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De Rossa v. Independent Newspapers Ltd. [1998] IEHC 60; [1998] 2 ILRM 293 (3rd April, 1998)
THE
HIGH COURT
1993
No. 5775 P
BETWEEN
PROINSIAS
DE ROSSA
PLAINTIFF
AND
INDEPENDENT
NEWSPAPERS LIMITED
DEFENDANT
Judgment
delivered this 3rd day of April 1998 by Mr. Justice Kinlen
This
Court is presently concerned with a specific but important point.
1. This
application arises out of the alleged conduct of the Defendant in and about a
libel action taken by the Plaintiff against the Defendant. The hearing of the
libel action proceeded before the Honourable Mr. Justice McCracken and a jury
on the 5th November, 1996 and lasted for nine days. The facts are set out by
Ms. Eimear McKenna, the solicitor appearing for the Plaintiff in an affidavit
sworn on the 29th November, 1996. In that Affidavit she states:-
"4.
At an early time in the proceedings the Defendant accepted that Mr. de Rossa
had not signed a letter dated the 15th day of September, 1986 and allegedly
sent by the Workers Party to the Central Committee of the Communist Party of
the Soviet Union. However, the attitude taken by Counsel for the Defendant on
this point was not consistent. In particular, on the fourth day of the hearing
there was a significant exchange in front of the jury concerning the
questioning of the Plaintiff by Counsel for the Defendant...... At question
241, Counsel for the Defendant described the letter in question as 'a letter
that you wrote'. This was withdrawn and it was then described as a letter
'which you are alleged to have written and signed'. After further objection
Counsel for the Defendant described it as 'a letter that bears your name
whether it is your signature or not is a matter in issue'. Of course at this
stage of the trial the Defendant had withdrawn any suggestion that the letter
was signed by Mr. de Rossa and there was no allegation before the Court that
Mr. de Rossa had signed the letter."
"5.
This manner of conduct of the case was clearly a matter of concern to the
Plaintiff and his legal advisers. Notwithstanding this, it was made clear on a
number of occasions by Counsel for the Plaintiff that given the Plaintiff's
unusual situation he could not afford discharge of the jury."
"6.
I shall turn now to the coverage of the libel action by the Defendant. As
early as the third day of the hearing, Mr. Justice McCracken (as a result of an
error in reporting by RTE) made the following statement:-
'I
am sure the Press will take great care that reporting is accurate because words
are very important. Individual words are very important, but obviously
mistakes can be made. So long as they are remedied immediately they probably
do not do any harm.'"
"7.
The Defendant published "The Sunday Independent" on Sunday, 10th
November......." (with several relevant articles).
"8.
The following Friday these articles were brought to the attention of the
Honourable Court, Mr. Justice McCracken by Counsel for the Plaintiff.
She
then refers to the transcript and to the exchange between Counsel for the
Plaintiff and the trial judge. She states that Mr. Aengus Fanning, Editor of
the Sunday Independent, was in Court throughout and therefore presumably would
have heard the comments of the Judge which were as follows:-
'I
do not think, by the way, this only applies to the Defendant's newspaper. I
think that it is a general comment which he applied to all newspapers. They
certainly can report what happened in Court, but comments should be restricted
at this stage because of the fact that the jury are going to read newspapers
and that they must decide the case of what they hear in Court and not on the
opinion of journalists, however, noteworthy that opinion might be or however,
noteworthy, the journalist might be. It is very unfair on the jury to ask them
to split their minds and concentrate on what was said when particularly the
Sunday Papers should entertain comments which I know none of the journalists, I
am quite sure, would make any comment on anything said outside the hearing of
the jury but even comment as opposed to fact, I think should be avoided if at
all possible. I think most journalists know the line.'
2. There
were three articles in the Sunday Independent on the 10th November, 1996. Two
of them were by Gene Kerrigan and the third one by Jonathan Philbin Bowman."
"9.
On Sunday, the 17th November, 1996, the Defendant published a number of
articles concerning the action. In Ms. McKenna's Affidavit, there is only one
article in relation to this matter. It is an article by Gene Kerrigan
published in the Sunday Independent of the 17th November, 1986. The matter
came before Mr. Justice McCracken on the seventh day of the trial. Mr.
Hardiman who is acting for the Plaintiff stated just after 4 p.m:-
'There
is something I would like to mention. Last weekend there was very considerable
publicity in the Defendant's newspaper. I am afraid we innocently thought last
Sunday the case might be over by this weekend. That was a very serious
misapprehension and publicity in regard to 'drug dealing', 'prostitution',
'bank robbery', 'adultery', 'anything as long as is actionable'. 'See you in
Court but please hurry, there are only 43 days to Christmas' and 'I could use
the cash' - things of this sort - 'how I long to be libelled, just a small one
would do' - plainly, a newspaper can say whatever they like once the case is
over but this is a crude attempt to influence the jury - lest it should be
unfortunately necessary to approach it in another way after the weekend.'
3. The
Judge then stated what I have already recited.
"10.
On the next day of the hearing of the libel action (Tuesday, 19th November)
the jury was discharged on application by the Plaintiff. While I understand
that the transcript to this application is available to this honourable Court I
believe it is important to point out that Counsel for the Plaintiff indicated
terms in which the matter could be dealt with without the discharge to the
jury. These terms were not acceptable to the Defendant. Instead the Defendant
instructed its Counsel to state that it 'stood over' Mr. Kerrigan's article.
The following day Mr. Kerrigan was introduced in evidence by the Defendant in
circumstances where the learned trial judge had made it quite clear that he
would place no obligation on Mr. Kerrigan to give evidence. Mr. Kerrigan was
cross examined by Counsel for the Plaintiff and on the afternoon of Wednesday,
the 20th November, the learned trial judge made his order as to costs in this
matter."
"11.
On Sunday, 24th November, 1996 the Defendant published in the Sunday
Independent three articles concerning the case before Mr. Justice
McCracken.......... I believe and am advised that the effects of the articles
both in their specific terms and taken as a whole is to attempt to prejudice
the Plaintiff's position as a litigant against the Defendant. In particular, I
believe and am advised with the effect and intention of these articles appears
to be to give the impression that a dishonest and unjustified application was
made to discharge the jury in circumstances where the impression was given that
the Plaintiff's case was not running well. There is a clear implication in one
of the articles that the Plaintiff will not in fact resume his action against
the Defendant and this could clearly have the effect of leading persons who may
be jurors at that trial to believe the Plaintiff is only re-entering the matter
reluctantly and with little hope of success. In addition it is contended that
the decision of the Honourable Mr. Justice McCracken is incorrect. I also
believe that there is an attempt to intimidate Counsel from acting on behalf of
Mr. de Rossa by virtue of the factually inaccurate and deliberately abusive
nature of the article written about one of the Plaintiff's Counsel."
4. The
articles published on the 24th November, 1996 in the Sunday Independent were
written respectively by Eamon Dunphy, Gene Kerrigan and Stephen Dodd.
5. The
afforegoing Affidavit was the basis for a notice of motion dated the 29th
November, 1996, making application to the Court on the 9th December, 1996.
6. On
Friday, 29th November, 1996 Mr. Justice Carney ordered that an Order of
Sequestration directed to Independent Newspapers Plc. do issue because of its
contempt of this Court committed by publishing to the public in the issue of
the Sunday Independent of the 24th day of November, 1996 the articles exhibited
in Exhibit EMcK3 in the said Affidavit of Eimear McKenna. By said order Mr.
Justice Carney proceeds:-
"Unless
cause be shown to the contrary before the Court on Monday 9th December, 1996.
This order be served on the Defendant by telephone and facsimile transmission
this day and by service of this Order on the defendant not later than Monday
the 2nd day of December."
8. On
the 12th December, 1996 the matter came before Mr. Justice Barron and the
appropriate proportion of the order reads as follows:-
"By
consent, it is ordered that the Defendant, his servants or agents be restrained
pending the trial of his action from publishing in the Irish Independent, the
Sunday Independent or the Evening Herald newspapers any matter:
(i)
calculated
or liable to prejudice the jury in its hearing of and its deliberations on
these proceedings;
(ii) constituting
a wrongful interference with the Plaintiff's constitutional rights in the
conduct of his claim herein; and
(iii) discussing
the probable evidence of any party or parties to these proceedings.
AND
IT IS ORDERED that the outstanding claims on this motion do stand adjourned for
the next list to fix dates (Chancery 1) the Court doth reserve the question of
costs."
9. The
relevant notice of motion requests the three items which are on the Consent
Order and also an order for the sequestration of such of the assets of the said
Independent Newspapers Limited as may lie within the jurisdiction of this
Honourable Court.
10. Finally,
"such further or other reliefs as to this Honourable Court shall seem just and
meet", Lord Keeper Northington described this plea as the most powerful
petition after the 'Our Father'.
11. The
matter finally came into the Court last week. The Defendant insists that since
this was an allegation of a serious criminal contempt, it has the right to
trial by jury. And that is the only issue before this Court. During the
debate in this Court matters such as the right of independent journalists to
defend themselves from what they saw was inaccurate presentation of their views
by Counsel involved in the trial and that they had the right to defend their
own names. However, these may be issues to be determined by the trial, I am
only concerned with whether or not this matter comes before a jury. It was
also argued that the appropriate person to process this matter would be the
D.P.P., rather than Mr. de Rossa. However, that point seems adequately covered
by the decision of
The
State (at the prosecution of Donal Commins) -v- Michael J. McRann
1977 I.R. p.78 which considered many of the decisions cited to this court.
Finlay P. (as he then was) states at p.87:-
"Therefore,
even prior to the enactment of the Constitution of Ireland in 1937, the
position would appear to have been that on the provisions of the Constitution
of 1922 (in which I can find no significant distinction from the comparable
provisions of the Constitution of 1937) the High Court subsequently confirmed
by the Supreme Court had decided that the jurisdiction of the Court of Record
at least to proceed in a summary manner to deal with all forms of contempt of
court had survived the enactments of the Constitution of 1922.
The
matter came again before the High Court in the
Attorney
General -v- Connolly
(1947) I.R. 213. That was an application by the Attorney General to commit for
contempt the writer of an article alleged to have scandalised the Special
Criminal Court. It was heard by the divisional court of the High Court
consisting of Gavan Duffy P., and MacGuire and Davitt J.J. In a judgment of
the Court which was delivered by Gavan Duffy P., the decision and the reasoning
behind
The
Attorney General -v- O'Kelly
(1928) I.R. 308 (as applicable to the Constitution of 1937) was clearly and
unequivocally confirmed.
I
find the decisions in these two cases and the views expressed by the Supreme
Court
In
Re. Earle
(1938) I.R. 485 extremely persuasive precedents; but I am further satisfied
that there is an additional reason why it should be quite incorrect to
interpret Article 38 of the Constitution of 1937 as depriving the Courts of the
long established jurisdiction (which they undoubtedly had) to punish in a
summary manner contempt of court whether the contempt was committed in the face
of or outside the court and whether it is classified as criminal or as civil
contempt.
The
rights of a person to be tried on a criminal charge is provided by Article 38,
S.5 of the Constitution of 1937 or guaranteed in terms which are, for all
practicable purposes, identical to the terms of Article 30 of the Constitution.
If the contention made on behalf of the prosecution were correct then, on the
present state of the law it seems to me that, in the event of a court order
having been disobeyed or in the event of a court suffering contempt in its face
(for in this context I cannot distinguish between civil and criminal contempt
nor between contempt in the face of and outside the court). Such courts must
rely on the intervention of the Attorney General (or of the Director of Public
Prosecutions) to present an indictment and try before a jury the person who is
alleged to be guilty of such contempt. If that interpretation of the
provisions of Article 30 and Article 38 of the Constitution is correct, then it
seems to me that to construe Article 38 as depriving the Courts of their right
to enforce their own orders is to deny the fundamental tripartite division of
powers which underlies the entire Constitution. In my opinion, it is not to
suppose that a situation could arise in which the court was obliged to restrain
directly the commission of an act by the executive or by an agent of the
executive, so as to preserve the right of an individual. If the contention
made on behalf of the prosecutor were valid then by non activity on the parts
of the servants of the executive (the Attorney General or the Director of
Public Prosecutions) the executive could paralyse the capacity of the Courts to
enforce their will. Such a consequence would not only be grave, but, in my
view, would be a vital infringement of the independence of the courts as
guaranteed by the fundamental principle of the tripartite division of power.
For
these reasons I conclude that the inherent jurisdiction of the Courts to deal
summarily with contempt, at least as enjoyed by Courts of Record, has not been
in any way altered or diminished by the provisions of the Constitution of 1937
and that Article 38 of the Constitution must be interpreted as qualified by the
provisions of Article 34. Therefore, I reject the first submission made on
behalf of the prosecutor."
12. However,
it is agreed between the parties that the only issue presently before this
Court is to determine whether or not the defendant has a right to a jury. The
case for the defendant is contained in affidavit of Andrew Donagher who is an
executive of the defendant company. He adds to the facts given by Ms. Eimear
McKenna in her affidavit of the 29th November, 1996 as follows:-
"3.
Since Ms. McKenna swore her affidavit, there have been a number of
developments. This motion was brought in the immediate aftermath of the first
trial of this action which took place for nine days between the 5th November,
1996 and the 19th November, 1996. This motion came before the Court on the
12th December, 1996 when the defendant gave undertakings in terms of paragraph
b(i) to (iii) of a notice of motion pending the trial of the action. The
defendant thereby undertook, pending the trial of the action, not to publish
material of a certain nature in its newspapers. The judge adjourned the
outstanding pleas on the motion to the next list to fix dates."
[In
fact all that was left in the motion paper was the question of sequestration.]
"4.
The action came on for trial again on the 25th February, 1997 and was heard
over a period of 14 days from then until the 20th March, 1997. The jury was
unable to agree and they were discharged and a new trial ordered. The matter
again came on to trial on the 15th July, 1997 and took place over 11 days
between then and the 31st July, 1997. The jury found in favour of the
plaintiff and assessed damages at £300,000. Judgment was entered for this
amount.........this order is the subject matter of appeal by the defendants
which has not as yet been listed for hearing in the Supreme Court."
"5.
As appears from the order of the 12th December, 1996 the only substantive
relief now sought by the plaintiff from the defendant is an order for the
sequestration of such as the assets of the defendant as they lie within the
jurisdiction of the court. I am advised and so believe that the nature of the
relief sought predicates a finding of contempt of court on the part of the
defendant, and indeed it is alleged in the notice of motion that the actions of
the defendant in publishing a certain article did constitute a contempt of
court."
"6.
As appears from Ms. McKenna's affidavit the articles from which the Plaintiff
relies were published in the Sunday Independent on 10th November, the 17th
November and the 24th November, 1996. It is alleged that the effects of these
articles is to attempt to prejudice the plaintiff's position as a litigant
against the defendant by making various suggestions contrary to the interests
of the plaintiff. Complaint is also made that the articles contend that the
decision of Mr. Justice McCracken to discharge the jury was incorrect. It is
also alleged that there was an attempt to intimidate Counsel from acting on
behalf of the plaintiff."
"7.
I am advised and so believe that the defendant has the right under the
Constitution to have the charge of contempt tried before a judge and jury. I
am advised that other than certain cases of contempt in the face of the court,
there is no jurisdiction in this honourable court to conduct a summary trial of
an alleged contempt. I am further advised and so believe that this is
particularly so where the action in the course of which the alleged offence is
committed has concluded. The defendant is very anxious indeed for a jury to
hear and determine the facts of this matter and wishes to exercise its rights
under the Constitution to have this matter tried by the jury. I am advised and
so believe that the plaintiff may if he wishes send the papers in this matter
to the Director of Public Prosecutions for him to consider whether or not to
initiate a prosecution for alleged contempt of court."
"8.
I should however make it clear that the defendant will vigorously contest the
suggestion that it has been guilty of contempt of court. Every factual
proposition upon which Ms. McKenna relies is in dispute. The defendant does
not accept that his attempt to prejudice the plaintiff's position as a litigant
or that there was an attempt to intimidate counsel from acting on behalf of the
plaintiff."
"9.
Bearing in mind that the defendant intends fully to defend any contempt
proceedings that might be brought against it in proper form in the future, it
is necessarily limited in what it can say by way of response to the allegations
contained in Ms. McKenna's affidavit. However, I wish to point out that the
defendant, inter alia, will rely upon the fact that the articles complained of
were a response to an allegation of conspiracy made by the plaintiff through
counsel in open court on 19th November, 1996. On the following day after some
evidence had been given on behalf of the defendant the trial judge indicated
that he was satisfied that there was no such conspiracy. At the hearing of any
contempt trial, the defendant will point out, inter alia, that it and its
writers were entitled to respond to the attacks made on their reputations and
to seek to vindicate their good names and reputations. The defendant will also
point out that he is entitled to exercise his right of free speech under the
Constitution and would argue that he was entitled to engage in legitimate
criticism of what occurred in Court."
"10.
I have made these comments because I would not like the Court to believe that
the defendant accepted any part of what Ms. McKenna has to say on behalf of the
plaintiff. It is clear, however, that there are a great number of issues that
would fall to be determined by the jury at the trial of any contempt procedures
that might take place in due course and I am advised and so believe that the
defendant is entitled to have these matters determined by a jury. In the
circumstances, I pray this Honourable Court to refuse the relief sought in the
notice of motion."
13. This
affidavit is more like a pleading than an affidavit and does not comply in some
respects to provisions and rules of the Superior Courts. However, Counsel, on
behalf of the defendant, says that it cannot indicate what the question is to
be tried as that would be in the nature of an admission. His client is now
facing a criminal trial.
14. The
Court was referred to the following authorities:-
(1) Article
38 of the Constitution.
(2) AG
-v- O'Kelly (1928) I.R. 308.
(3) In
Re. Earle (1938) I.R. 485.
(4) AG
-v- Connolly (1947) I.R. 213.
1(5) In
Re. Haughey (1971) I.R. 217.
(6) McEnroe
-v- Leonard (Unreported Parke J., 9th December, 1975).
(7) Keegan
-v- De Burca (1973) I.R. 223.
(8) The
State (Cummins) -v- McRann (1977) I.R. 78.
(9) The
State (H.) -v- Daly (1977) I.R. 90.
(10) The
State (D.P.P.) -v- Walsh (1981) I.R. 412.
(11) In
Re. Kelly -v- Duighan (1984) I.L.R.M. 424.
(12) LRC
Consultation Papers on Contempt of Court, Chapter 8: Respective Roles of Judge
and Jury.
15. The
above authorities were either cited or mentioned to the court and were provided
for the courts consideration.
16. The
Court also considered in the matter of the Child Abduction and Enforcement of
Custody Orders Act, 1991 and in the matter of K.A.S., an infant and in the
matter of the Courts (Supplemental) Provisions Act, 1961, Section 45(1)(c) and
Stigman or in the alternative Section 45(1)(b) between B.S.S., Plaintiff and
J.A.S., (otherwise C) defendant and Independent Newspapers (Ireland) Limited
-v- Vincent Doyle and Jody Corcoran the first notice parties and Radio Telefis
Eireann, second notice parties and Independent Broadcasting Corporation
Limited, Raymond McDonald (otherwise Raymond Stone) third notice parties,
judgment delivered by Budd J. on the 19th and 22nd May, 1995. The leading case
which of course is binding on this Court is the Supreme Court decision in the
State at the Prosecution of the Director of Public Prosecutions, Applicant and
Anthony Walsh and Carmel Conneely, fourth and fifth respondents, 1981 I.R. 412.
In that decision Henchy J. concluded that since criminal contempt was clearly a
criminal offence and in the circumstances of the instant case, if proved, would
undoubtedly be a major such offence the respondents were, prima facie, entitled
to a trial by jury. He went on to hold, however, that the constitutional
guarantee of a trial
with
a jury
posited that there were substantial facts controverted. They would be the
facts to be determined by the jury but questions of law would be for the Court
to resolve. Accordingly, where there were, what he described as "live and real
issues of facts" to be determined (such as whether the accused committed the
act alleged) the accused has a prima facie right to have those issues of fact
determined by a jury. But he also considered that, in cases of criminal
contempt, the question whether those facts amounted to a contempt of court
charged must be deemed to be a question of law to be decided by the judge. The
statement in Brown (1967) I.R. 147 that the literal construction of a
constitutional provision could be modified by some other provision of the
Constitution applied and is so viewed not merely to express provisions of the
Constitution but also to those provisions which have to be imported by
necessary implication. To allow a jury to determine not merely the issues of
fact but also whether in law they amounted to the offence charged would, in the
case of criminal contempt, be seriously at variance, in the view of Henchy J.
with the expressed constitutional guarantee of the independence of judges and
the implied requirements that fundamental fairness of procedures should be
observed. In the central passage of this judgment he continues as follows:-
"A
jury has an unqualified and unreviewable power (as distinct from a right) to
render a verdict of not guilty in the case which they have jurisdiction to try:
(see Devlin on 'Trial By Jury', 1965 ed. p.87). Thus, is the question whether
a particular act of alleged contempt which was clearly a criminal contempt and
inimical to basic fairness of procedures, had to be decided by a jury, the jury
by a perverse verdict of not guilty could set at nought the constitutional
guarantee that basic fairness of procedures will be observed and could at the
same time undermine the independence of the judiciary. The committal is to the
arbitrament of layman of the question whether the conduct complained of
amounted to criminal contempt is singularly unsuitable for a jury because of
the varying standards and values that juries would be apt to apply; because
such a question (being a question of the minimum standards of behaviour
necessary for the due administration of justice in the Courts) calls for an
answer which cannot be given in the laconic and uninformative verdict of
untrained and inexperienced laymen; because by their verdicts the jury may put
a wrongful acquittal beyond correction; because such an incorrigible acquittal
may leave a contended judge in a state of odium and rejection in the minds of
the public, to the detriment of his independence: and, finally, because such
verdicts may have to be allowed to stand although they condone breaches of the
requirement of fundamental fairness of procedures.
The
ultimate responsibility for the setting and the application of the standards
necessary for the due administration of justice must rest with the judges.
They cannot abdicate that responsibility, which is what they would be doing if
they allowed juries of laymen to say whether the conduct proved or admitted
amounted to criminal contempt. It may be said that it is short of the ideal
that a judge may sit in judgment on a matter in which he, or a colleague, may
be personally involved. Nevertheless, in such matters, judges have to be
trusted for it is they and they alone who are constitutionally qualified to
maintain necessary constitutional standards."
17. Henchy
J. was expressing the views to the majority but O'Higgins C.J. took the view
that there was no constitutional right to a jury in a case of this sort since
Article 38.5 had no application to such charges. O'Higgins C.J.'s review is
robustly that contempt of court, in all its forms is simply outside the main
stream of the substantive criminal law. That seems to have been the common law
and according to precedent with what was used in the Saorstat Eireann
Constitution of 1922 which is continued by Article 50 of the present
Constitution.
18. While
much of what I have quoted can be said to be obiter, it seems to this court to
be logical and indeed desirable. As the defendant persists that it is
admitting nothing, I believe that the Court has a simple issue which is whether
these newspaper articles published by the defendant, or any of the articles are
a contempt of court. That is a matter primarily of law. The intention of the
writers or the editors is not normally relevant. This matter shall be tried by
a judge alone and I reserve the question of costs of this application to my
colleague who decides the main issue.
© 1998 Irish High Court
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