The Supreme Court yesterday said legislation to clarify the offence of contempt of court is required and raised questions about the assumption that judges will not be influenced by prejudicial material published during trial and prior to sentence.
The court unanimously ruled that an Irish Times article about Dublin criminal Eamon Kelly - published after he was convicted on drugs charges but before he was sentenced - can be a contempt of court. But the issue of whether the article actually does constitute contempt will now have to be determined by the High Court, taking into account all the circumstances, some of which have not yet been established, Ms Justice Denham said.
In separate judgments, Ms Justice Denham and Mr Justice Keane noted the absence of legislation here on contempt of court. Ms Justice Denham said there was benefit in the legislature addressing such matters of policy "so important in a democratic society". Mr Justice Keane said Irish law on contempt was uncertain in many respects and required clarification in legislation.
While noting there were powerful guarantees of judges' independence and impartiality, Mr Justice Keane said judges "are also human" and the law could not proceed on the basis that they were incapable of being prejudiced in their views by material damaging to a particular litigant to which they had been unnecessarily exposed.
He stressed the sentence imposed on Kelly was upheld on appeal and remained the same even after a retrial and another appeal.
The Supreme Court was ruling on issues referred to it by the High Court for consideration arising out of an appeal by the author of the article complained of - journalist Paul O'Neill - and Mr Conor Brady, editor of The Irish Times, against a Circuit Criminal Court decision to fine them £5,000 for contempt of court over the article.
Eamon Kelly (50), of Furry Park Road, Dublin, was convicted on May 15th, 1993, of having some £500,000 worth of cocaine in his possession in September 1992 for supply. On May 27th, 1993, he was jailed for 14 years. A similar sentence was imposed after a retrial and Kelly remains in prison.
The article complained of was published in The Irish Times on May 17th, 1993, two days after Kelly was convicted but before he was sentenced. It was headlined: "Gardai believe Kelly was involved in other major crimes" and stated: "The garda spotlight has fallen on Kelly during investigations ranging from violent crime to fraud and drug smuggling . . ." It also stated Kelly "was closely associate for years with the leading figure in the most notorious criminal family on Dublin's northside . . ." Kelly described the article as "malicious and pernicious lies" and took contempt proceedings.
Mr O'Neill and Mr Brady responded that they considered themselves free to comment on what they believed to be a matter of public importance - the jury's decision and Kelly's previous court appearances and actions - once the matter had passed out of the hands of the jury and that they never intended to interfere in any way with the determination of the trial judge regarding the sentence to be imposed on Kelly.
The trial judge, then Judge Cyril Kelly, ruled that, as a matter of law, he was incorruptible but that the article was a contempt of court and fined the two men £5,000. They appealed to the High Court which referred two questions to the Supreme Court for determination.
These asked: "(a) Can it be a contempt of court to publish an article in the terms complained of after a criminal trial has passed from the seisin (control) of the jury and where the remainder of the hearing will take place before a judge sitting alone?
"(b) Given the constitutional right to freedom of expression of the press, could the publication of the article complained of ever constitute a contempt of court when published after conviction and before sentencing?"
In their judgments yesterday, Ms Justice Denham and Mr Justice Keane answered "Yes" to both questions. The Chief Justice, Mr Justice Hamilton, Mr Justice Barrington and Mr Justice Lynch also agreed both questions should be answered in the affirmative. Ms Justice Denham said contempt of court, an offence created by common law to protect the administration of justice, may exist where an article was published after conviction but before sentence because the process of the administration of justice was continuing. Any decision on an alleged contempt required a balance between the due administration of justice and freedom of expression. If there was a doubt, the balance should be tipped in favour of the administration of justice and the determination of a contempt of court. This did not preclude criticism of a decision, including sentencing, after sentence. A key factor was the proximity of the court process. The Irish Times article was in fact predisposing the reader to a negative view of Kelly during the course of the administration of justice.
An article mid-trial which is prejudicial to a person may have many effects, the judge said. In this case, the trial judge had determined he was incorruptible but an accused may feel the process was unfair and wonder if the article did have an effect. The concept that articles may be written pre-sentence to blacken a person could gain credence as a method of achieving a result and this raised the risk of prejudicing the administration of justice as a whole.
Ms Justice Denham said the decision whether the article was a contempt could be made only by the High Court judge having regard to all the circumstances of the case.
Mr Justice Keane said contempt of court occurs when a person publishes something calculated to interfere with the course of justice - it was not necessary that it results in such interference.
While The Irish Times article did not urge any particular sentence, it put into the public domain allegations about Kelly derived from "Garda sources" not adduced in evidence at the trial or admissible at the sentence hearing and which, if regard were had to them, could only be seriously damaging to Kelly. However, the trial judge would also be entitled to conclude the article was published in good faith as a matter of public interest without any intention of influencing the court.
This raised the question of whether the offence of criminal contempt was committed at all, given the absence of any guilty intention on the part of Mr O'Neill and Mr Brady. On any view, the circumstances of the case would clearly have called for the imposition of no more than a modest penalty and the respondents might have been found innocent of any contempt.
But the question asked of the Supreme Court was whether, in effect, the respondents must be acquitted of contempt solely because the jury had completed their consideration of the case. If the subjudice rule was of no relevance in a criminal trial before a judge or judges sitting alone, it must follow that such articles could be published without any form of criminal sanction in the case of a trial before the Special Criminal Court or the District Court, even before the court reached its verdict.
Mr Justice Keane said his conclusion to question one should not be modified in light of the constitutionally guaranteed right to freedom of expression of the press and he would also answer Yes to question two.
