Attorney General v O'Kelly

• Jurisdiction: Ireland
• Court: High Court (Irish Free State)
• Judgment Date: 20 March 1928
• Date: 20 March 1928

High Court.

Attorney-General v. O'Kelly.

THE ATTORNEY-GENERAL OF THE IRISH FREE STATE

and

SEAN T. O'KELLY, Editor of "The Nation" newspaper (1)

Contempt of Court - Publication in newspaper - Comments on observations made by Judge on the conduct of jury - Scandalising the Court - Motion to attach - Jurisdiction of High Court - Powers conferred by the Constitution - Constitution of the Irish Free State (Saorstát Éireann éireann) Act,1922 (No. 1 of 1922), Sch. I, Arts. 2, 64, 72, 73 - Courts of Justice Act,1924 (No. 10 of 1924), sect. 17.

Motion.

The Attorney-General of the Irish Free State applied for an order of attachment against the defendant, Sean T. O'Kelly, for contempt of Court for passing for printing and causing to be printed and published in the issue of a newspaper known asThe Nation, of the 18th day of February, 1928, a note or statement on page 1, column 2, thereof, entitled "Contempt for Free State Courts," and an Article on pages 4 and 5 thereof entitled"Judge's insolence to jurors."

In an affidavit in support of the motion, Superintendent Ennis, in charge of the Detective Branch of the Civic Guard, and as such in charge of certain prosecutions against Sean Russell, Michael Price, and James Donnelly, at the Central Criminal Court, Dublin, on the 10th day of February, 1928, stated that, when jointly arraigned, the said Sean Russell and the said Michael Price refused to plead. They remained silent. A jury was then impanelled to try whether they were "mute of malice or by visitation of God." He (Superintendent Ennis) gave evidence that they had spoken to him in English. No evidence was offered on behalf of the accused. The jury failed to agree, and were directed

by the Judge to retire. James Donnelly was then arraigned, and he, too, refused to plead. A jury was then empanelled to decide the same issue in his case, i.e., whether he was "mute of malice or by visitation of God." Evidence was given to prove that he, too, could speak. The jury in his case intimated that there was no hope of agreement. The accused then said:"To save further trouble, I refuse to plead." A plea of "not guilty" was then entered. The Judge discharged the jury which had been empanelled to decide the issue whether the accused was "mute of malice or by visitation of God," and in doing so the Judge remarked that the jury must have acted in disregard of the oath they had taken. The Judge then ordered the jury who had retired to consider whether Sean Russell and Michael Price were "mute of malice or by visitation of God" to be recalled. The foreman announced that they could not agree. The Judge discharged them, saying he could only come to the conclusion that some of their body had acted perversely and in disregard of their oath and the law. The accused were then put back, and had not yet been tried.

Deponent referred to a copy of The Nation newspaper, dated the 18th February, 1928, containing the following note or statement, entitled "Contempt for Free State Courts," and the following Article, entitled "Judge's insolence to jurors":—

"Contempt for free State Courts.

Two separate juries of Dublin citizens demonstrated in the Central Criminal Court last Friday their utter contempt for Free State law. Three Irish Republicans, Sean Russell, Michael Price, and James Donnelly, were charged with the "crime" of being members of Republican organisations and two of them with the additional heinous offence of walking out of Mountjoy Prison when the gates were opened for them by some of their comrades. As the three young men refused to speak or plead, the juries were called upon to decide whether the men were "mute of malice or by the visitation of God." The juries reported they could not agree on a verdict, and after having been sent back several times, with instructions that they must agree, they were eventually discharged by the Judge. The moral of all this is plain—Dublin jurymen are sick of being called upon to assist the murderers of December 8th, 1922, to pursue their wicked vendetta against decent, honourable Irish citizens, whose only crime is their faithful adherence to their Irish Republican convictions.

The Irish Times is much upset over the behaviour of these juries, and said in an editorial on the subject in last Saturday's issue:—

'There can be no excuse for such conduct. During the last few years all friends of the Free State have been rejoicing in the belief that terrorism had had its day, and that, at last, Dublin jurors were beginning to do their duty fearlessly. A new sense of civic responsibility had been growing in the country, and the Saorstát no longer could be regarded as the evil-doer's happy hunting ground. Yesterday's experience in the Central Criminal Court, however, indicates that something remains to be done.'

Even the Irish Times ought to have learnt by now that Courts of law, or so-called law, in this country will never hold the respect of the body of the citizens so long as they are used as instruments for the punishment and persecution of men and women solely because they endeavour to voice and work for the secular aspirations of our nation for complete independence."

Judge's Insolence to Jurors.

There was nothing more scandalous in the Courts maintained in this country by the British Government than the Judges' insolence to jurors. The conduct of some of the Free State Judges is not less reprehensible. According to the daily Press, Judge O'Byrne the other day took a hand in this old game, and, addressing a jury who had found themselves unable to agree to a verdict, said:—

'They had acted in disregard of the oath they had taken, and in disregard of the law under which they lived, and in disregard of the rights and well-being of the citizens of the State.'

The report also states that he flung a similar insult at a second jury, on the very same day, from his privileged position on the Bench.

What legal or moral right has any Judge to animadvert on the conduct of jurors? The law declares that Judges are incompetent to decide certain questions, and entrusts such matters to the commonsense and impartiality of a jury. Judges, at least as much as other people, ought to observe the law and keep within their functions. One of the functions of a Judge is to write out for the jury the questions to be decided. Another is to tell the jury what the law is on those questions. It is not his function, and the law does not permit him, to decide himself any of the questions submitted to the jury.

The law does not permit the Judge to decide such questions because the Legislature knows that the public would not tolerate such a thing. The public and the Legislature have decided that the jury is more competent than the Judge in such matters, and that the jury alone shall have the decision. The law even refuses to give the Judge a vote on such questions. It does not permit him to enter the jurors' room to listen to their discussions or to influence their decision. All these prohibitions have been put on the Judge in the interests of justice.

The law protects the jurors in their room from the Judge's insolence, but it fails to protect them when they return into Court. A Judge of the High Court sitting on the Bench is privileged to say anything he likes, however irrelevant it may be to the case before him, and those whom he insults or defames have no right of action, either civil or criminal, against him.

Jurors ought to have the protection of the law whilst sitting in their box in Court as well as whilst in their private room. Their function in Court, as in the jury room, is a judicial function. They ought to be as independent in exercising their functions as the Judge is in exercising his. Jurors are not free, either in the jury box listening to the evidence, or in their private room discussing the merits of the case, as long as they are menaced with an accusation of perjury when they reappear in Court if the result of their deliberations does not coincide with the hints thrown out from the Bench. If the law required them to adopt the Judge's view, and gave them no right to form their own independent judgment, trial by jury would be a farce, and it would be a reproach to the law that citizens should be compelled, under the threat of heavy fines, to leave their homes and their business to take part in the farce.

Not long since it was decided by the Free State Courts that the money borrowed to establish and maintain the Irish Republic belonged of right to the Free State Government. Since that decision was given, Judge Peters, in the New York Supreme Court, has decided that the Free State Government has no more right to such money than has the Government of Sir James Craig at Belfast. Apparently the Free State Cabinet agree with the decision of Judge Peters, since they have not appealed against it. If it were stated in this paper that the Free State Judges who tried that case were actuated by a political motive, and "had acted in disregard of the oath they had taken and in disregard of the law under which they lived,"the editor would, no doubt, be indicted in the Central Criminal Court. To attribute an improper motive to a Judge, even when he is obviously wrong, is a criminal offence; but the character of jurors may be assailed with impunity from the Bench, although their judicial functions, in the administration of justice, are not less important than those of the Judge, and although the public have had much greater confidence in their impartiality.

FEAR DLIGHE."

On the motion coming on for hearing, a preliminary objection was submitted on behalf of the defendant that the Court had no jurisdiction to attach for contempt; that the hearing of the motion by the Court was the trial of a criminal charge, and that Art. 72 of the Constitution of the Irish Free State prohibited such a trial without a jury; and, further, that the application should have been made to the Judge at the Central Criminal Court...