THE HIGH COURT
2003 No. 3 MCA
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
INDEPENDENT NEWSPAPERS IRELAND LIMITED
First Respondent
and
MICHAEL ROCHE
Second Respondent
and
SUNDAY NEWSPAPERS LIMITED
Third Respondent
and
COLIN McGINTY
Fourth Respondent
and
INDEPENDENT STAR LIMITED t/a THE IRISH DAILY STAR 
Fifth Respondent
and
GERARD COLLERAN
Sixth Respondent
and
ALICE O'SULLIVAN
Seventh Respondent
and
RADIO TELEFIS EIREANN
Eighth Respondent
and
JAMES DALY AND ROSS BYRNE
Notice Parties
JUDGMENT of Mr. Justice Kelly delivered the 7th day of March, 2003.
Introduction
This judgment sets out my reasons for acquitting the respondents (save the first) of contempt of court in respect of the publication of material prejudicial to the fair trial of the notice parties at a time when the charging of such notice parties before the District Court had not taken place.
The Director of Public Prosecutions contended that it was a contempt of court to publish such material when charges were imminent but had not yet been preferred in the District Court. I held that such conduct did not amount to a contempt of court in Irish law. These are my reasons for that finding.
Facts
At. 4.03am on Saturday 11th January, 2003 a traffic accident occurred at the junction of North Circular Road and Portland Row in Dublin. Two vehicles were involved.
One was a taxi driven by a Robert McGowan. The other was a Honda car believed to have been stolen. Robert McGowan was killed instantly. Three persons were cut out of the stolen car by the emergency services. Two of them were the notice parties and the third, one Edward Gavin, died on 'Tuesday 14th January, 2003.
Both notice parties were children within the meaning of that term as contained in the Children Act, 2001.
They were taken to the Mater hospital. At 11.27 am on Sunday 12th January, 2003 the notice party Daly was arrested and detained under s.4 of the Criminal Justice Act, 1984.
At 1.30pm on Sunday 12th January, 2003 the notice party Byrne was arrested and detained under s.4 of the Criminal Justice Act, 1984.
Both were later released from custody and then arrested for the purpose of being charged with an offence under s.112 of the Road Traffic Act, 1961 as amended. Both were held in custody overnight and taken to the District Court on the following day.
At 10.30 am on Monday 13th January, 2003 both notice parties appeared before the District Court where evidence of arrest, charge and caution was given in respect of them. They were remanded in custody. Much publicity was generated on the 12th and 13th January, 2003 concerning these events. It is in respect of some of that publicity that application was made to Finnegan P. for leave to commence the instant proceedings. Leave was granted and the proceedings came to hearing before me commencing on the 23rd January, 2003. They were concluded on the 28th January, 2003.
The First and Second Respondents.
At the time of the hearing the first respondent was the publisher of the 'Evening Herald' and `Irish Independent' newspapers. The second respondent was the Group Managing Editor of those newspapers. As such he had executive responsibility for budgetary, financial, legal and commercial issues relevant to those papers. He was not however the editor of either of them. There was uncontroverted evidence before the court to the effect that he did not have day to day responsibility for the content of the newspapers. Such being the case and given that the allegation made against him was of a criminal contempt of court in respect of matters published in these newspapers I was of opinion that he ought to be acquitted. He was not the editor of either journal nor did :he have responsibility for the content of them. For these reasons he was acquitted.
On Monday the 3`h January 2003 the Evening Herald published a front page story under the headline "Boys face joy ride death charges ". The sub headline was "Teenagers facing court over smash that killed taxi driver were out on bail". The article was accompanied by a picture of the two notice parties with the legend "Caught: Ross Byrne " and "Caught. James Daly " beneath them. The article so far as relevant stated
"These are the two teenage youths who are to be charged in relation to the fatal smash which robbed a two year old boy of his father, a woman of her husband to be and devastated parents of their only son.
They were out on bail on other charges when they allegedly engaged in a driving madness which ultimately cost 30 year old Bob McGowan his life.
Ross Byrne (16) from Clonard Road in Donnycarney Dublin - allegedly the driver of the car -- was in the Children's Court less than 48 hours before the tragedy at =l. 00arn on Saturday at Summerhill parade, Dublin. He was due back there next week.
Charges
His pal James Daly (16) from Gloucester Place, in Dublin's North inner cityallegedly a f ont seat passenger in the killer car - was also due back in the Smithfield courtroom next week.
Byrne is expected to be charged with the unauthorised taking of the Honda car involved in the f gtal crash.
Daly is expected to be charged with unauthorised carriage in the vehicle. "
A twofold charge of contempt of court was levelled against the first respondent arising from this publication in the 'Evening Herald'. It was said it constituted a contempt of court in respect of charges which were at the time of publication pending. Indeed the very body of the article recognises the fact that the notice parties were out on bail in respect of those charges. Insofar as this allegation of contempt of court was concerned I found it proved and imposed a fine of E10,000.
The second allegation was to the effect that a contempt of court was committed by the publication of prejudicial material prior to the charging of the notice parties in the District Court in respect of the incident on 11 "' January, 2003. I held as a matter of law that if such prejudicial material had been so published contempt of court would not have been committed. However because on the evidence I was satisfied that publication continued after the time when the notice parties were charged in the District Court a contempt was in fact committed. I took the view that it was rather technical in nature and so imposed no penalty. The evidence demonstrated that the offensive material was contained only in the first edition of the newspaper.
The second edition which was printed at approximately 12 noon had all reference to the notice parties removed because word had been received that they had been charged.
The Irish Independent published an article on 13"' January 2003. It was contained at page 9 of the newspaper. The headline read
"Two death smash teenagers already have criminal records. " The article stated inter alia that
"Teenager A Was the driver of the stolen Honda which raced at up to I00mph across the city, rammed Garda cars and ploughed through the taxi driver's car at 4.00 am on Saturday.
From Donnycarney, teenager A was released on bail following a public order and burglary charge in the Children's Court on Thursday last pending directions, front the DPP -just two days before the fatal crash.
He has a previous joy riding' conviction and in early January 2002 was sent to St. Laurence's Institution, a non-secure unit for young offenders. He was convicted under section 112 o f the Road Traffic Act for unlawfully travelling in a stolen car.
On Thursday morning last the Children's Court heard that he was arrested at a block of apartments in the city centre at 7.20 am on December 31st. There was no objection to bail and the boy was bailed to reappear on January 23rd.
It is also believed that he faces a number of separate charges.
Teenager B is a 16 year old from Gloucester Place in the inner city with a very troubled and criminal history.
He suffers from depression due to his extremely difficult family circumstances and was once arrested after he was caught carrying a hatchet around the city in the middle of the night.
In May the Dublin Children's Court heard that the boy was found carrying the hatchet at 1.30 am on Rutland St. on May 20`h. He pleaded guilty to possessing (sic) of the instrument for use in larceny.
A Garda objected to the boy, who lived at a community care facility, being granted bail and asked instead to have him held in custody.
She said the boy had been previously remanded on bail to a community response facility in December 2001 but since the start of May he had only stayed there four times.
The judge, Conal Gibbons, said he was shocked by the idea o)°a person walking around the streets carrying an axe.
He said he wanted to remand the boy to St. Patrick's Institution as it was more secure then the care facilities. However, the boy was sent back to the non secure unit when the court was told he had already spent a week in St. Patrick's Institution which had affected his depression.
His solicitor said the boy had a troubled, family background and needed structure in his life where care workers could work with him and asked the judge to, further remand the boy to the care facility where people where willing to help him.
A probation officer assigned to the boys case said that the boy was a troubled youth and much of his behaviour was caused by his relationship with his father which had affected his mental health state.
She said the boy had learning difficulties and had been receiving counselling and that any custodial detention would cause concerns for his current mental health.
A staff member from the boys' community response facility said the boy was not aggressive and was willing to allow intervention in his life.
He said the boy was carrying a lot of "baggage ". He also said placing the boy in custody would only serve to criminalise him.
In September, the teen came back to the court on a series of charges.
He'd been arrested for stealing a bicycle and was also charged in relation to a photo snatch.
Other offences outlined to the court included a charge of handling a stolen moped and a nail gun.
The court was told that Gardai who searched the boy's home,,found a stolen 02 registration Suauki moped worth €1,5000 and a nail gun with a value of €769.68.
He was bailed again on a separate charge to appear in court later this month. "
Again in this case a two fold allegation of contempt of court was made. One related to publication of prejudicial material in relation to charges which were pending before the courts at the time of its publication. I convicted the first respondent on this charge and imposed a fine of €5,000. I took the view that there was substantially less culpability because this publication did not mention the boys by name nor did it produce any photographs of them unlike its sister publication the `Evening Herald'.
On the charge of contempt in respect of charges which had not yet been preferred before the District Court arising out of the fatal collision I acquitted.
The Third and Fourth Respondents
The third respondent is the publisher of the `Sunday World' newspaper. The fourth respondent is its editor.
On Sunday 12"' January, 2003 the front page headline article of that paper concerned the fatal crash. It was headed "Freed to kill". It was accompanied by a photograph of Ross Byrne with the title "Death driver: teen thug Ross Byrne ". The article stated that
"The killer teen who slaughtered a taxi man in an horrific I00mph smash early yesterday should have been behind bars.
The Sunday World can reveal that the 16 year old tearaway Ross Byrne, who has a string of joyriding convictions, was the driver of the stolen Honda that ploughed into Robert McGowan 's taxi in Dublin at 4 am.
The baby faced tear away received TWO two year prison sentences late last year but was freed to carry on his chaotic crime spree. "
The article also stated "The Sunday World exposed Byrne 's shocking record of joyriding offences NINE months ago amid warnings that he was out of control.
On page 2 of the paper bearing the title "We are heartbroken. He was a lovely had and a great father. " there was a photograph of Ross Byrne with the tale "Death driver: Byrne" and a picture of James Daly with the title "Passenger: James Daly. " This article stated inter alia that both "the driver of the stolen vehicle Ross Byrne from Clonard Road in Donnycarney and a second passenger, James Daly, from Gloucester Place, off Sean McDermott Street, were treated for their injuries in the Mater Hospital. Byrne later signed himself out and is now being sought by Gardai.
In an article intituled "How we revealed trail of mayhem by thug" on pages two and three of the newspaper it was stated inter alia that
"The innocent looking 16 year old boy who drove the stolen car involved in yesterday mornings horror smash which killed taxi driver Robert McGowan, is Ross Byrne front Donnycarney in North Dublin.
Ross in also responsible for the death of his pal, 16 year old Edward Gavin the back seat passenger in the same car. "
The article also stated
"Amazingly, Byrne who was wearing a seatbelt at the time of the crash suffered only an injured jaw. And yesterday morning he tried to sign himself out of hospital but was prevented from doing so by doctors.
Baby.faced Byrne has been out of control since he was just twelve. He is an appalling example of how our juvenile correctional system is an absolute shambles.
For Byrne should not have been able to rob a car on a Friday night if the system worked.
The Sunday World can reveal that Byrne was jailed TWICE in August and September last. On each occasion he was sentenced to two years detention in Oberstown House.
However despite these sentences he was still allowed to roam free and exasperated Gardai in Dublin City Centre arrested him again on December 30'0' -just two weeks ago - and charged him with breaking into a premises.
Despite Garda objections he was granted bail and freed to cause the mayhem that led to yesterday's bloody carnage.
Also arrested and charged with Byrne on December 30th was 16 year old James Daly who was the front seat passenger in the stolen car yesterday.
Daly is another out of control tearaway. He too was granted bail, despite Garda objections and the fact that he is facing almost FORTY charges relating to assault, violent behaviour, trespassing, theft and criminal damage.
Last night Daly was still being held at a Dublin hospital where he is suffering from a suspected spinal fracture. "
Offence
Since Byrne's first recorded offence in January 2000 he has accumulated over forty criminal convictions for cat- theft, breaking and entering, robbery, assault, ramming police cars and selling drugs.
Last April the Sunday World exclusively revealed how Gardai were predicting that this tearaway and his cohorts had the potential to cause death and devastation.
We revealed how Byrne is the ringleader of a mob of six or seven teen terrors whose crime sprees have been causing chaos and danger on the streets of Dublin.
Incredibly, Byrne has 15 convictions for car theft and attempting to rob cars. In one incident, he and three cronies were caught stealing cars in Dublin Airport. During a high speed chase he rammed two Airport Police cars.
He is also suspected of ramming several Garda cars some of which resulted in the injury of officers.
I took the view that this publication constituted a contempt of court in respect of charges which were pending in the District Court at the time of its publication. In view of the fact that it named the two individuals charged, published photographs of them, gave details of their criminal record and bad character and specifically referred to the charges which were pending I imposed a fine of €20,000 on the third named respondent. However I took the view that the publication did not constitute a contempt of court in respect of the charges which at the time or publication had yet to be preferred in the District Court.
The Fifth and Sixth Respondents
The firth named respondent is the publisher of a newspaper called the `Irish Daily Star' and the sixth named respondent is the editor of that journal.
In its issue of the 13`x' January, 2003 an article appeared on page 4 of the paper carrying the title "Smash teenagers were out on bail". It was accompanied by pictures of both Ross Byrne and James Daly with the title "Caught: Ross Byrne and James Daly were arrested in Dublin's Mater Hospital yesterday. The article stated
"The teenage joy riders involved in the smash that led to the death of Robert McGowon have a string of previous joyriding convictions.
Sixteen year olds Ross Byrne, Edward Gavin and James Daly were all on bail for a litany of criminal offences when their stolen Honda ploughed into the taxi early on Saturday.
Gavin, who was the back seat passenger in the car, was pronounced clinically dead and is currently on a life support machine at St. James's .Hospital. The teenager from Ballybough Road in the north inner city, was on bail for criminal offences, as was front seat passenger James Daly. The driver of the vehicle, Ross Byrne, from Clonard Road in Donnycarney was bailed on charges twice in August and September last year.

Years
The teen criminal was sentenced to two years of detention in Oberstown House.
Despite this, he was still let go and was arrested as early as two weeks ago by Gardai in Dublin city centre on December 30`h. He was charged with breaking and entering a premises but in spite of Garda objections he was granted bail and freed.
His pal and co passenger James Daly was also arrested and charged on the same day.
Daly, from Gloucester place, just off Sean McDermott street, was also granted bail despite the fact that he is facing a staggering forty charges.
Since Byrne 's first recorded offence in January 2000 he has accumulated over forty convictions for a wide variety of offences.
Both Byrne and Daly were relatively unhurt after the smash and were arrested by Gardai at the Mater Hospital yesterday. "
Again in the case of this journal the names of the notice parties were published together with their photographs and details of their criminal record and bad character.
I adjudged this to be a contempt of court in respect of the charges which were pending before the District Court prior to the 13 `" of January, 2003. I imposed a fine of €10,000 on the corporate respondent. Insofar as it was alleged to be a contempt of court in respect of the charges which were preferred on 13"h January 2003 I acquitted both of these respondents for the reasons which I set out later.

The Seventh and Eighth Respondents
The seventh respondent is the producer of a programme called "The Gerry Ryan Show " which is broadcast on national radio. The eighth respondent is the broadcaster of that programme.
Shortly after 9.00 am on Monday 13 `h January 2003 an interview between the presenter Gerry Ryan and a reporter called Paul Reynolds was broadcast in that programme. The interview concerned the fatal collision in question. Mr. Reynolds described the events surrounding the collision. The following exchange then took place.
"Gerry Ryan: now bearing in mind and certainly aware of the care that has to be taken when you are dis...
Paul Reynolds: Sure.
Gerry Ryan: Discussing these things before court. Ross Byrne one of the boys being charged and one appearing before court today. Is he the boy who attempted to check himself out of hospital.
Paul Reynolds: He is allegedly the boy who tried to check himself out of hospital. I understand he was the driver of it... But I am sort of uncomfortable, I am...
Gerry Ryan. Can you tell us a bit about him.
Paul Reynolds: I am uncomfortable in dealing with names or identifying individuals, Gerry. What I'll tell you about is, I'll tell you about the two of them. Two of them are well known to the guards. Two of the young boys aged 16 years of age they have been zip before the Children's Court since they were 12/13 years of age, numerous convictions. One of them has nearly got 100, the other has got at least over forty. They are for the standard juvenile offences, burglary, car theft, breaking and entering, that sort of thing. So they are ... The guards know them well, they knew them instantly, they've been in trouble with the guards for the last number of years and they have made numerous appearances before the Children's Court...
Gerry Ryan: Were either of these boys on bail at the moment when the death of Robert McGowan took place?
Paul Reynolds: I couldn't confirm that over the weekend but what I do know is that both of them have received numerous sentences and both of them have committed offences on bail in the past and that is....
It is agreed that the entire of this broadcast took place prior to 10.30 on the morning of the 13t" January 2003. I acquitted these two respondents taking the view that I could not say beyond reasonable doubt that the publication constituted a contempt in respect of charges which were pending at the time of broadcast. It is agreed that the broadcast was completed well before 10.30 am on the 13 `h January 2003. Insofar as it was alleged to be a contempt concerning the charges which were preferred in the District Court at 10.30 on 13th January I likewise acquitted for the reasons which I now set forth.
The Legal Question.
As is clear from the foregoing I tools the view that as a matter of law publication of the material the subject of the complaint prior to charges being preferred in court could not amount to a contempt of court. These are my reasons for so finding.

Contempt of Court.
Contempt of court is the name given to the species of wrongful conduct which consists of interference with the administration of justice. The ability to deal with such conduct is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms. The most obvious and common is a wilful failure by a party to proceedings to comply with a court order made against him. By so doing; the purpose the court sought to achieve in making the order is frustrated. Such conduct is therefore regarded as a contempt of court. In dealing with such contempt the primary object of the courts intervention is coercive rather than punitive. Compliance with the court's order is the main but not the only object sought to be achieved. That form of contempt is civil contempt. It is not the form of contempt in question in this case.
In the present case the allegation made against the various respondents is that they were guilty of a criminal contempt of court. That is an offence at common law. It is distinguished from other offences because of the power inherent in the court to deal with such contempt summarily by way of attachment.
Criminal contempt is a judge made doctrine but has been found to be consistent with the exclusive role in the administration of justice conferred by the Constitution on the courts (see The State (DPP) -i,- Walsh [1981 ] I.R. 412 and In re Kennedy and McCann [1976] I.R. 382 and Kelly -v- O'Neill [2000] 1 I.R. 355). Although this jurisdiction is not known to the civil law countries it has been found to be in conformity with the European Convention on Human rights (see Times Newspapers Limited -v- United Kingdom [1979] 2 E.H.R.R. 245).
Despite the fact that the Law Reform Commission in its report on contempt of court published in 1994 (LRC 47, 1994) pointed out the many uncertainties in this area of the law and its need of clarification by legislation (a view which appears to have been endorsed by Keane J. as he then was in Kelly -v- O 'Neill (supra)) no clarification by means of legislation has taken place.

Irish Case Law
The decision of O'Hanlon J. in The State (DPP) -v- Independent Newspapers Limited & ors [1985] ILRM 183 is a decision which deals with the point in issue in these proceedings.
In that case the Director of Public Prosecutions applied for a conditional order of attachment against the publisher and editor of the Evening Herald newspaper together with a journalist employed on that journal. The application arose out of an article dated the 30`x' March, 1984 which stated that the Director of Public Prosecutions intended to bring indecency charges against an unnamed local authority councillor. The councillor's political party was named but not the local authority. No charge had been brought at that time but on the I st April, 1984 a charge of indecency was brought against a named person and the affidavit grounding the application linked that charge with the article. O'Hanlon J. refused the application. In the course of his judgment he said
"At the time the report was published, no charge had yet been brought, but the affidavit of Louis J. Dockery, Chief State Solicitor, grounding the present application links the publication with a charge brought against a named accused on 1 April, 1984. Had the publication complained of appeared after a preliminary examination had commenced under the provisions of the Criminal Procedure Act, 1967 it would have amounted to a breach of s.17 of that Act, giving rise to the penal proceedings contemplated by that section, which, for the first time, imposed very stringent restrictions on the information which could be given in the press concerning the proceedings in the District Court leading on to a possible indictment.
In the present application no reliance is placed on those innovative provisions found in s.17 of the Act of 1967, but rather on the general rules of law concerning the publication of material which may tend to prejudice the trial of proceedings which are pending"
These observations apply with equal force in the present case. O'Hanlon J. went on
"It appears to me that the present application should not be granted, for a number- of reasons. In the first place, it is very unusual for such an application to be brought in respect of material published before anyone has been charged in respect of a particular offence, and there appear to be only obiter dicta supporting the right to seek attachment for contempt in such circumstances. In R -v- Parke [19037 2 KB 432, Wills J. spoke of poisoning the fountain of justice before it begins to flow', and his dictum in this context was referred to with apparent approval by Lord Hewart C.J. in R -v- Daily Mirror ex parte Smith, [1927(1 KB 8-1.5. One of his colleagues, Talbot J. (at p.832) expressed reservations, however, saying: 7 have had grave doubts whether the facts here call for the exercise of our jurisdiction. On the whole I am prepared to concur in the judgment just delivered, understanding as I do that it is dealing only with the question in relation to proceedings actually pending'.
In R -v- Savundroyanagan and Walker [1968] 3 All ER 439, the English Court of Appeal, Criminal Division, had to deal with an appeal where the accused claimed that his trial had been unfairly prejudiced by a television interview which took place before he had been charged with any offence, but when it was quite obvious that a charge was about to be brought against him. Salmon L.J delivering the judgment of the court, (which, incidentally, rejected the application for leave to appeal), said (at p.441)
'No-one should imagine that he is safe from committal for contempt of court if, knowing or having good reason to believe that criminal proceedings are imminent, he chooses to publish matters calculated to prejudice a fair trial ... trial by television is not to be tolerated in a civilised society'. These, however, are only obiter dicta, and I have not been referred to any decided case in this jurisdiction or in the other common law jurisdictions where attachment for contempt of court has been grounded upon material published when no court has actually had seisin of the case in respect of which contempt is alleged. As the courts must always have regard to the countervailing importance of preserving the freedom of the press, I do not consider that the facts disclosed in the affidavit grounding the present application are of such a character as would justify me in extending the law as to contempt of court in the manner now sought by the Director of Public Prosecutions ".

In the present case the Director of Public Prosecutions argued that publication of the material in question prior to the preferring of the charges in question before the District Court amounted to a contempt of court. However, he disavowed that this contention would amount to an extension of the law of contempt. Rather he sought to argue that I should not follow the decision of O'Hanlon J. on the basis that it did not accurately represent the law of this State. The Director of Public Prosecutions says that publication of prejudicial material when charges are imminent is a contempt of court in Irish law.
The judgment of O'Hanlon J. does not appear to have fallen for reconsideration by this court prior to the present case. It was however, considered by the Law Reform Commission in its consultation paper on contempt of court published in July 1991.
The Law Reform Commission said
`There is some authority internationally for the view that the sub judice rule should first apply when proceedings are imminent. It has the support of the Northern Ireland judiciary as well as English judges. In Ireland, in The State (DPP) -v- Independent Newspapers Limited, O'Hanlon J. addressed the issue. "
The Commission then quoted the facts of the case and the final paragraph from the passage in the judgment of O'Hanlon J. which I have just set forth. The Commission then went on
"It is perhaps unfortunate that the Northern Ireland case of Beaverbrook was apparently not mentioned as it represents a clear authority for the application of the law of contempt to cases where proceedings are imminent ".
The Beaverbrook case there mentioned is R -v- Beaverbrook and Associated Newspapers Limited [1962] NI 15.
I will return to that judgment later. I am of the view that it does not represent an authority for the notion that at common law contempt of court may be committed by the publication of prejudicial material where proceedings are imminent. Indeed I am not alone in this view as will be clear when I come to consider the case.
Tentative conclusions were expressed by the Law Reform Commission in its consultation paper. Insofar as the topic under consideration here was concerned the Commission said this
"We must now express our tentative conclusions on the question of temporal limits to the sub judice rule. We are conscious of three important policies effecting the issue: The need to protect those involved in legal proceedings from prejudice to improper publications; the public interest in ensuring that the media are not unduly cramped in their coverage of public affairs and newsworthy events; and the need for- a degree of certainty in the legal principles so that they can be applied with some degree of confidence in the day to day operation of press, radio and television.
We were strongly attracted by the argument that no liability should ever apply to prejudicial publications published before proceedings had become active. This appears to be the existing law; it has the merit of giving some degree of certainty to the law; and it has widespread acceptance in other jurisdictions. Nevertheless, after much consideration, we have concluded that it would be wrong for the legislation to give a blanket immunity to publications before proceedings have become active, however serious and manifest the prejudice must have been apparent to the publisher. We think that it would be wrong to introduce a negligence based test with regard to these publications, since that might be regarded as restricting the media too greatly. Our tentative preference is for a narrow rule which would impose liability for contempt with regard to publications before proceedings are active where the publisher is actually aware of facts which, to the publishers knowledge, render the publication certain, or virtually certain, to cause serious prejudice to a person whose imminent involvement in criminal or civil legal proceedings is certain or virtually certain. Under this test, only cases which cry out for a sanction will./all within the scope of liability. No publisher could morally justify a publication of this character".

The fact that the Law Reform Commission reached such a tentative conclusion suggests that it accepted that O'Hanlon J. correctly stated the law in this jurisdiction. The Commission went on to express the view (again on a tentative basis) that the criteria specified in the Contempt of Court Act, 1981 in the United Kingdom represented a suitable model for legislation to be enacted in this country.
In September, 1994 the Law Reform Commission published its report on contempt of court. In dealing with the tentative proposal that the law should be altered so as to extend liability to cases where proceedings are imminent it was noted that such proposal met with much criticism. The Commission said
"We have carefully considered these objections, which were largely related to the degree of uncertainty that it was said would result from such a change in the law and which, it was urged, would have an inhibiting effect upon the freedom of the press. We remain satisfied that our recommendation should extend to imminent proceedings ".
The Commission went on to recommend that the confined nature of the offence which it was proposing should be the subject of legislation. It seems quite clear that the Commission was of the view (a) that if there was to be a contempt of court in respect of proceedings which are imminent it would have to be brought about by legislation and (b) even then that proposal attracted "much criticism".

Northern Ireland
The Law Reform Commission expressed the view that it was unfortunate that the Beaverbrook case was not mentioned to O'Hanlon J. when he was deciding State (DPP) -v Independent Newspapers Limited. The Commission expressed the view that the Northern Irish decision represents a clear authority for the application of the law of contempt to cases where proceedings are imminent. But in my view it is clear that the court came to that conclusion not on the basis of the common law but because of the existence of s. l l of the Administration of Justice Act, 1960.
It is clear from the judgment of Sheil J. that he rejected an argument made by counsel that the Administration of Justice Act, 1960 was a remedial Act designed to limit and not to extend the common law liability which theretofore would permit a prosecution for contempt of court only if proceedings were pending. Counsel argued that where the Act spoke about proceedings being "pending or imminent" the word "imminent" could refer only to the degree of culpability and not to the question of whether culpability existed. The judge said
"If this argument is correct it means that the position still is that proceedings must be "pending" at the time of the publication. That is not, however, what s.II says. It refers to "proceedings pending or imminent" and the word "imminent" cannot be ignored if effect is to be given to the section as a whole ".

It is clear therefore that the 1960 Act extended the existing common law position so as to capture publication of offensive material at a time when proceedings were imminent rather than pending.
I am fortified in this view of the Northern Irish authority by the judgment of Hodgson J. in Attorney General -v- Sport Newspapers and Ors [1991 ] 1 WLR 1194 at 1218 where he said
"I have briefly referred to the Irish case, R -v- Beaverbrook Newspapers Limited [1962] NILR 15. Prior to 1981 it is the only decision that for proceedings to be imminent was enough. It is clear that the court arrived at that decision because they concluded that s. 11 of the Administration of Justice Act, 1960 obliged them so to. find The court did not consider what without s.11 the law was ".
In these circumstances I am of the view that even if the Beaver-brook case had been cited to O' Hanlon J. his conclusion would not have been altered.
Whilst the Law Reform Commission expressed the view that it was unfortunate that the Beaverbrook case was not mentioned to O'Hanlon J. it is perhaps a little surprising that the Commission itself makes no reference to another authority which might have been drawn to O'Hanlon J.'s attention but was not. That is the decision of the High Court of Australia in the case of James -v- Robinson [1963] 109 CLR 593 where that court gave what is arguably the most comprehensive consideration to this topic in the common law world.

The Australian Authoritv
James -v- Robinson was decided by the High Court of Australia in 1963. That court allowed an appeal from an order of the Supreme Court of Western Australia which imposed penalties for contempt of court arising out of material published in a weekly newspaper called 'The Sunday Times' which had a circulation throughout Western Australia. In two issues of that paper of Sunday l oth February, 1963 there was published an account of two killings by a "wild gunman" in Perth. The articles clearly identified the gunman and it was related that after killing two named persons in public places and threatening others he had secreted himself in a pine plantation not far from Perth. The articles purported to report the accounts of various eye witnesses. They said that an intensive manhunt was in progress at the time of the publication of the newspapers. Each account commenced with a banner headline, the first being "Two murdered by gunman at Belmont" and the second in even larger type "Two murdered". Each account featured some photographs and in the latter issue there was a photograph of the respondent as the "hunted' man.
On Tuesday the 12th February, 1963 two days after publication, complaints were sworn alleging two murders by Robinson and on the next day he was charged and remanded in custody.
Two questions of law were raised before the Supreme Court of Western Australia only one of which is relevant for present purposes. That question was whether the publication of the reports in question amounted to contempts of court since no relevant proceedings were then pending before the court. The Supreme Court decided that issue in a manner adverse to the newspapers. Its decision was unanimously reversed by the High Court of Australia.
Two judgments were delivered. Four judges (Kitto, Taylor, Menzies and Owen JJ.) delivered a joint judgment. A separate but concurring judgment was delivered by Windeyer J.
In the joint judgment there is a comprehensive consideration and analysis of the antecedent English case law on the topic. Amongst the cases which are considered in some detail is that of R -v- Parke [1903] 2 KB 432 which contains the statement of Wills J. quoted by O'Hanlon J. in the State (DPP) -v- Independent Newspapers Limited & ors [1985] ILRM 183 where Wills J. spoke of poisoning the fountain of justice before it begins to flow. Having considered all of this jurisprudence the judges concluded as follows

"We do not think that the very general considerations based upon the notion of poisoning the stream of justice before it begins to flow provide any sound or adequate test for determining what is and what is not contempt of court. A publication antecedently to the commencement of proceedings may, as we have already said, constitute a libel or offence punishable under and in accordance with the general law, but it is not contempt of court. We think that in order to constitute contempt of court it must, for the reasons which we have indicated, be concerned with proceedings which are pending in a court in the sense in which that expression has been applied in the cases to which we have referred. Indeed, if the imminence of proceedings were to be regarded as sufficient foundation for applications for attachment for contempt in matters of this character - which would, of course, introduce many difficulties and much uncertainty - then there was no reason why the courts should have taken the trouble, as they have done in the many cases mentioned, to examine the significance of the laying of an information or the making of a charge and subsequent arrest. The present case is unusual, in as much as it seems that the alleged crimes were committed in public places with attendant publicity and the respondent was pursued by a large body of police officers with a view to his apprehension. Nevertheless, these circumstances provide no foundation for a departure from the rule that publications of the character in question here are not contempts punishable summarily in the Supreme Court unless at the time when the publications are made a court is in some way or other seised of the subject matter- and the Supreme Court is thereby vested with a power to protect its authority, or the authority of the court concerned, to determine the relevant proceedings without obstruction or interference ".

In his concurring judgment Windeyer J. said
"In case after case in England it has been said that the offence is committed when matter is published, with intent to affect or influence, or which is calculated to affect or influence, pending proceedings. Persuasive support for this proposition, with its requirement that proceedings must be pending, may be .found also in American cases.
The word "pending" in this context, is used in its ordinary legal sense as meaning that the trial or proceedings have been commenced and not completed. The rule applies equally to civil and to criminal proceedings. Once a matter becomes sub judice, and while it remains sub judice, comment that could influence judgment is unlawful. That is the basis of the rule ".

The judge then went on to consider a number of English authorities concluding with a consideration of R -v- Parke. He continued

"The learned judges of the Supreme Court, impressed by the fact that the mischief was the same ifpublication was made shortly before arrest as if it were afterwards, held that they had and should exercise power to punish for contempt in this case. Their Honours said that where "the apprehension of the accused and the taking of criminal proceedings against him on a particular charge were not merely conjectural but were a matter of virtual certainty, and were in fact imminent, and where the publication is clearly calculated to prejudice his fair trial on that charge, this court should not shrink from invoking the jurisdiction to punish those responsible ".
I appreciate the force of this. I certainly would not suggest that the Supreme Court, or this court, should shrink from invoking any jurisdiction that it has to put down a mischief. But I have come to the conclusion - not, I hope, the result of shrinking or timidity, that the power to punish for contempt of court could not properly be exercised in respect of these articles at the time they were published. That Robinson had been arrested before the application for an attachment of the newspaper was instituted is, in my view, immaterial; there is no such thing, I think, as `contingent contempt', to adopt the phrase of Keating J. in Metzner -v- Gounod [1874] 30 LT 26-1. ...	But we are concerned with a criminal offence, and one triable otherwise than by the ordinary processes of the criminal law. Its limits are not at large. That the harmful consequences of a publication made before proceedings are commenced may be no less than if it were made afterwards does, naturally, seem a ground for saying that it too should be unlawful. And it well may be. But it is not punishable by summary procedure as a contempt; that is all that I mean to decide. Contempt of court is historically, and by its name and nature, concerned with the position of courts, with proceedings in court and with the protection of parties to proceedings in court. Whatever view one may hold on the question - much discussed is the decision of the House of Lords in Shaw -v- Director of Public Prosecutions [1962] AC 220 - of the province of judges as custodes morum, it seems to me, with respect, that the decision of the Supreme Court involved not merely the making of a new precedent, but a departure from old principle, already extended to its utmost limit ".

Windeyer J. then went on to consider the modifications of the law concerning contempt which had been made by the Administration of Justice Act, 1961) in England. He referred to s. l l of that Act (which was of course the section considered in the Beaverbrook decision in Northern Ireland). But of it he says
"But that provision can have little, if any, weight in the determination of the present question. It alters in one respect the law as stated in R -v- Odhams Press Limited [1957] 1 AB 73; and it perhaps assumes that a publication calculated to interfere with the course of justice could be held to be in contempt if proceedings were at the time imminent. Presumably the word "imminent was introduced because of the suggestion made by Lord Hewart C.J. in R -v Daily Mirror; ex paste Smith [1927] 1 KB 845. It is, however, an imprecise word by which to mark out a period of time. And it seems uncertain whether the imminence of the event is determinable solely by what was expected at the time of the publication, or is to be judged by what in fact occurred. The only suggestion I have seen as to the effect of the Act in this respect is in the annotation of it in Halsbury's Statutes of England 2nd Edition volume 40P.218. There it is said "proceedings may be imminent where, for example, no one has yet been charged with a crime but an arrest is hourly expected". But the only authority for this is an utterance in Parliament, and what a Lord Chancellor, speaking in Parliament says in his legislative capacity, can hardly be used by a court to interpret a statute. The Act may allow courts in England to take a step that 1 think we cannot take. It may, by an indirect approach, have thus altered the law there. But it has no application in Australia. Here the, law, as I understand it, is that matter published in a newspaper concerning a person against whom no proceedings are pending cannot be a contempt of court. That does not mean however, that a prejudicial matter that is not summarily punishable as a contempt can be published with impunity. The, common law misdemeanour constituted by conduct tending to pervert the course of justice does not, it has been held, depend upon there being proceedings presently pending; R -v- Sharpe and Stringer [1938] 1 All ER 48;”

It can be seen from these quotations that the proposition put by the Director of Public Prosecutions in this case was comprehensively and unanimously rejected by the High Court of Australia forty years ago.
Reliance was also placed by the Director of Public Prosecution on a number of more recent English decisions and I must now turn my attention to them.

The English Cases
Two English decisions in particular were cited and call for consideration. They are both decisions of two judge divisional courts of the Queen's Bench Division.
The first is Attorney General v. Newsgroup Newspapers plc [1989] QB 110. The second is Attorney General v. Sport Newspapers Limited and Ors [1991] 1 WLR 1194. I will consider each in turn.
In Attorney General v. Newsgroup Newspapers the court was dealing with an application by the Attorney General for the punishment of the respondents for common law contempt of court. The facts were that the family of a girl, aged eight, alleged that she had been raped by a doctor. After an investigation by the police, the county prosecuting solicitor, on advice from counsel, decided that there was insufficient evidence to bring a prosecution. The editor of "The Sun" newspaper authorised the publication in March, 1986 of articles whose headlines and contents referred to the child's rape by the doctor. The editor also arranged for financial help to be provided by the respondent company which was the proprietor and publisher of the newspaper provided that the solicitors instructed by the child's mother brought a private prosecution. In May, a private prosecution was brought and subsequently in the Crown Court the doctor was acquitted of the offence.
Although the events giving rise to the application occurred subsequent to the coming into force of the Contempt of Court Act, 1981 it was expressly conceded by counsel for the Attorney General that the articles in respect of which complaint was made were not capable of amounting to contempt under the relevant statutory provisions. They did however argue that they were contempts at common law and furthermore that common law contempt can be committed in relation to proceedings which have not yet commenced. In dealing with this issue Watkins L.J. who delivered the leading judgment said 

"A further and important issue has yet to be resolved. It arises from (respondent counsel's) submission that the respondent cannot be in contempt unless the conduct complained of was carried out at a time when proceedings were either pending or imminent. For the law of contempt to apply, a time requirement must, he says, be satisfied. It is not here satisfied, it is submitted, because when the articles were published it was beyond doubt that proceedings were in fact not pending, and on authority it cannot be said again that they were not imminent. "

Having regard to this statement it appears that it was conceded by counsel acting on behalf of the respondents that at common law a contempt might be committed even if proceedings were not pending. All that was required was that they should be imminent.
There was then a consideration of what is meant by "imminent proceedings" - a concept described as admitting of no easy definition.
Watkins L.J. goes on
"The circumstances in which a criminal contempt at common law can be committed are not necessarily, in my judgment, confined to those in which proceedings are either pending or imminent `an imprecise word by which to mark out a period of time, per Windeyer J. in James v. Robinson [1963] 109 CLR 593, 618. The common law surely does not tolerate conduct which involves the giving of encouragement and practical assistance to a person to bring about a private prosecution accompanied by an intention to interfere with the course of justice by publishing material about the person to be prosecuted which could only serve to and was intended to prejudice the fair trial of that person. This is especially so where the publisher of them makes it plain that he believes the person referred to in the articles is guilty of serious crime, is deserving of punishment for that and that he has committed some other similar crime ".

It is clear that the facts in this case were very different to those with which I am dealing here. But more to the point it appears that the case was decided upon a concession having been made to the court by counsel for the respondents that it was possible to have a contempt of court in circumstances where proceedings were merely imminent. No such concession is made in the present case. Insofar as there is a dictum from 'Watkins L.J. to the effect that at common law a criminal contempt can be committed in circumstances not necessarily confined to those in which proceedings are either pending or imminent, it goes even further than what is sought to be done here. But it does so in circumstances where the concession just mentioned was made. The case is also interesting by reason of the fact that the short passage quoted from James v. Robinson is the only mention of that case in the judgment. No further reference still less analysis of that decision is carried out.
The second case involving Sport Newspapers was also decided subsequent to the coming into force of the 1981 Act in England. The facts were that a schoolgirl disappeared on her way home from school on the 8th November, 1988. A person who lived nearby and who had previous convictions for rape and other sexual offences suddenly left the area on the _following day. On the 11"' November the. police _held a press conference seeking public help in tracing that person. Journalists were warned at the press conference and on the following day that publication of that person's previous convictions would be likely to prejudice future criminal proceedings. The editor of "The Sport" newspaper authorised the publication of an article giving details of the person's record. These were :published on the 16th November, 1988. Two days later justices issued a warrant for the arrest of the person for the murder of the girl. The Attorney General applied for the publishing company and the editor to be held in contempt of court. The application was dismissed because it was held that since at the time of publication proceedings against the person in question were not "active" within the meaning of the 1981 Act, the publishers and editor could only be liable for contempt under the common law as preserved by s.6(c) of the Act. The court went on to hold that common law contempt was committed if there was publication of an article which caused a real risk of prejudice to the due administration of justice and it had been published with a specific intent to cause such a risk to the administration of justice. As such had not been shown there was no contempt of court.
There were two judgments delivered in the divisional court. One was by Bingham L.J. (as he then was). In dealing with Attorney General v. Newsgroup Newspapers he said that the court in that case
"expressly recognised that it was extending the boundaries of contempt as previously understood." He went on "It is a decision with very, serious implications in those cases, perhaps increasingly, where reporters are concerned to highlight an alleged crime, to point an accusing finger at an identified culprit and to stimulate a demand for prosecution. L' also had the effect of enlarging a quasi criminal liability in afield very recently considered by parliament. Whether the decision would have been reached had the present point been taken and argued, had the ratio of James v. Robinson been relied on and had Hall v. Associated Newspapers Limited been cited, it is idle and would be wrong to speculate. In a matter of this nature it is very desirable that the law should be clear so that it may be understood and observed. I am quite satisfied that we should not be justified in departing from the rule so recently and unambiguously laid down in this court ".

I read this final sentence as a reference to the rule which came about as a result of the Newsgroup decision which, of course, it is accepted extended the law. However Bingham L.J. made it clear that possibly a different view would have obtained had the ratio of James v. Robinson been relied on. This underscores the fact that the possibility of contempt being committed when proceedings were imminent was conceded in the Newsgroup case. The passage just cited also raises very considerable question marks over the correctness of the decision in the Newsgroup case. Whilst Bingham L.J. was content to let matters lie for the sake of continuity and clarity Hodgson J. who sat with him displayed no such willingness.
Hodgson J. also delivered a lengthy judgment concurring in the result with Bingham L.J. He however conducted a detailed analysis of the English authorities prior to the Contempt of Court Act of 1981. He concluded his researches as follows
"Prior to the Contempt of Court Act, 1981 there were therefore many judicial dicta to the effect that, whenever either civil or criminal proceedings were imminent, publication of prejudicial matter in respect of those proceedings was a contempt of court. But there was no decision to that effect in English law nor had any attempt been made to commit for contempt when the publication was not in respect ofpending proceedings. Therefore not only had the courts never had to decide the issue but they had also never had an opportunity of considering what, in this context, "imminent" meant".

The judge then went onto consider the views expressed by the committee under the chairmanship of Phillimore L.J. which considered any changes that might be required relating to contempt of court. He quoted the following passage

"Uncertainty as to when the law applies
A particular cause for anxiety on the part of the press is the uncertainty as to the time when the law of contempt applies. In relation to criminal proceedings, in particular, this anxiety has increased in England and Wales since the opinions expressed in the Court of Appeal in R v. Savundranayagan [1968] 1 WLR 1761 per Salmon L.J. at p.1764 suggested that the strict law of contempt might apply before proceedings begin, provided they appear to be imminent: and in Scotland since the opinion in the High Court of Justiciary in Stirling v. Associated Newspapers Limited [1960] JC 5 per Clyde L.J.G. at p.10-11, which suggested that publication could be a contempt once the criminal authorities had started to investigate a crime. In R. v. Beaverbrook Newspapers Limited [1962] NILR 15, a Northern Irish case, publication before proceedings had begun was held to be a contempt on the ground that proceedings were imminent; this is the only case of which we are aware where this opinion has actually been applied. If it is right that the law of contempt can apply when proceedings are "imminent ", what period does that cover? In the second reading debate on the Administration of Justice Bill in 1960, the Lord Chancellor said the word imminent covered the situation where "an arrest is hourly expected", but that expression of opinion was not authoritative, and the remarks in the Savundranayagan and Stirling cases suggests that it covers a much longer period. The view was pressed on us that these uncertainties have an unfortunately inhibiting effect upon the press and that it is of great importance to those who are concerned with public communication to be given more definite guidance. Ire bulk and weight of evidence we have received leave us in no doubt that this is so ".               
Hodgson J. went on to consider the committee's recommendation which was to the effect that in criminal proceedings the period should begin to run when an accused person was charged and in civil proceedings when the case had been set down for trial. The committee recommended that publication intended to pervert or obstruct justice in particular proceedings should be capable of being dealt with as a contempt of court but "only if the proceedings in question have started and have not yet been finally settled or concluded".
He then went on and considered the Beaverbrook case and expressed the opinion which I have already cited in an earlier part of this judgment. He then considered James v. Robinson as representing the law in Australia and in turn considered the law in Scotland. He then considered the various text books on the topic before turning to the provisions of the Contempt of Court Act of 1981. That Act of course made provision for a new strict liability rule which is applicable in respect of proceedings which are "active" within the meaning of s.2. The starting points for proceedings becoming active are set out schedule 1 to the Act.
Having considered the terms of the Act, Hodgson J. expressed -the point of principle as follows
"It seems to me that the principle underlying the arrogation to themselves by the judges of a right to deprive a person of the right he would otherwise have to trial by jur y and, by a summary procedure, punish him, lies in the need for them to have available machinery by which, speedily and effectively, they can protect the proceedings over which they have control. In respect of criminal proceedings they should be able to protect the right to a fair trial of those who have entered their jurisdiction and protection. In respect of civil proceedings the litigants are entitled to have their proceedings likewise protected'.
Finally Hodgson J. considered Attorney General v. Newsgroup Newspapers plc. In the course of his consideration of that decision he said
"Despite the fact that James v. Robinson 109 CLR 593 was cited by counsel for the respondent company it does not seem to have been argued that publication contempt was limited to pending proceedings. No reference was made to the earlier cases which I have cited save R v. Parke [1903] 2 KB 432 nor was mention made of the Scottish case of Hall v. Associated Newspapers Limited [1978] SLT 241 and Watkins L.J was persuaded that the vagueness of the concept of imminence was a merit rather than a disadvantage ".
Later Hodgson J. said of the Newsgroup case that it
"was undoubtedly complicated by the fact that there was not only publication of material but also active support given to the proceedings which the newspaper's editor wanted to happen. But it is plain authority for the proposition that publication of material prior to proceedings being pending can amount to publication contempt. In my judgment, as I have tried to show, that was a wrong decision. It is also a decision which has implications for the media which I am not sure have yet been appreciated...	I do not think that the ambit of the summary procedure for publication contempt should be widened. The criminal law should be left to deal with offences of perverting the court of justice. Judges should not find guilt and punish unless it is necessary for the effective control of active proceedings. If contempt be the Proteus of the common law then for my part I would hope that his repertoire will not be increased... I am convinced that the decision in Attorney General v. Newsgroup Newspapers was wrong and, were it necessary to do so, I would refuse to follow it".

The high water mark of the Director of Public Prosecutions case before me was the decision of the divisional court in the Newsgroup case. That decision has the many imperfections which I have already pointed out. It seems to me to have been decided on a concession, to contain no analysis whatsoever of James v. Robinson, no reference to the earlier cases considered by Hodgson J. in his decision in the Sport Newspapers case and to regard vagueness in the concept of imminence as being a merit rather than a disadvantage. When subsequently considered by a divisional court differently constituted many questions were raised as to its correctness with Hodgson J. in plain words making it clear that he regarded it as a "wrong decision".
Conclusion
Faced with these authorities I concluded that the law in this jurisdiction was correctly stated by O'Hanlon J. in State (DPP) v. Independent Newspapers. His views were entirely consistent with what I consider to be the most sophisticated analysis of the topic which is contained in the decision of the High Court of Australia in James v. Robinson.
I do not consider the Beaverbrook decision in Northern Ireland as being one which was based on the common law. Rather it gave effect to the statutory provisions of the Administration of Justice Act, 1960 which altered the common law by extending it to encompass imminent proceedings.
The two English decisions from the divisional court are not ad idem. The best analysis of the common law position is in my view carried out by Hodgson J. who came to the same conclusion as did O'Hanlon J. in this jurisdiction. He made it clear that he would not follow the Newsgroup decision. Neither will I and thus prefer it to the views of O'Hanlon J. in Ireland, the unanimous judgment of the High Court of Australia and the judgment of Hodgson J. in England.
Having concluded that what occurred here is not at law a contempt of court punishable summarily I am not to be taken as giving the slightest support still less approval to the publications which took place in this case.
The facts in the present case demonstrate in concrete terms the problem in this area identified by the Law Reform Commission in 1994. With no legislation in place the Director of Public Prosecutions invited the court to bridge the gap by adopting his formula so as to extend the courts summary jurisdiction in order to punish publication contempt when proceedings are `imminent'. The adoption of such a formula by the court would give rise to huge uncertainty. (Would for example proceedings be `imminent' :in circumstances where a person is arrested then released and a file sent to the Director of Public Prosecutions?) It could lead to the possible undue cramping of the media in their coverage of public affairs and newsworthy events thus improperly interfering with the freedom of the press.
If publications of this type are to be treated as contempts of courts where they are made at a time when the persons against whom they are directed have not "entered the jurisdiction and protection " of the courts such will have to be provided for by legislation.
The powers-that-be in this regard must be so aware for they are already in receipt of the report from the Law Reform Commission sent to them over eight years ago. They are also aware of the views of Keane J. expressed in 1999 that the law in this area is in many respects uncertain and in need of clarification by legislation (Kelly v. O'Neill [2001] IR at 374.) I add my voice in support of the need for legislative intervention in hope rather than expectation.