The King (Attorney-General) v The Company "Freeman's Journal Ltd The Same v M'Sweeny

• Jurisdiction: Ireland
• Judgment Date: 01 May 1901
• Date: 01 May 1901
• Court: King's Bench Division (Ireland)

The King (Attorney-General)

and

The Company “Freeman’s Journal (Limited),” and William Braydon, Editor of the “Freeman's Journal and National press” Newspaper

In the Cause of the King (Attorney-General)

and

Patrick A. M'Hugh.

The Same

and

M'Sweeny, Editor of the “Evening Telegraph” Newspaper (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1902.

Libel—Contempt of Court—Pending proceeding.

Where the trial of a prosecution for seditious libel had been held, but the jury had disagreed, and it was intended (though not formally stated) that a new jury would be empannelled:—

Held, that the proceeding was still a “pending “one, and that it was a contempt of Court for a journal to criticise the proceeding.

An application for alleged contempt of Court committed by an incorporated company should be by motion, not for attachment, but to attend and answer in respect of such contempt.

Motion for attachment for contempt of Court.

Mr. P. M'Hugh had been prosecuted at the information of the Attorney-General for Ireland, for seditious libels upon the administration of justice, and upon the jury by whom two men, Muffeny and Maguire, had been tried and convicted at the Sligo Winter Assizes, 1899, The circumstances under which the prosecution arose are more fully given in the report of the argument on demurrer to certain of the pleas filed by the defendant in answer to the information: [1901] 2 I. R. 569. M'Hugh was tried before the Right Hon. Lord O'Brien, L.C. J., and a jury of the county of Dublin, on the 9th February, 1901. The jury disagreed, and were discharged at a late hour on Saturday evening, the 9th February (2). On the 11th February (Monday), there appeared

in the Freeman's Journal newspaper, and in the Evening Telegraph newspaper, articles entitled “jury packing,” stigmatizing the prosecution of M'Hugh as “preposterous,” and (in effect) misrepresenting the issue to be tried in the case. The articles complained of also contained reflections upon the Judge presiding at the trial (the Lord Chief Justice); but, in moving for the conditional order, the Attorney-General stated that he did not seek to ground it on any reflections made in the incriminated articles upon the action of the presiding Judge, as, no doubt, his Lordship would consider it beneath his dignity to notice such a matter. On the present motion, O’Shaughnessy, K. C. (for the Freeman's Journal Company), stated at the outset of the argument that he would deal exclusively with the grounds upon which the conditional order had been sought for and obtained, and declined throughout to refer to any of the reflections that had been made on the presiding Judge. Counsel for the editors (Bodkin, K.C.) declined at first to adopt this course, and stated that he deemed it expedient to refer to the article as a whole, including those passages which related to the action of the presiding Judge. Ultimately, however, counsel for the editors abandoned this line of discussion.

The Attorney-General (the Right Hon. John Atkinson, K.C.), The Solicitor-General (Wright, K. C.), and Morphy, for the Crown, submitted that the case was clearly one of contempt; that the disagreement of the jury did not terminate the proceedings; that they were still pending; and that everyone was bound, even without any formal notice, to accept that the case would be tried again before another jury.

O'Shaughnessy, K.C., O'Brien, K.C., and Muldoon, for the Freeman's Journal Company, submitted that the trial was not pending; that the affidavit showed that it was bona fide believed that the case had terminated; and that, as the company had given explicit orders to their editors and staff not to comment on pending cases, there was either no contempt on the part of the Company, or at least no intentional contempt or disrespect on their part.

Bodkin, K.C., for the editors of the two journals.

[The cases cited in argument are fully referred to in the judgments of the Court.]

Cur. adv. vult.

The Attorney-General (the Right Hon. John Atkinson, K.C.), The Solicitor-General (Wright, K. C.), and Morphy, for the Crown, submitted that the case was clearly one of contempt; that the disagreement of the jury did not terminate the proceedings; that they were still pending; and that everyone was bound, even without any formal notice, to accept that the case would be tried again before another jury.

O'Shaughnessy, K.C., O'Brien, K.C., and Muldoon, for the Freeman's Journal Company, submitted that the trial was not pending; that the affidavit showed that it was bona fide believed that the case had terminated; and that, as the company had given explicit orders to their editors and staff not to comment on pending cases, there was either no contempt on the part of the Company, or at least no intentional contempt or disrespect on their part.

Bodkin, K.C., for the editors of the two journals.

Lord O'Brien, L.C J.:—

When the argument in this matter concluded yesterday the Court had arrived at an unanimous conclusion as to the course we should pursue; but, as questions of importance were involved, we thought it better to commit our reasons to writing, and accordingly reserved judgment until this morning. The application with which we have to deal was one by the Attorney-General to attach for contempt of Court the Freeman's Journal company, and the editors of that paper, and of the Evening Telegraph, for the publication of certain articles in these papers commenting upon the trial of Mr. M'Hugh.

It is, I think, expedient, before I state the effect of the impugned articles, to refer to the principles which guide our Courts when dealing with what is called “contempt of Court.” Lord Blackburn has clearly explained what it means:—

“The phrase contempt of Court” (says that distinguished Judge) “often misleads persons not lawyers, and causes them to misapprehend its meaning, and to suppose that a proceeding for contempt of Court amounts to some process of vindicating the personal dignity of the Judges and protecting them from personal insults as individuals. Very often it happens that contempt is committed by a personal attack upon a Judge or an insult offered to him, but as far as their dignity as individuals is concerned it is of very subordinate importance compared with the vindication of the dignity of the Court itself; and there would be scarcely a case in which any Judge would consider that, so far as his personal dignity goes, it would be worth while to take any steps; but there is another and much more important purpose for which proceedings for contempt of Court become necessary. When a case is pending, whether it be civil or criminal, in a Court, it ought to be tried, in the ordinary course of justice, fairly and impartially. When an action is pending in the Court, and anything...