugs trade for some time, acting as a “middle-man” and specialising in cannabis. His involvement in the importation of cocaine is said to have been a new departure and, according to detectives, the 997.3 grams of the drug involved was purchased for about £20,000.

That money was put up by Kelly and two other men, one of whom is believed to have provided the link with Westport-born Mr. John Francis Conlon (50), who was arrested with Kelly and who is alleged to have organised the U.S. end of the operation. He faced the same charges as Kelly but failed to answer his £140,000 bail bond at Dublin District Court last December. A warrant has been issued for his arrest.

Mr. Conlon has an address in Miami and is also said to run a hotel and leisure complex in Norwich in England.. Gardai have established that he travelled first to England after he absconded and Interpol is assisting in the search.

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The drugs were carried by Elisabeth Yamanoha (40), a native of Cuba with an address in Miami. Gardai say they are satisfied, on the basis of their investigation, that the consignment, which is thought to have originated in Colombia, was intended to be the first of a series.

The seizure on September 3rd last year was the culmination of six months’ work by the Serious Crime Squad, and events at the Circuit Criminal Court have been hailed by detectives as a major success.

The seizure was one of the largest hauls of cocaine in the State, and the scale of it and other recent finds has caused speculation by some Gardai that they were intended for markets outside Ireland. Others believe they reflect a rising demand in Ireland - or an attempt to foster demand - for cocaine, which is probably the dearest of the illegal drugs available.

The drug is associated with affluent young people characterised as “young; upwardly mobile professionals”, and according to Gardai it sells for as much as £180 a gram, with purity levels as low as 15 per cent.

Jury deliberated for almost 11 hours

After almost 11 hours of deliberation which ended shortly before 3 a.m. on Saturday, a jury at the Dublin Circuit Criminal Court found a 44-year-old man guilty by a 10-2 majority on two charges of having £500,000 worth of cocaine in his possession last September.

Eamonn Kelly, married and a father of nine children, of Furry Park Road, Dublin 5, was remanded in custody by Judge Cyril Kelly until May 27th when he will be sentenced.

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A Cuban woman was unanimously convicted by the same jury, after four hours of deliberation, of importing the cocaine on September 3rd, 1992. Elisabeth Cabanas Yamanoha (40), of Miami, Florida, was also found guilty of possessing the cocaine and having it for supply. She will be sentenced on the same date.

Judge Kelly directed that a social impact report be prepared along with probation reports on both defendants, and a medical report on Yamanoha. He said the social impact report on cocaine should include details of the drug’s relevance, its association with crimes, and its effect on the community.

The verdicts were delivered by the jury after a 13-day trial during which both defendants denied the charges arising out of the seizure by Gardai of 997.3 grammes of cocaine. Forensic evidence was given that the drug had a purity of 80 per cent.

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THE SUPREME COURT
179/95
Hamilton, C.J.
Denham, J.
Barrington, J
Keane, J. 
Lynch, J.

BETWEEN
EAMONN KELLY
Applicant/Respondent
AND

PAUL O’NEILL & CONOR BRADY
Respondents/Appellants
JUDGMENT delivered the 2nd day of December, 1999 by Keane, J.

The applicant was convicted in the Dublin Circuit Criminal Court on the 15th May 1993 of two offences, i.e. of having in his possession cocaine and of having the same substance in his possession for the purpose of supplying it to others. The trial judge postponed sentencing of the applicant until the 27th May 1993 in order to enable evidence to be given by garda and expert witnesses.

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On the 17th May 1993, an article appeared in The Irish Times, of which the second named respondent is the editor, under the heading “Gardai believe Kelly was involved in other major crimes”. The article was written by the first named respondent, a crime correspondent of The Irish Times.

The article, which occupied nearly half a page of the newspaper, began as follows:-

“The conviction of Eamon Kelly for his part in the importation of £500, 000 worth of high purity cocaine into Ireland has been greeted with jubilation by personnel at the Central Detective Unit on whose wanted list he has featured high for several years.

“The Garda spotlight has fallen on Kelly during investigations into offences ranging from violent crime to fraud and drug smuggling, but his most serious previous conviction is for assault, arising out of an incident in 1984 in which a man was stabbed.

“Gardai also say that Kelly, a former director of the now defunct Kelly's Carpetdrome, was involved in plans to smuggle another large consignment of cocaine into Ireland, if the operation for which he has now been convicted had been successful.

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“Garda sources who have monitored his activities closely over the years describe him as an ‘arranger’ and an ‘organiser’, who has been associated with some of Dublin’s most notorious criminals and has also been personally involved in violent crime.”

The article went on to give details of the assault case referred to in this extract and also of liquidation proceedings in the High Court in 1983 in which the applicant was found to have been concerned in fraudulent trading by the company in liquidation.

The article also stated that the applicant:-

“ ... was closely associated for years with the leading figure in the most notorious criminal family on Dublin’s northside, but they have parted company in recent years. He mixes with a group of criminals which has been involved in a range of illicit activities, including fraud and kidnapping.

“He is suspected of being involved with a south city criminal in the production of thousands of pounds worth of counterfeit £20 notes which were seized last year and he was also at the centre of another forgery investigation.

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“Garda sources claim that he has been involved in the drugs trade for some time, acting as a ‘middle man’ and specialising in cannabis. His involvement in the importation of cocaine is said to have been a new departure and, according to detectives, the 997.3 grams of the drug involved was purchased for about £20, 000.”

On the 19th May 1993 an application was made by the applicant to the High Court (Lardner J.) seeking the attachment of the respondents for alleged contempt of court. Lardner J. was of the view that any such application should be made to the trial judge and accordingly declined to make any order. The application was then made to the trial judge.

In an affidavit, the applicant said that the contents of the article were malicious and pernicious lies’’ and that the possibility of a dispassionate assessment of his case had been “utterly destroyed” by the contents of the article. The second named respondent in a replying affidavit said that he and the first named respondent considered themselves free to comment on what they believed to be a matter of public importance, namely the fact of the jury’s decision and the applicant’s previous court appearances and actions, once the proceedings had passed out of the hands of the jury. He said that neither he nor the first named respondent had intended, by the publication of the article, to interfere in any way with the determination by the trial judge of the appropriate

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sentence. He said that, if the respondents were in contempt, it was unintentional on their part and that they both apologised unreservedly to the court.

The trial judge, having heard arguments on behalf of the parties, concluded that, as a matter of fact and law, he was incorruptible, but that the article did constitute a contempt of the Circuit Court. He imposed a fine on the respondents in the sum of £5,000 and awarded the costs of the application to the applicant.

An appeal from that decision was brought to the High Court. Having heard submissions, the learned High Court judge (Morris J. as he then was) stated a consultative case for the opinion of this court on the following questions:-

“(a) 	Can it be a contempt of Court to publish an article in the terms of that complained of after a criminal trial has passed from the seisin of the Jury and where the remainder of the hearing will take place before a Judge sitting alone?

(b)	Given the constitutional right to freedom of expression of the press -could the publication of the article complained of ever constitute a

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contempt of Court when published after conviction and before sentencing?”

This court was informed that the applicant had been sentenced to fourteen years’ imprisonment by the Circuit Court, that a retrial had been ordered by the Court of Criminal Appeal (on grounds which are not relevant to these proceedings) and that on the retrial the applicant had been convicted and again sentenced to a term of fourteen years’ imprisonment. A further appeal to the Court of Criminal Appeal was unsuccessful.

This case is concerned with criminal contempt of court, which may take a number of forms. The category now under consideration consists of

“Any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts...”

That definition by Lord Russell of Killowen C.J. in R. v. Grey [1900] 2 QB 36 at p.40 was adopted by O’Higgins C.J. in The State (DPP) v. Walsh [1981] 1R412 at p.421.

The policy which has shaped the criminal contempt of court jurisdiction is clear. Whichever form it takes - contempt in the face of the court,

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interference with witnesses, “scandalising” the court or breaches of the sub judice rule - criminal contempt has been regarded by the law as necessitating punishment, because, if it were to go unpunished, the consequences for public confidence in the administration of justice would be profound. In a specific case it will be the parties to the litigation who will be immediately affected - in this case the applicant whose right to a fair trial, it is claimed, was compromised - but the law is founded, not merely on the immediate interest of those parties but upon the wider public interest in the administration of justice.

In this, as in many other common law jurisdictions, criminal contempt has been almost entirely a judge made doctrine, but one that has been found to be consistent with the exclusive role in the administration of justice conferred by the Constitution on the courts which it established: see the judgments of this court in The State (DPP) v. Walsh [1981] IR 412 and Re: Kennedy and McCann [1976] JR 382. Although peculiar to the common law jurisdictions, it has been found to be in conformity with the European Convention on Human Rights: in Sunday Times v. UK [1979] 2 EH RR 245, a majority of the court rejected an argument that the jurisdiction was so uncertain and unsettled that the restrictions on freedom of expression which it imposed could not be regarded as “prescribed by law” within the meaning of Article 10(2) of the Convention. It was also pointed out in that case that the concluding words of Article 10(2) which sanctioned such restrictions where their object was

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maintaining the authority and impartiality of the judiciary” were included in the Convention with the common law doctrine of contempt of court in mind. At the same time, as this litigation demonstrates and as was found by the Law Reform Commission in their report on Contempt of Courts (LRC 47 - 1994), our law in this area is in many respects uncertain and in need of clarification by legislation.

There can also be no doubt that, in the area with which this case is concerned, i.e the sub judice rule and that of “scandalising” the court, to give it the traditional, archaic description, the contempt of court jurisdiction should not be lightly invoked by the courts: the freedom of expression guaranteed by the Constitution should not be curtailed save to the extent necessitated in protecting the administration of justice.

In this case, it is beyond argument that, if an article containing the material to which I have referred had been published during the trial but before the applicant was convicted, that would have been, not merely a contempt of court, but one of a very serious nature indeed. The issue is as to whether it ceased to be contempt of any sort once he had been convicted, although sentence had yet to be pronounced. The basis on which it is submitted that it cannot constitute contempt in those circumstances is that, although the trial has not concluded, the sentence will be determined by a professionally qualified judge who, having regard to those qualifications and to the solemn declaration

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he made on becoming a judge, must be presumed to determine the appropriate sentence solely having regard to the evidence adduced before him and the submissions made to him prior to the imposition of the sentence. It must be presumed, counsel on behalf of the respondents urges, that he will have no regard whatever to material, such as appeared in this article, which was not proved in evidence before him.

As it happens, in the present case, not only did the trial judge make it emphatically clear that, in imposing sentence, he would not in any way be affected by the contents of the article: the sentence actually imposed by him was not altered by the Court of Criminal Appeal, and a similar sentence was imposed on the retrial and, again not interfered with on appeal. Since any impact the article might have had would probably long since have faded from the minds of those judges who happened to have read it and who subsequently had to deal with this case, its history affords striking confirmation, if such is required, that the original sentence was properly imposed solely having regard to the evidence before the trial judge.

Contempt of court is committed, however, when a person publishes material which is calculated to interfere with the course of justice: it is not a necessary ingredient of the offence that it results in such an interference. If an article containing material of this nature had been published during the trial but before the jury had recorded their verdict the trial judge might or might not

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have acceded to an application that the jury should be discharged. If the article had been published before the trial but at a stage when the applicant had been charged with the relevant offences, the court might have declined to prohibit the continuance of the criminal proceedings if it were satisfied that any risk that the accused might not receive a fair trial could be avoided by giving appropriate directions to the jury to exclude from their consideration any material they might have read concerning the case. But the fact that a trial was allowed to proceed on the basis that the jury, if they read the offending article, would be capable of excluding it from their minds would not of itself be a ground for treating the article other than as a contempt of court.

The law adopts this approach because to do otherwise would be to put at risk the public confidence in the administration of justice which it is the very purpose of the contempt of court doctrine to preserve. If the press, television or radio or any one else were free to publish such material with impunity and availed of that freedom in an irresponsible manner, many persons facing criminal charges might well consider that their prospects of a fair trial by an impartial jury had been seriously damaged. But that is not the only relevant consideration. As has been frequently pointed out, the right to a fair trial in due course of law guaranteed under the Constitution is not simply a right vested in those who happen to be accused of particular crimes: it is in the interest of the

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community as a whole that the right should be protected and vindicated by the State and its organs.

Judges no doubt are in a significantly different position from jurors when it comes to excluding potentially prejudicial material from their consideration of a case: their professional training and experience and the solemn declaration which they are required to make in public are powerful guarantees of their independence and impartiality. But they are also human and the law would be difficult to reconcile with common sense if it had to proceed on the basis that, unlike other people, they were incapable of being prejudiced in their views by material damaging to a particular litigant to which they had been unnecessarily exposed. I would not wish to venture into a field beyond the expertise of a judge, but even a rudimentary knowledge of psychology would suggest that a person conscientiously striving to reach a decision free from prejudice might be influenced at a subconscious level in his conclusions by material which he had made every effort to banish from his mind.

Those are general considerations which are applicable to judges trying every sort of case at every level, civil or criminal. There are undoubtedly many cases which judges would feel happier deciding without a sense that public opinion - or, at all events, that sometimes elusive concept as reflected in the media - was leaning in a particular direction. But it would be extending the contempt of court jurisdiction to stigmatise as criminal comment in the media

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simply because it makes the judicial task less comfortable at times than judges would wish.

There are special considerations, however, arising where the sentencing of convicted persons are concerned, which must at least be borne in mind. In such cases, depending on the nature of the publication, the inference may be drawn that a court responded to a popular demand for an exemplary sentence and such an inference, however unjustifiable, might, on one view, be regarded as damaging to the administration of justice.

Before turning to the authorities, there is one feature of the article in this case to which I should refer. The writer at no stage, in even the most oblique fashion, expresses any view as to what sentence the Circuit Court might, still less should, impose in the particular case. What would be the position if it had concluded with an exhortation to the trial judge to impose the maximum sentence possible? What if the language used in urging that course was of a kind which one would not associate with this particular newspaper, but with at least some sections of the tabloid press?

It would seem surprising if such a publication could not in any circumstances be regarded as a contempt of court. Yet it must also be assumed that in such a case the trial judge to whom the exhortations are directed would be similarly unaffected in arriving at his decision. The fact that the contempt, if

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such it be, would be more blatant would be relevant only to the imposition of the penalty.

The relevant authorities in this and other common law jurisdictions are sparse, of itself perhaps an indication that the courts have been cautious in invoking the jurisdiction. In Bellitti v. Canadian Broadcasting Corporation [1974] 44 DLR (3d) 407, the Ontario High Court dismissed a contempt application in respect of a broadcast by the defendant pending sentence: in that case, however, no more than a factual account of the case had been broadcast. In an unreported English case in 1978, known as The Operation Julie, also a drugs case, Park J warned the press not to publish a “background report” on the accused pending sentence, not because it would influence him in deciding a sentence but because others might think it would. (The case is noted in Borne & Lowe on The Law of Contempt 3rd edtn, at p.161.) In Attorney General v. Tonks [1939] NZLR 533, the Supreme Court of New Zealand held that a newspaper comment, made after the accused had pleaded guilty but before he had been sentenced, constituted a contempt of court. The accused had pleaded guilty to indecent assault and the paper had said:-

“The revolting nature of (the accused’s) offence against this helpless innocent demands that he should meet with the utmost rigour of the law when he comes up for sentence. This is due to

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the community for the sake of the protection of little children.”

Myers, CJ, in the course of his judgment said

“The publication of the matter complained of is a contempt of Court only if it was calculated to prejudice, obstruct, or interfere with the due administration of justice. I can entertain no doubt that it was. The Court must not only be free - but must also appear to be free -from any extraneous influence. The appearance of freedom from any such influence is just as important as the reality. Public confidence must necessarily be shaken if there is the least ground for any suspicion of outside interference in the administration of justice. Any publication therefore that states or implies that the sentences imposed by the Court are, or may be, affected by popular clamour, newspaper suggestion, or any other outside influence is, in my opinion, calculated to prejudice the due administration of justice.”

The learned editors of Borne & Lowe comment:-

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“Although the rationale of maintaining public confidence and respect for the independence, authority and fairness of the judiciary lies at the heart of other branches of contempt law such consideration has generally not been applied with respect to comments about decisions pending their appeal and it may seem unduly restrictive to apply them to comments pending sentence. It is worth adding that since Park J’s ruling there have been no subsequent warnings nor prosecutions and it has become standard practice for the media to comment between verdict and sentence.”

In R. v. Duffy & Ors., Ex Parte Nash [1960] 2 QB 188 where the allegedly offending article had been published after the sentence had been imposed, but while an appeal was pending, the Queen’s Bench Division refused to issue a writ of attachment, but Lord Parker LCJ said that the position might have been different if:-

“the article in question formed part of a deliberate campaign to influence the decision of the appellate tribunal.”

There are no Irish cases directly in point. In Cullen v. Toibin and Another [1984] ILRM 577, this court discharged an injunction granted by the

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High Court (Barrington J) restraining the defendants from publishing an article in the defendant’s magazine concerning the plaintiff while his appeal to the Court of Criminal Appeal from a conviction for murder and malicious damage to property was pending. Barrington J, who in the course of his judgment observed that if he had been asked to sit on the Court of Criminal Appeal, having read the article, he would have asked to be disqualified, said:-

“Mr. Mitchell, for the defendants, submits that there is no danger of the plaint if being prejudiced in his appeal by the publication of the article because the appeal will come before three professional judges who are trained to exclude irrelevant or inadmissible matter from their minds. No doubt judges are so trained and for that reason courts have traditionally taken a less serious view of adverse pre-trial publicity where a case was to be tried by a judge or judges alone than when it was to be tried by a judge sitting with a jury. Certainly the courts have taken this view when the adverse publicity consisted of mere general assertions e.g. that an alleged statement was involuntary, but that is not the present case. Speaking for my own part I think it would be unwise to assume that judges are totally immune from frailties commonly held to afflict jurors.”

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That view was not expressly dissented from by the three members of this court (O’Higgins CJ, Hederman J and McCarthy J). The judgments of O’Higgins CJ and McCarthy J make it clear that they considered the appeal should be allowed in that case because the three judges of the Court of Criminal Appeal would be concerned with matters of law only. The decision, accordingly, does not dispose of the issue which has arisen in this case where the trial judge, when he came to impose sentence, was undoubtedly dealing with facts.

Other judges have shared Barrington’s J’s reservations as to the supposed immunity of judges from the frailties afflicting jurors. In The People (DPP) v. Conroy [1986] IR 460, Finlay CJ said that:-

“Experience as a judge indicates that even as a trained lawyer there is a very significant difficulty in excluding from one’s mind incriminating evidence on the trial of a criminal case which is inadmissible.”

In Attorney General v. BBC [1981] AC 303 at p335, Viscount Dilhorne said that he found the claim to judicial superiority over human frailty one which he had some difficulty in accepting. He added:-

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“... it should, I think, be recognised that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it.”

Opinions of other eminent judges to the same effect could also be cited, but it is perhaps enough, for the purposes of this judgment, to observe that expressions of a contrary view can also be found. Thus, Lord Bridge in Re: Lonrho Plc [1990] 2 AC 154 at 209 said that:-

“If the trial is to be by jury, the possibility of prejudice by advance publicity directed to an issue which the jury will have to decide is obvious. The possibility that a professional judge will be influenced by anything he has read about the issues in a case which he has to try is very much more remote. He will not consciously allow himself to take account of anything other than the evidence and arguments presented to him in court.”

The decision of the House of Lords in AG v. Times Newspaper Limited [1974] AC 273, was also referred to during the course of the arguments. However, in my view, it is of no assistance in resolving the issue which has arisen in this case. While the law lords did not all adopt the same reasoning in

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coming to the conclusion that the Attorney General was entitled to the injunction which he sought in that case, the salient issue was that of prejudgment” in civil cases and the importance of restricting what was described as “trial by the media” in such cases. Secondly, the judgments must be read in the light of the finding by the majority of the Court of Human Rights in the case to which I have already referred that the restrictions imposed on the newspaper in commenting on the thalidomide disaster went further than was ‘‘necessary in a democratic society’’ for maintaining the authority of the judiciary within the meaning of Article 10(2), particularly having regard to the public interest aspect of the case. In Desmond & Anor. v. Glackin & Ors. [1992] ILRM 490, O’Hanlon J. referred to the decision of the Court of Human Rights in that case but expressed no concluded view as to whether AG v. Times Newspapers Limited should be followed in Ireland. It is similarly unnecessary in this case to resolve that particular issue.

Conclusions

The first question posed by the learned High Court judge is whether the publication of an article in the terms of that complained of after the jury have returned a verdict of guilty but before sentence is imposed can be a contempt of court. I have no doubt that one which simply summarised the facts of the case as they had been presented to the jury could not be regarded as calculated to interfere with the administration of justice and one would have little difficulty

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in reaching the same conclusion where the article also included background material of an innocuous nature concerning the accused. Different considerations, as I have already suggested, might apply to an article which urged a court in strident and intemperate terms to adopt a particular approach in sentencing the convicted person.

The publication with which we are concerned falls into neither category. It does not urge the imposition of any particular sentence. But it does go considerably further than simply recounting the facts adduced in evidence at the trial and adding innocuous background material concerning the accused. It puts into the public domain allegations derived from “garda sources” concerning the applicant which it is not suggested were adduced in evidence at the trial or would be admissible in evidence at the sentencing hearing and which, if any regard were had to them, could only be seriously damaging to him.

There are other features of the article which would have to be taken into account if the conclusion were reached that it was calculated to interfere with the administration of justice. First, the circumstances of the case, particularly the applicant’s previous criminal record, indicated that the likelihood of the publication being seen to influence the sentence, let alone actually influence it, was clearly of a low order. Secondly, no notice to cross-examine the second named respondent on his affidavit appears to have been served and, if that

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remained the position, the trial judge would be entitled to conclude that the article had been published in good faith on a matter of public interest without any intention of influencing the court. That in turn would raise the question as to whether the offence of criminal contempt had been committed at all, given the absence of any guilty mind or mens rea on the part of the respondents. (The respondents could also, of course, point to the uncertainty reflected by this litigation as to whether press comment after the verdict but before the sentence was imposed was in contravention of the sub judice rule.) While undoubtedly the generally accepted view of the law has hitherto been that the offence is absolute in its nature and does not require the establishment of mens rea one certainly could not exclude the possibility that, in the absence of any modem Irish authority, the courts in this country might have come to the conclusion that mens rea was a necessary ingredient of the offence. On any view, the circumstances of this case would clearly have called for the imposition of no more than a modest penalty and, for the reason I have suggested, the respondents might have been found innocent of any contempt.

The questions the court has been asked in this case are not, however, whether, in the light of the circumstances to which I have referred, the High Court would have been entitled to acquit the respondents of the charge of criminal contempt or whether the factors to which I have referred could be taken into account by the court in imposing a penalty. The first question this

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court has been asked is, in effect, whether the respondents must be acquitted of the charge of criminal contempt solely by reason of the fact that the jury had completed their consideration of the case. If the answer to that question is yes”, the same conclusion would follow no matter how intemperate the terms of the article were. It would equally follow that no contempt had been committed in a case where the article contained the grossest falsehoods about the convicted person which were deliberately published with a view to influencing the sentence. It would even be the result if the publication were part of what was described in R. v. Duffy & Ors. Ex Parte Nash as a “deliberate campaign” to influence the court and contained material, not merely false, but known to be false. Such conduct would attract no form of criminal sanction. The only redress the law would afford would be a civil action for defamation at the instance of the convicted person which, in the circumstances, would hardly be regarded as a particularly effectual remedy or indeed any form of remedy.

The same conclusion, it should be noted, might follow even in a case where the court had still to return its verdict. If the sub judice rule is of no relevance in a criminal trial before a judge or judges sitting alone, it must follow that an article of the nature to which I have referred could be published without any form of criminal sanction being available in the case of a trial before a Special Criminal Court or a summary hearing in the District Court even before the court reached its verdict. I confine myself, of course, to

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criminal trials; in a civil action, the possibility of such comments inhibiting the right of access to the courts of citizens referred to by Denham J. in Wong v. Minister for Justice [1994] 1 IR 223 would obviously have to be taken into account, as would the issues dealt with by the House of Lords in AG v. Times Newspapers Limited and left unresolved by the High Court in Desmond & Anor. v. Glackin & Ors.

The courts have always considered themselves empowered to treat as contempt of court breaches of the sub judice principle in the case of criminal jury trials. This court has pointed out on a number of occasions in recent times that the courts should not underestimate the capacity of the modern jury to approach its deliberations in a properly impartial manner and to ignore press comment, however unbalanced and even hysterical. But the power to punish such a contempt remains, because of the clear danger that such comment might be seen as being capable of influencing the jury’s verdict, not least by the person who is on trial. It is, in short, a common law machinery, essential in the absence of any appropriate legislation, designed to protect the constitutional right of the accused person to a trial in due course of law guaranteed by Article 38.1 of the Constitution. I have not been persuaded by the arguments in this case that the application of due process ceases in this context once the jury have returned their verdict, because of the assumed immunity of the judges from the

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frailties to which juries are acknowledged to be subject. I would answer the first question in the affirmative.

The second question, in effect, asks whether that conclusion should be modified in the light of the constitutionally guaranteed right to freedom of expression of the press. I am satisfied that it should not. Freedom of expression is undoubtedly a value of critical importance in a democratic society, but like every other right guaranteed, either expressly or by implication, by the Constitution it is not an absolute right. The limitations on freedom of expression required by the machinery of contempt of court were found not to be of themselves in violation of the right of freedom of expression guaranteed by the European Convention on Human Rights in Sunday Times v. UK. I appreciate that deferring publication of an article of this nature until after sentence had been imposed might be commercially unattractive to the newspaper concerned. But the restraint is in a different category from the absolute prohibition on publication required by the “scandalising the court” doctrine, which suggests that an even greater caution should be exercised by the courts in that area. A temporary restraint on a publication of this nature, lasting sometimes for no more than a day or two and at most a few weeks, seems to me a not disproportionate restriction, when weighed in the balance against the damage which could be done to the administration of justice if the press, television and radio or any one else were to have an unrestricted licence,

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subject only to the law of defamation, to comment freely and publish material, however untrue and damaging, concerning a trial at a stage when it was still in progress and the accused, although found guilty, was still entitled to the solemn constitutional guarantee of a trial in due course of law. I would also answer that question in the affirmative.