Re Kennedy and McCann

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 07 July 1976
• Date: 07 July 1976
• Docket Number: [S.C. No. 142 of 1975]

Supreme Court

[S.C. No. 142 of 1975]

In re Kennedy and McCann

In the Matter of Thomas Joseph Kennedy and Eamonn McCann

Practice - Contempt - Attachment - Criminal contempt of court - Scandalising the court - Rules of the Superior Courts, 1962 (S.I. No. 72), Or. 44.

Attachment for Contempt.

On the 6th June, 1975, the High Court (Kenny J.) made an order in proceedings brought by a wife by special summons under the Guardianship of Infants Act, 1964, in which her husband was named as one of the defendants. The order directed that the sole custody of the two sons of the husband and wife be given to the husband. The wife appealed to the Supreme Court. The order of the 6th June, 1975, was the last of a series of custody orders which had been made since the commencement of the proceedings in 1971. All the custody applications had been heard in camera, and each parent had obtained custody of the two sons on some occasion.

On Sunday the 13th June, 1976, there appeared in the "Sunday World"a biased and inaccurate account of the guardianship proceedings. On the 21st June, 1976, the defendant husband applied ex parte to the Supreme Court and obtained an order giving him liberty to issue a notice of motion directed to Eamonn McCann and Joseph Kennedy and requiring them to attend before the court at 11 o'clock on the 25th June, 1976, for the purpose of showing cause why they should not be attached for the several contempts of court arising from the publication of the article described in the applicant's affidavit.

Eamonn McCann filed an affidavit, sworn on the 25th June, 1976, in which he described himself as a journalist by profession. In that affidavit he stated that he had not attended any of the hearings of the guardianship proceedings and was unaware that there was a prohibition on the disclosure of such proceedings, that he had prepared the article, and he apologised for his part in revealing particulars of the proceedings.

Thomas Joseph Kennedy also filed an affidavit which was sworn on the 25th June, 1976. In that affidavit he stated that he was the editor of the Sunday World, that he was unaware that there was a prohibition on the disclosure of such proceedings, and he apologised for his part in revealing particulars of the proceedings.

On the 25th June the Supreme Court considered the affidavits sworn on that day and adjourned the matter to the 2nd July to enable the deponents to consider their attitudes to the references to the courts also contained in the article.

McCann filed a further affidavit, sworn on the 1st July, in which he stated that he appreciated that the comments made by him in the article were unfair to the judges who had tried the guardianship proceedings from time to time, and in which he apologised to the court and withdrew all imputations concerning the judiciary. Kennedy also filed a further affidavit, sworn on the 1st July, in which he stated that he was then aware that the attitude taken and the orders made in the High Court and the Supreme Court in the guardianship proceedings were inaccurately and unfairly represented in the article, and in which he apologised unreservedly for having been responsible for the publication of such a commentary.

Article 40, s. 6, sub-s. 1, of the Constitution of Ireland, 1937, provides:

"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...