In Irish Bank Resolution Corp Ltd v Quinn and Ors ([2012] IESC 51), the Supreme Court commented that the law of contempt of court was amorphous and extremely difficult for the layperson to understand, and could be unclear even to judges and lawyers.
More recently, in Meath County Council v Hendy ([2020] IEHC 142), it was noted that “contempt procedure is notoriously complex and stubbornly resistant to judicial clarification, despite repeated efforts”.
The courts, however, gave some guidance recently on contempt in Tracey v District Judge McCarthy ([2019] IESC 14), Walsh v Minister for Justice ([2019] IESC 15) and Meath County Council (see below).
What is contempt of court?
There are two types of contempt of court.
Civil contempt is the means by which courts punish those who disobey court orders. There is no point in having a courts system if people are able to get away with not obeying the decisions of those courts.
Criminal contempt is used by the courts to protect their operation, for example, by punishing people who disrupt the court when it is sitting, or protecting the integrity of criminal trials by, for example, preventing people from interfering with them by unlawfully publishing information about them.
In Keegan v de Burca ([1973] IR 223), the Supreme Court explained that the object of criminal contempt is punitive. Civil contempt, on the other hand, is designed to be coercive – that is, its object is to compel the person to comply with the order of the court, and the period of committal is until such time as the order is complied with.
In IBRC v Quinn, Fennelly J found that there may sometimes be a punitive element in cases of civil contempt.
Need for contempt legislation
The Supreme Court has been calling for contempt-of-court legislation for some time. In Kelly v O’Neill ([2000] 1 IR 354), Keane J said that “our law in this area is, in many respects, uncertain and in need of clarification by legislation”. See also IBRC v Quinn and Walsh.
In IBRC v Quinn, the Supreme Court pointed out: “It is 20 years now since the Law Reform Commission urged the need for statutory reform in this area, and some 31 years since such reform took place by statute in the neighbouring jurisdiction. It is most unfortunate that no positive steps have been taken here, with the result that this fraught matter has come on for resolution in an uncertain state of the law.”
There was an attempt to put contempt of court on a statutory footing with the Contempt of Court Bill 2017. This was a private member’s bill that had provisions, not only for contempt of court, but also for contemptuous online publications.
Unfortunately, the bill lapsed with the dissolution of the last Government, but it may gain traction again as its sponsor Josepha Madigan was re-elected, and many of its proposals were in the Programme for Government.
Publications on social media of prohibited material are an issue of growing concern in this and other jurisdictions (for example, the New Zealand Contempt of Court Act 2019, which introduced similar provisions).
The most significant example of this in Ireland, recently, was the trial of Boy A and Boy B for the murder of Ana Kriegel. Contempt-of-court proceedings were brought against Facebook and Twitter due to the publication on those sites of the identities of those accused.
Dealing with contempt
The Supreme Court in Tracey and Walsh gave guidance on how to deal with criminal contempt. These cases were heard together.
Where a person behaves in a disruptive manner, this is known as contempt in the face of the court. A judge should warn them here that the court has power to remove them from the courtroom. If they persist, the judge should explain how they are being disruptive and give them a chance to explain themselves.
If they apologise and undertake not to repeat the behaviour, it will normally be appropriate to take no further action. If they don’t, the court should order them to leave. The court can order a court to be cleared.
Where the person is a party to the proceedings, a court should be slow to remove them. If it does so, the ejected party should be given a copy of the digital audio recording (DAR).
If the conduct at issue is serious enough, then a court may proceed with a separate hearing of a charge of contempt, which, if proven, may result in a fine or imprisonment. Where a court does this, the person concerned should be warned, told in simple terms of the conduct considered capable of constituting contempt, and be given the option of obtaining legal representation, including legal aid, if necessary.
Although the hearing can proceed immediately where lawyers are available, in some cases it may be necessary for the hearing to be postponed for a short period to allow for the arrangement of legal representation.
Contempt hearing
The person should be informed of the time and date of the contempt hearing, which should proceed within a short period of the original incident. A court can detain the person during this time, but this power should be exercised with restraint, and the period of detention should not be for more than a day.
The hearing can be straightforward, but the accused person must be given a fair opportunity to defend themselves. The criminal standard of proof applies, and the same right of appeal applies as would normally be the case.
If the contemptuous act is alleged to have occurred before a court of final appeal, or in respect of which appeal is limited, the court may proceed, but it has the option of directing that the matter be heard in the High Court, even if this is a lower court.
Due to the availability of the DAR, it will be unlikely that there will be any need to call the judge (or any other court officer) as a witness. In most cases, it will be inappropriate to do so. Production of the DAR extract is all that is required to establish the basic facts in most cases. It is then a matter for the accused to make a defence or apology.
When the alleged contempt consists of allegations against a judge personally, it will be necessary to have the issue heard by another judge, possibly via a referral to the attorney general, who may bring the matter before the High Court. The DAR should be used, and the original judge should not be called as a witness.
Guidance was given as to civil contempt in Meath County Council. The High Court held that the correct process for a coercive order in respect of civil contempt is as follows:
“(i) If there is some added value to a separate preliminary finding in that regard, the court can first make a finding simpliciter as to whether the respondent is in contempt or not,
(ii) If so, the question of whether and to what extent a respondent has the capacity to comply with the order may need to be decided on, if that is an issue, and
(iii) Finally, there is the question of the appropriate order, if any, on foot of any finding of contempt, which includes, but is not limited to the custodial orders referred to in [order] 44, but may include financial orders as well; and, in particular, if there is no capacity to comply or limited capacity, the court may have to confine itself to non-custodial options, such as orders addressed to assets.”
New frontiers
While the law here has recently been clarified by the Supreme Court, it is time that contempt was put on a statutory footing. It has been on a statutory footing in Britain since 1981. Modern legislation will help the courts deal with modern problems, such as online publications.