The King v Peter Dolan and Others

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 30 January 1907
• Court: King's Bench Division (Ireland)
• Date: 30 January 1907

The King

and

Peter Dolan And Others (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.

1907.

Contempt of Court — Criminal prosecution — Disagreement of jury — Pending proceeding — Comment in public speech — Newspaper report — Absence of danger of prejudicial interference with future trial — Costs.

Held, by the Court (Lord O'Brien, L.C.J., and Madden and Kenny, JJ.; Palles, C.B., diss.), that, as nothing that was said or done was really calculated to prejudice the fair trial of the accused, the application should be refused, but without costs, as a reference had been made to a trial which was still pending.

Per Lord O'Brien, L.C.J.: The action of the Attorney-General should not be the ground of the decision of the Court, but ought to suggest very great caution in dealing with the matter.

Per Palles, C.B.: While concurring with the majority of the Court as to the representatives of the Press, the contempt by L. required the imposition of a substantial pecuniary penalty.

Motion on notice (1) for a writ or writs of attachment for contempt of Court against the Right Hon. Walter Long, M.P., W. A. Locker, editor, and A. A. Hall, secretary of the Irish Times, and the Right Hon. Lord Ardilaun, proprietor, and John Y. M'Peake, editor of the Dublin Daily Express.

The facts of the case were summarised in the earlier part of the judgment of Kenny, J., as follows:—

“This is an application to the Court for the exercise of the summary jurisdiction it possesses in cases of contempt—the particular contempt alleged being the making and publishing of comments prejudicial to the accused in a pending criminal trial. The applicants are Peter Dolan and seven other persons who have been returned for trial on charges of riot and unlawful assembly in the county of Leitrim. The principal person against whom this application is directed is Mr. Walter Long, M.P., a gentleman who has filled several high offices of State, including that of Secretary for Ireland. The other individuals sought to be made amenable to this summary jurisdiction are the representatives of two leading Dublin journals, viz., the Irish Times and the Daily Express. The circumstances which give rise to the present application are these. The applicants were tried on the charges which I have mentioned at the Connaught Winter Assizes at Sligo on the 5th December, 1906, before Mr. Justice Gibson. The jury disagreed and were discharged, and the trial of the prisoners was adjourned to the next assizes for the county of Leitrim. A report of that trial appeared in the Dublin newspapers of the 6th December, but I do not propose to refer to that report, or to the circumstances that gave rise to the charges against the prisoners. On the evening of the 7th December a meeting of a political character was held in the rooms of the Rotunda in this city, which was attended by Mr. Long and other prominent gentlemen, who apparently shared his views on Irish political questions. On that occasion Mr. Long made a speech which was reported at considerable length the next morning

in the Irish Times and Daily Express, and which contained the matter in respect of which he and the representatives of these journals are now sought to be made responsible. The reports in the two newspapers seem to be identical as to the language used by Mr. Long, and it is admitted by his counsel that they accurately represent what he said. It would appear from these reports that a large portion of the speech consisted of a hostile criticism upon the Parliamentary attitude of Mr. Bryce, the then Chief Secretary for Ireland, in connexion with his replies to questions addressed to him in the House of Commons on the subject of the alleged boycotting of people named Brady, in the county of Leitrim. The charges against the applicants arose out of acts stated to have been done in furtherance of the boycotting. Mr. Long, in his speech, called the attention of his audience to the matters stated in the address of counsel for the Crown at the trial, and argued that if the Chief Secretary had known what was happening at the time, his attitude in the House of Commons would have been different. The speech throughout assumed the accuracy of the statements of the Crown counsel, and contrasted those statements with the answers given by Mr. Bryce in the House of Commons. Mr. Long then proceeded as follows—and this is the part of his speech on which so much emphasis has been laid, and which, it is contended, is calculated to prejudice the traversers at a future trial. The report, I may say, purports not alone to give the speaker's words, but, by interpolating expressions of assent on the part of the audience, to describe the effects of the speech on them:—

‘Who were the Bradys? Were they landlords—great owners of property? Were they merely Protestant people, who disagreed with the majority in the neighbourhood in their religious views? There was no allegation of either of these crimes against them. They were people who, by some process of reasoning difficult to understand, came under the ban of the local branch of the United Irish League (boohs). The Bradys sent their two sons—one of them a lad of sixteen—miles off to get provisions. They got provisions, and started on their homeward journey in a donkey-cart. What did they find, according to counsel's statement? When they got to Dromahaire, they were met by 300 or 400 people, who waved their sticks and called on the police to turn back the Bradys or they would be murdered. The police, being a small body of men, protected the Bradys to the best of their ability, and took them to the police barrack. But they lost all they had gone to town to secure, and the police were roughly treated. The Judge, in summing up, commented on the awful state of things presented in the fact that these people were told that if they passed through the crowd they would be murdered (hear, hear). The result of this trial was that the jury dis-agreed (ironical cheers). Here, in Dublin, they could laugh at that;but he said deliberately, it was no laughing matter (hear, hear). Here they knew what it was to live under the British flag and the protection of British law. Could they wonder that such a verdict could be given when it was known how an offence of that kind could be described in the House of Commons by the responsible Minister of the Crown?’

“That speech having been made on the 7th of December, an application was, on the 20th December, 1906, made ex parte to this Division by counsel on behalf of the present applicants for a conditional order for an attachment against the same parties who are now before us, grounded upon an affidavit similar to that on which the present motion is based. The application was not granted, as the Court considered that the more proper course was to serve notice of motion, which was accordingly at once done. In the meantime—and this is a matter of the utmost importance in this case—a question was addressed in the House of Commons to the Attorney-General for Ireland upon the subject of the speech, in reply to which the Attorney-General stated that he did not consider the language used would have any effect upon the jurors of the county of Leitrim, and that he did not propose to take any action. That this question was asked and this answer given in the House of Commons has been admitted by counsel on both sides, and the Attorney-General's words have been most strongly relied on, as showing that no real prejudice was excited against the applicants by Mr. Long's speech. The Attorney-General's reply is one of supreme moment, when it is remembered that the present motion has been instituted, not by him, but by the traversers, and that he has taken no action whatever in connexion with the speech.

“The application to us is supported by an affidavit made by all the accused persons, in which they say that the two newspapers circulate largely in the county of Leitrim amongst the jurors who will constitute the panel from which the jurors to try them will be drawn; that they believe the speech was intended and calculated to influence the jurors to find a verdict against them, and to disparage and condemn the jury who had already disagreed; and they further say that Mr. Long's great position as former Chief Secretary for Ireland, and Member of Parliament for the country of Dublin, adds additional weight to his words.

“To oppose the motion Mr. Long and the representatives of the newspapers have made affidavits. The position which Mr. Long, in his affidavit, takes up is this—He says his speech was a political one; that his only object was to develop his complaint that the Chief Secretary was in the habit, owing to inaccurate or incomplete information, of minimising acts of intimidation notoriously rife in certain parts of Ireland; that the whole point he was endeavouring to make was, to show that the action of the jury was neither surprising nor unreasonable, having regard to the way in which occurrences of the kind were thus minimised in the House of Commons; that neither directly nor indirectly did he refer to any of the traversers, nor suggest that evidence had been given tending to establish their guilt; and that he had no intention, by anything he said in his speech, to influence the jurors, or to condemn or disparage the action of the former jury, or to convey that the charges against the traversers were true or to assume or suggest their guilt. But I consider the most important statement contained in the affidavit to be this—that at the time he made the speech he had not even present to his mind the possibility of the case being tried again, and that he honestly believed he was entitled to refer to the statements made in open Court at the trial in the address of the Crown counsel and by the presiding Judge, as reported in the...