S (Ps) v S (Ja) & Independent Newspapers (Irl) Ltd & Rte

JurisdictionIreland
JudgeMr. Justice Budd
Judgment Date19 May 1995
Neutral Citation1998 WJSC-HC 2967
Docket Number493 sp/1993
CourtHigh Court
Date19 May 1995

1998 WJSC-HC 2967

THE HIGH COURT

493 sp/1993
S (PS) v. S (JA) & INDEPENDENT NEWSPAPERS (IRL) LTD & RTE
IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF
CUSTODY ORDERS ACT, 1991
AND IN THE MATTER OF K.A.S., AN INFANT
AND IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS)
ACT, 1961 SECTION 45(1) (c) AND/OR IN THE ALTERNATIVE SECTION
45(1) (b)

BETWEEN

P.S.S.
PLAINTIFF

AND

J.A.S. (OTHERWISE C)
DEFENDANT

AND

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED, VINCENT DOYLE AND JODY CORCORAN
FIRST NOTICE PARTIES

AND

RADIO TELEFIS EIREANN
SECOND NOTICE PARTY

AND

INDEPENDENT BROADCASTING CORPORATION LIMITED, RAYMOND MCDONALD (OTHERWISE RAYMOND STONE)
THIRD NOTICE PARTIES

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)(b)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)(c)

KENNEDY & MCCANN, IN RE 1976 IR 382

READ & HUGGONSON, IN RE 1742 2 ATK 469

AG V TIMES NEWSPAPERS 1974 AC 273

HIBERNIA NATIONAL REVIEW LTD, IN RE 1976 IR 389

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980

SCOTT V SCOTT 1913 AC 417

D V D 1903 P 144

CONSTITUTION ART 40.6.1

EUROPEAN CONVENTION ON RECOGNITION & ENFORCEMENT OF DECISIONS CONCERNING CUSTODY OF CHILDREN & ON RESTORATION OF CUSTODY OF CHILDREN

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S1(2)

R V GRAY 1900 2 QB 36

AMBARD V AG FOR TRINIDAD & TOBAGO 1900 2 QB 36

DPP V WALSH 1981 IR 412

CONSTITUTION ART 35.2

AG V O'KELLY 1928 IR 308

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 10(2)

DESMOND V GLACKIN 1992 ILRM 490

SOLICITOR GENERAL V RADIO AVON LTD 1978 1 NZLR 225

R V METROPOLITAN POLICE COMMISSIONER EX PARTE BLACKBURN 1968 2 AER 319

WEELAND V RTE 1987 IR 664

JOHNSON V GRANT 1923 SC 789

MCLEOD V ST AUBYN 1899 AC 549

TAYLOR V AG 1975 2 NZLR 675

AMBARD V AG 1936 AC 322

BORRIE & LOWE THE LAW OF CONTEMPT (1973) 383–384

R V NICHOLLS 1911 12 CLR 280

S V VAN NIEKERK 1970 3 SA 655

R V ODHAMS PRESS LTD 1957 1 QB 73

R V GRIFFITHS 1957 2 QB 192, 1957 2 AER 379

AG V BUTTERWORTH 1963 1 QB 696

R V NEW STATESMAN 1928 44 TLR 301

R V DUFFY EX PARTE NASH 1960 2 QB 188

WOOD V GEORGIA 370 US 375

F (A MINOR), IN RE 1977 1 AER 115

ADMINISTRATION OF JUSTICE ACT 1960 S12(1)(A) UK

ALLIANCE PERPETUAL BUILDING SOCIETY V BELRUM INVESTMENTS LTD 1957 1 AER 635

AG V CONNOLLY 1947 IR 213

AG V LEVELLER MAGAZINE 1979 AC 440

R V SOCIALIST WORKER PRINTERS & PUBLISHERS LTD EX PARTE AG 1975 QB 637

MODEL PENAL CODE S202(2)(c)

DPP V MURRAY 1977 IR 360

R V DOLAN 1907 2 IR 260

WILLIAM THOMAS SHIPPING CO LTD V THE CO 1930 2 CH 368

JONES, IN RE 1806 13 VES 237

ADMINISTRATION OF JUSTICE ACT 1960 S11 UK

ADMINISTRATION OF JUSTICE ACT 1960 S12 UK

Words & Phrases:

C

Subject Headings:

1

Judgment of Mr. Justice Budd delivered the 19th and 22nd days of May 1995.

2

By Notice of Motion dated 15th February, 1994 the Plaintiff sought an Order directing the Defendant, J.A.S., Vincent Doyle, the Editor of the Irish Independent Newspaper, and Jody Corcoran, a freelance journalist, to show cause why they should not be attached and committed to prison for their contempt of Court and, in the case of Independent Newspapers (Ireland) Limited, why its assets should not be sequestered arising out of the publication of an article entitled "Court hands daughter to U.S. husband" in the edition of the Irish Independent on Saturday, 12th February, 1994 and arising out of the further article entitled "Tug of Love Mum vows U.S. court battle" in the edition of the Irish Independent on 14th February, 1994, pursuant to Section 45(1)(c) and, in the alternative, 45(1)(b) of the Courts (Supplemental Provisions) Act, 1961. The Motion was grounded upon an Affidavit of the Plaintiff's Solicitor exhibiting the two newspaper articles and complaining that the first article was accompanied by a photograph of the Plaintiff, a photograph of the Defendant and one of their three year old daughter; he also complained that the article gave an inaccurate and biased account of the proceedings and gave details of the application which had been before the Court. He went on to say that on 12th February, 1994 he contacted the Notice Party, Jody Corcoran, and indicated that he was unhappy that this article had been reported; and that he was unhappy at the numerous inaccuracies in the report and he attempted to make clear the inaccuracies in the said report. Despite this, on 14th February, 1994 a further article "Tug of Love Mum vows U.S. court battle" appeared, written by Jody Corcoran, which included further references to this case. He also averred that the matter concerned a minor and was a family law matter and so was not to be reported because the proceedings took place "in camera".

3

The Articles were published in respect of the subject matter of "in camera" proceedings. The High Court had heard a case under the Child Abduction and Enforcement of Custody Orders Act, 1991on 8th and 9th February, 1994. The Court had sat, as usual in this State for the hearing of child abduction cases, "in camera"; it was perfectly obvious that the matter was being heard "in camera" because the Court was sitting in a Court room frequently designated for family law cases and, on the hearing days, the parties had entered through a door which was clearly marked with the words "in camera" and also "private".

4

The publication by the First Notice Parties was a breach of the law with regard to "in camera" proceedings and this was rightly conceded by Senior Counsel appearing for the First Notice Parties. However, a contest has arisen as to the ingredients of the offence of contempt of Court, formerly characterised as "scandalising the Court or a Judge". In less arcane terms, any act done or writing published calculated to bring a Court or a Judge of the Court in to contempt, or to lower the authority of the Court, can be contempt of Court. The right of free speech and the free expression of opinion are valued rights. Their preservation, however, depends on the observance of acceptable limits in that they must not be used to undermine public order or morality or the authority of the State. Judges in Court are, of course, open to criticism and, if reasonable argument or expostulation is offered against any judicial act as contrary to law or to the public good, no Court could or would treat that as contempt of Court. In In Re. Kennedy and McCann, 1976 I.R. 382 at p. 387, Chief Justice O"Higgins said:-

"The offence of contempt by scandalising the court is committed when, as here, a false publication is made which intentionally or recklessly imputes base or improper motives or conduct to the judge or judges in question. Here the publication bears on its face, if not an intent, at least the stamp of recklessness."

5

I propose to set out a chunk of the judgment which I delivered on 9th February, 1994 in dealing with the child abduction case and then also to set out the contents of both of these articles. While Counsel for all the parties have accepted that this is a case which should be dealt with by the Court in a summary manner, nevertheless, I intend to set out what I actually said in giving judgment so that this may be compared with the articles which were published by the newspaper and the journalist. My purpose in doing this is to make the inaccuracies in these articles evident. I am conscious that I must entirely subdue my own irritation and upset at being depicted as an amalgam between the Emperor Caligula and Judge Jeffreys conducting the Bloody Assizes. I shall take care to subdue my own resentment and concentrate on gauging whether there has been a serious misrepresentation of the proceedings in Court (which proceedings should not, of course, in an "in camera case", have been published in such a manner that the parties were identifiable).

6

I am mindful of the words of Lord Chancellor Hardwicke In re Read and Huggonson, [1742], 2 Atkinson 469 when he said:-

"Nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard".

7

His view was approved by members of the House of Lords in the Attorney General -v- Times Newspapers and also by Kenny J. in the matter of Hibernia National Review Limited, 1976 I.R. 389 at p. 391.

8

In the course of the judgment delivered on 9th February, 1994, I made it clear that I was not dealing with a custody case in this jurisdiction, but a child abduction case and that it had to be conceded by Counsel for the Defendant that she had unlawfully taken the child from California in defiance of the Order of the Californian Court; I held that the Court in California was the appropriate Court to deal with the differences between the parents in relation to where the child should live and have her upbringing. I stated that I took the view that it was in the child's best interest that she should stay in the home in which she had been living in an Irish town with her mother and maternal grandparents for the last eight months. I made it clear that, if this was a child from within this jurisdiction, then I would have no doubt whatever but that what was best for the child was that she should reside in her grandparents" home for the present but with generous access for the father, who would have to travel to see her. The Court rose on no less than two occasions after I had expressed what I thought was best for this child in order to afford the parties the time to see if a compromise could be reached. The judgment continued:-

"Having said all that, I have also no doubt whatsoever that the law under the Hague Convention is that the child must go back to California. If the...

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