State (Commins) v McRann

• Jurisdiction: Ireland
• Judgment Date: 01 January 1977
• Date: 01 January 1977
• Docket Number: [1976 No. 64 SS]
• Court: High Court

High Court

[1976 No. 64 SS]

The State (Commins) v. McRann

The State (at the Prosecution of Donal Commins)

and

Michael J. McRann

Practice - Attachment - Contempt of court - Civil contempt - Disobedience to order of court - Punishment - Whether a criminal charge triable summarily - Rules of the Superior Courts, 1962 (S.I. No. 72), Or. 44 - Constitution of Ireland, 1937, Articles 34, 38.

Habeas Corpus.

On the 26th February, 1976, the prosecutor applied in the High Court (Finlay P.) and obtained an order pursuant to Article 40, s. 4, sub-s. 2, of the Constitution directing the governor of Limerick Prison (the respondent) to produce the body of the prosecutor and to certify in writing the grounds of his detention. The respondent certified that the prosecutor was being detained in custody pursuant to an order dated the 25th February of the Circuit Court (His Honour Judge S. MacD. Fawsitt). On the same occasion the prosecutor obtained a conditional order of certiorari to quash the order of the Circuit Court, unless cause were shown to the contrary.

Article 38, ss. 1, 2 and 5, of the Constitution of Ireland provides:—

"1. No person shall be tried on any criminal charge save in due course of law.

2. Minor offences may be tried by courts of summary jurisdiction.

5. Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury."

Article 30, s. 3, of the Constitution provides:—

"3. All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose."

Article 34, s. 1, of the Constitution provides:—

"1. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

Article 50, s. 1, of the Constitution provides:—

"1. Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

The prosecutor failed to obey an order of the Circuit Court given in a civil action in which the prosecutor was the defendant. On the application of the plaintiff, the Circuit Court judge committed the prosecutor to prison for contempt of court and directed that he should be detained in prison until he was discharged due course of law. Having been imprisoned, the prosecutor obtained in the High Court a conditional order of habeas corpus and it was served on the respondent prison governor, who showed cause. The prosecutor then applied for an order absolute, notwithstanding the cause shown. At the hearing of the application, the prosecutor contended that the determination by the Circuit Court judge of the contempt issue had been the trial of a "criminal charge" within the meaning of s. 5 of Article 38 of the Constitution of Ireland and that, as the punishment for the offence was imprisonment for an indefinite period, such contempt was not a minor offence within the meaning of s. 2 of that Article and, therefore, should have been tried by a jury as required by s. 5 of the Article.

Held by Finlay P., in allowing the cause shown and setting aside the conditional order, 1, even if it be assumed that the determination of the contempt issue involved the trial of a criminal charge to which s. 5 of Article 38 of the Constitution applied prima facie, the terms of Article 34 of the Constitution, stating that justice shall be administered in courts established by law and by judges appointed in accordance with the Constitution, constitute a qualification upon the provisions of Article 38 and authorise the Courts to adjudicate in a summary manner the issue of contempt of court and to impose sanctions in the event of disobedience to their orders.

The Attorney General v. O'Kelly [1928] I.R. 308; In re Earle[1938] I.R. 485 and The Attorney General v. Connolly[1947] I.R. 213 approved.

2. That in the case of civil contempt the reason for the imposition of a sentence of imprisonment is the coercion of the person found to be in contempt of the court and that, therefore, the sentence is necessarily one of indefinite duration.

Keegan v. de Burca [1973] I.R. 223 considered.

Cur. adv. vult.

Finlay P. 19th March, 1976

These are two applications—one for an enquiry under Article 40 of the Constitution and one for an order of certiorari and they were heard together before me. They arise from the following facts and circumstances. On the 12th July, 1974, the Circuit Court made an order in certain proceedings in which Mary Catherine Commins was plaintiff and Donal Commins (whom I will call the prosecutor) was defendant. The order, in effect, restrained the prosecutor from all acts of interference with the plaintiff in her user and enjoyment of certain lands in Tipperary. That order was duly served on the prosecutor and, apparently (though it is not relevant to the issues of law arising before me), it appears that he disobeyed it. On a motion for committal in the year 1975, he was sent to prison, but he was subsequently released on purging his contempt by giving certain undertakings to the court.

It was alleged that the prosecutor committed further acts of disobedience and the plaintiff in the Circuit Court action brought a further motion for committal which came on for hearing before His Honour Judge Fawsitt at Waterford on the 25th February, 1976. At that hearing the prosecutor was represented by senior and junior counsel and it was submitted on his behalf, as a preliminary objection to the hearing of the motion for committal, that the Circuit Court judge had no jurisdiction to deal with the application for committal summarily because the prosecutor was entitled to have the issue (as to whether or not he had been guilty of disobeying the order) tried by a judge and jury: the submission was based on the decision given by Mr. Justice Parke on the 9th December, 1975, in McEnroe v. Leonard. The learned Circuit Court judge refused to accept that submission and, thereupon, the prosecutor, through his counsel, withdrew from all further part in the motion for committal. The plaintiff in the action then adduced oral evidence of acts by the prosecutor constituting disobedience of the order; and the learned Circuit Court judge made an order adjudging the prosecutor to be guilty of contempt of the court, by refusing and neglecting to obey the order,

and committing him to Limerick jail for his contempt until he should be discharged by competent authority in due course and process of law.

On the following day (26th February, 1976) an application was made ex parte to me on behalf of the prosecutor for an enquiry under Article 40 of the Constitution and for a conditional order of certiorari. I granted both applications, and the prosecutor was admitted to bail. The matter then came on for hearing before me and was fully argued. The Governor of Limerick Prison showed cause against the conditional order made by me under Article 40 of the Constitution and the plaintiff in the civil proceedings showed cause, through her counsel, against the conditional order of certiorari; the learned Circuit Court judge did not show cause. Quite clearly if the prosecutor is entitled to an order of habeas corpus under Article 40 of the Constitution he is entitled to that because he is also entitled to have the order of the Circuit Court judge (committing the prosecutor to prison) quashed. Therefore, the prosecutor must either succeed or fail in both the applications before me.

The challenge to the order of the 25th February, 1976, was twofold in the argument brought before me. First, it was submitted that the contempt of court could not be described as a minor offence because the penalty imposed by the order was committal to prison for an indefinite time and that the proceedings by way of motion for committal were the trial of the prosecutor on a criminal charge, so that he was entitled to a trial by jury under Article 38, s. 5, of the Constitution. Secondly, on the assumption that this was a criminal offence and irrespective of the question as to the method by which the prosecutor must be tried and convicted of it, it was submitted that the Circuit Court had no jurisdiction to impose for the offence anything other than a fixed term of imprisonment and that, accordingly, an order directing that the prosecutor should be detained in prison until he was discharged by competent authority in due course and process of law was made without and outside the jurisdiction of the Circuit Court...