Walsh v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 31 May 2019
• Neutral Citation: [2019] IESC 15
• Docket Number: [Supreme Court Record No. 68/2017],[S.C. No. 68 of 2017]
• Court: Supreme Court
• Date: 25 February 2019

Between/

David Walsh

Appellant

-and-

The Minister for Justice and Equality, the Director of Public Prosecutions, the Courts Service, Judge Alice Doyle

and

the Governor of Cork Prison

Respondents

[2019] IESC 15

O'Donnell Donal J.

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Finlay Geoghegan J.

[Supreme Court Record No. 68/2017]

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Contempt of court – Fair procedures – Injustice – Appellant seeking to appeal to the Supreme Court – Whether the proceedings in the Circuit Court were in accordance with fair and appropriate procedures

Facts: The appellant, Mr Walsh, at a hearing at the Circuit Court in Waterford on 31 May 2016, was convicted of contempt of court and sentenced to two weeks’ imprisonment. On 2 June 2016, a third party, Mr Beades, sought an inquiry under Article 40.4 of the Constitution on Mr Walsh’s behalf. An order for an inquiry was made. An order for the production of the digital audio recording (D.A.R.) of the hearing in the Circuit Court was then made. The inquiry proceeded before the High Court on 3 June 2016, following which an order directing that the appellant be released from custody was made. A written judgment was delivered on 13 June 2016. The essential ground of the High Court’s judgment was that, while the judge considered that the appellant was undoubtedly guilty of contempt of court, the contempt was of a “common or garden” variety that could have been dealt with by less drastic methods, such as an order of exclusion from the courtroom; the imposition of a term of imprisonment was therefore disproportionate, and the detention accordingly unlawful. The order of the High Court was reversed by the Court of Appeal in a judgment delivered on 25 March 2017. It was confirmed that the court had listened to the D.A.R., and had concluded that, in all the circumstances, the Circuit Court judge’s order was reasonable, proportionate and lawful. Accordingly, the Court of Appeal directed that the appellant be taken into custody to serve the 14-day sentence imposed upon him with credit for the period already served, but also stayed the order for seven days to allow the appellant to attend before the Circuit Court judge to purge his contempt. The appellant took no steps to do so, and therefore on 30 March 2017 the Court of Appeal directed that the warrant should issue. On 5 May 2017, the Supreme Court granted leave to appeal on the sole issue of whether the proceedings in the Circuit Court on 31 May 2016 were in accordance with fair and appropriate procedures before the appellant was found in contempt of court. The court made it clear that it was not suggesting that there had been any breach of fair procedures, but rather that it was appropriate that the matter be the subject of further consideration.

Held by the Court that, in all the circumstances, it was satisfied that fair procedures were complied with and that no injustice was done to the appellant.

The Court held that it would dismiss the appeal.

Appeal dismissed.

Judgment of O'Donnell J. delivered the 25th day of February 2019

Introduction

1 At a hearing at the Circuit Court in Waterford on 31 May 2016, the appellant, David Walsh, was convicted of contempt of court and sentenced to two weeks” imprisonment. On 2 June 2016, a third party, Mr. Beades, sought an inquiry under Article 40.4 of the Constitution on Mr. Walsh's behalf. Barrett J. made an order for an inquiry. Unusually, and in the light of the circumstances, Noonan J. then made an order for the production of the digital audio recording (‘D.A.R.’) of the hearing in the Circuit Court. The inquiry proceeded before the High Court (Humphreys J.) on 3 June 2016, following which he made an order directing that the appellant be released from custody. A written judgment ( [2016] IEHC 323) was delivered on 13 June 2016. The essential ground of the High Court's judgment was that, while the learned judge considered that the appellant was undoubtedly guilty of contempt of court, the contempt was of a ‘common or garden’ variety that could have been dealt with by less drastic methods, such as an order of exclusion from the courtroom. The imposition of a term of imprisonment was therefore disproportionate, and the detention accordingly unlawful.

2 The order of the High Court was reversed by the Court of Appeal in a judgment delivered on 25 March 2017 ( [2017] IECA 106). Mahon J. (with whom Birmingham and Edwards JJ. agreed) confirmed that the court had listened to the D.A.R., and had concluded that, in all the circumstances, the Circuit Court judge's order was reasonable, proportionate and lawful. Accordingly, the Court of Appeal directed that the appellant be taken into custody to serve the 14-day sentence imposed upon him with credit for the period already served, but also stayed the order for seven days to allow the appellant to attend before the Circuit Court judge to purge his contempt. It appears the appellant took no steps to do so, and therefore on 30 March 2017 the Court of Appeal directed that the warrant should issue. On 5 May 2017, this court granted leave to appeal on the sole issue of whether the proceedings in the Circuit Court on 31 May 2016 were in accordance with fair and appropriate procedures before the appellant was found in contempt of court ( [2017] IESCDET 53). The court made it clear that it was not suggesting that there had been any breach of fair procedures, but rather that it was appropriate that the matter be the subject of further consideration.

3 Before addressing the factual and legal issues in this case, it is, I think, necessary to make some observations on the procedure adopted, in order to establish the focus for the legal issues. These proceedings come before the Superior Courts as an inquiry under Article 40.4 of the Constitution, grounded, moreover, on an affidavit of a third party, Mr. Beades, who was not present in court on the day in question and accordingly cannot offer any evidence in relation to what occurred. It is not suggested that he has any prior connection with the case, or knowledge of the underlying circumstances. While the appellant in this case was undoubtedly in custody at the time of the application, I nevertheless have some doubts as to the appropriateness of Article 40 as a vehicle for addressing the appellant's complaints (or at least the complaint upon which he appears to have succeeded in the High Court relating to the proportionality of his sentence), particularly when they are based on an evidential foundation that is necessarily unsatisfactory. An appeal would have provided an opportunity for a full review of the matter, including the sentence imposed, where, moreover, in order to succeed, the individual would merely have had to show the sentence was excessive, rather than attempt to discharge the considerable burden of showing that it was so disproportionate as to render the detention unlawful.

4 Here, the court has available to it both the transcript of the proceedings in the Circuit Court on 31 May 2016 and a copy of the D.A.R. Furthermore, solicitor and counsel appeared for the appellant pursuant to the ad hoc voluntary scheme established by the Bar Council and Law Society for representation in the Supreme Court and who made helpful submissions. The case was also heard in conjunction with another appeal concerning the law of contempt ( Tracey v. McCarthy, Supreme Court Record No. 135/2016) in which the Irish Human Rights and Equality Commission (‘IHREC’) made submissions, which, it was agreed, could also be considered for the purposes of this case. These developments are welcome. They mitigate somewhat the difficulties created by the limited (and indirect) evidential record, and have allowed the court to address the important issues raised against a more detailed and comprehensive background than might have been the case. Finally, the determination, in granting leave to appeal in this case and in Tracey makes it clear that the focus of the appeal is not the proportionality of the order of committal, but rather the fairness of the procedures which preceded it, which is properly a matter capable of being raised on an application under Article 40. However, it remains an important point that an application for an inquiry under Article 40 should not be treated as a form of appeal from an order of committal for contempt.

5 The species of contempt of court of which the appellant was found guilty was contempt in the face of the court (in the Latin phrase, contempt in facie curiae): that is, contempt occurring in the court room itself or in its precincts and disrupting the court proceedings. Accordingly, it is apparent that this case does not involve consideration of the well-established law relating to civil contempt. The old-fashioned term, the Latin tag, and the fact that much of contempt in facie curiae involves disruptive behaviour, can lead to suggestions that punishment for criminal contempt in such circumstances is an excessively authoritarian and pompous response to behaviour which is encountered in everyday life in public meetings, university lectures, and even schoolrooms, where the requirement to maintain order does not usually give rise to the possibility of an immediate committal to prison. This, however, is in my view the wrong starting point for understanding the law of criminal contempt as it applies in this context, and runs the risk of leading to the wrong conclusion.

6 No-one, not even a wholly successful party vindicated by the outcome of proceedings, can pretend that going to court is an enjoyable experience. Apart from the stress and anxiety involved in having the merits of a person's actions, conduct and behaviour debated, sometimes challenged, and adjudicated upon, the courtroom also imposes certain requirements of tolerance on all participants which they can find extremely difficult....