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Cite as: [2004] IEHC 420, [2005] 3 IR 336

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Neutral Citation No: [2004] IEHC 420

THE HIGH COURT

[Record No. 2001/49 MCA]

BETWEEN

COLM MURPHY

APPLICANT

AND

THE BRITISH BROADCASTING CORPORATION

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSEUCTIONS

NOTICE PARTY

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 21^st day of December 2004.

Questions for Decision:

Both the applicant and the respondent, in these proceedings, have agreed that this court should determine as preliminary issues the following two questions:

"1. (a) Is the respondent estopped by the decision of the Special Criminal Court made on 26^th day of February, 2001 (sic) or by its stance before that court from arguing that the applicant does not have locus standi to bring these proceedings in the High Court.

(b) if the respondent is not so estopped, does the applicant have locus standi to bring these proceedings in the High Court?

2. Is the respondent entitled to have these proceedings tried with a jury?"

The actual date of the decision referred to was not in fact the 26^th day of February, 2001, the date when final argument was made, but rather was the 16^th of March, 2001, when the judgment of that court was delivered by the presiding judge namely Mr. Justice O'Donovan.

In a separate and unconnected action in which the respondent's counsel also appeared, similar questions of law arose with the result that the decision in this case awaited the determination in that action. As it happened that matter I am informed has been resolved by the parties and therefore there is no judgment delivered by the court of trial.

Background

On 15^th August, 1998, an atrocity, planned by utmost evil and wicked minds, executed with profound depravity and perpetrated with inhuman savagery, caused the deaths of 31 people, including unborn twins, and otherwise gravely maimed multiple other innocent people. It was and is known as "the Omagh Bombing". On 5^th October, 1999, the applicant in this motion, Mr. Colm Murphy, was charged with two offences directly connected with this horrific slaughter. The first alleged that between 13^th and 16^th August, 1998, at Dundalk in the county of Louth, he, as an accused person, unlawfully and maliciously conspired with others to cause by an explosive substance, an explosion of a nature likely to endanger life or cause serious injury to property whether within the State or otherwise. The second charged the applicant with being, on 14^th August, 1998, a member of an unlawful organisation styling itself the Irish Republican Army otherwise known as Óglaigh na hÉireann. Whilst these charges were pending before the Special Criminal Court and at a time when the trial of the applicant was fixed for 16^th January, 2001, the respondent ("the BBC") decided to broadcast a special Panorama programme on the bombing. It is that programme, and its pre-broadcast publicity, as well as related material on its website, which gives rise to this motion and to the preliminary issues above identified.

In late September 2000 the applicant, as he left Dundalk Garda Station, was accosted and asked questions by a film and sound crew of the BBC. This was part of its then intended Panorama film which was scheduled for transmission on 9^th October, 2000. On 4^th October "The Star" newspaper, which is circulated within this jurisdiction, published, on page 1 of that edition under the heading "Omagh Bombers unmasked – Top TV show to name mass murderers", an "exclusive" about this programme. The report continued on inside pages with Mr. Murphy being named as a person facing charges in connection with the bombing.

Being concerned that the proposed programme could possibly prejudice the trial of their client, Messrs E. Hanahoe & Company Solicitors wrote, without satisfaction, to the BBC by way of letter dated 6^th October, 2000. On the 9^th October immediately prior to its transmission, the Northern Ireland Human Rights Commission failed in its High Court attempt to prevent the programme proceeding.

As scheduled, the programme was broadcast by the respondent corporation and was received extensively in this and in the neighbouring jurisdiction. It was repeated at 12.25 a.m. on Friday 13^th October, and a transcript of its detail, together with additional material, were placed on the BBC's internet website. During the course of the transmission it was stated inter alia that Mr. Murphy was a seasoned terrorist with previous convictions and that he had admitted to the gardaí that, on the eve of the bombing, his and another person's mobile phone were given to a named individual in the knowledge that the same "were being used to move bombs". A great number of other matters were also mentioned with repeated and detailed references being made to both the direct and surrounding circumstances of the bombing and the subsequent investigation thereof by the relevant authorities.

Proceedings before the Special Criminal Court

On 9^th January, 2001, Mr. Murphy the applicant issued a notice of motion against the BBC seeking the following relief:-

"(1) Leave to issue an order of attachment and/or committal against the British Broadcasting Corporation, its directors, managers, servants or agents pursuant to O. 44 r. 3 of the Rules of the Superior Courts, 1986 as applied by s. 41(4) of the Offences Against the State Act, 1939.

(2) Subject to the order sought at para. 1 an order of attachment and/or committal against the British Broadcasting Corporation its directors, managers, servants or agents pursuant to s. 43(1)(e) of the Offences Against the State Act, 1939.

(3) Directions as to the remedying of the effects of the contempt of court committed by the British Broadcasting Corporation, its directors, managers, servants or agents herein.

(4) Further and other relief."

This was grounded upon an affidavit of Michael Farrell sworn on 9^th January, 2001. In that affidavit it was claimed inter alia that, by the programme and the associated articles, the BBC sought to and did influence public opinion on Mr. Murphy's trial. Furthermore it was suggested that the published material proceeded on the assumption of his guilt, that its content had pre-judged the trial and that its content had conveyed that pre-judgment to the general public. Moreover, potential witnesses and persons generally were influenced in a manner prejudicial to the applicant. These and other matters led Mr. Farrell to the opinion that the accused might not receive a fair trial.

A similar motion issued against Associated Newspapers, who are the owners of the "Daily Mail", in respect of which complaint was made about articles which appeared on 28^th October and 5^th December, 2000. Whilst this company was of course a party to one of the motions heard before the Special Criminal Court it did not in any separate way participate in the proceedings before this court. In any event, no point of relevant distinction exists between it and the BBC. Accordingly, this judgment effectively applies to the BBC as the sole respondent and deals with the particular motion moved against it in this court.

The replying documentation was based upon two affidavits filed by Mr. Michael Kealey, from the firm of McCann Fitzgerald Solicitors, who were retained on behalf of the BBC. The first such affidavit was sworn on 26^th January, 2001, and the second on 7^th February of that year. In the initial evidence he asserted a belief that his client was entitled to a trial with a jury on the contempt application, and that there were a number of factual matters which required to be resolved. He went on to deny that the BBC had any intention of influencing public opinion on issues material to the applicant's case, or of pre-judging his trial or of pre-determining his guilt. Moreover, Mr. Kealey claimed that the intention of his client was solely designed to communicate, to the public and to the victims of the tragedy and their families, important information and genuinely held opinions on matters of very considerable public interest, which matters had already been the subject matter of extensive public debate. In his second affidavit he identified what he considered to be a number of important factual matters which required resolution by a jury, one of which was the question of mens rea.

At a preliminary hearing before the Special Criminal Court on 29^th January, 2001, counsel on behalf of the respondent argued that the High Court, and not the subject court, was the more appropriate venue to determine this motion. Counsel also asserted his client's right to a trial with a jury. The application, as was intended, was then adjourned to 12^th February. On that occasion, apparently without any previous notification but having been served with the proceedings, the D.P.P. was represented, and sought permission to argue that the applicant had no standing to initiate or prosecute what he described as "that offence". As Mr. Murphy was not a common informer, as that term should be understood, the only person who could prosecute a public offence was the D.P.P. Although it was not quite clear at that time whether this submission was intended to cover both the Special Criminal Court and the High Court or simply the former, a point later clarified, the issue raised was of sufficient importance that despite some misgivings the court agreed to adjourn the full hearing of the application until 26^th of February, 2001. In so doing it directed that written submissions should be filed and exchanged between the parties and also requested the applicant's solicitor to write to the Director and to enquire of him whether, in the event of the court ultimately finding in his favour would he in the public interest, either take over the existing motion or initiate fresh proceedings of his own. That inquiry was met with a polite but firm refusal on both counts.

The substantive hearing commenced on 26^th February, 2001. Mr. Thomas O'Connor SC, appearing for the D.P.P., submitted that:-

given,

(a) the nature of the complaint in question,

(b) the true position of a common informer, as preserved by Article 30.3 of the Constitution, being that that since 1937 any continuing role for such a person was confined to courts established under Article 34, and

(c) the statutory creation and thus the limited nature of the Special Criminal Court, as permitted by Article 38.3 of the Constitution,

the resulting situation was that the applicant did not have locus standi to maintain these proceedings and that, save perhaps for the court itself, the only other person who could so do was the D.P.P. In addition counsel on this occasion made it quite clear that his submission on this front was focused exclusively on the Special Criminal Court. In fact in his clear view it was perfectly open for Mr. Murphy to bring these proceedings in the High Court which undoubtedly would have jurisdiction to deal with the matter.

Decision of that Court:

Having heard what all the parties present wished to say, the Special Criminal Court found itself in a position to give an ex tempore ruling on this point. Having quoted s. 45(1)(e) of the Offences Against the State Act, 1939, which bestows upon that court "jurisdiction and power to punish, in the same manner and in like cases as the High Court", all persons found guilty of contempt by that court whether or not committed in the presence thereof, O'Donovan J., speaking for the court, concluded that since the High Court had jurisdiction then likewise, under the section mentioned, the Special Criminal Court had. Accordingly there existed in his view a parallel jurisdiction in both courts.

Immediately following these conclusions, Mr. Feeney SC on behalf of the respondent raised the question of "venue", and secondly he re-asserted his client's entitlement to a trial before a jury. Suggesting that the former matter should be disposed of first, a viewpoint shared by all, both the applicant and the BBC then made submissions in respect thereof. These submissions centered on which of either court would be the more appropriate one. Judgment was reserved and delivered on 16^th March. The decision of the court was to the effect that, whilst it had jurisdiction to determine the issues in its own right, nevertheless in its opinion the High Court was the more convenient and appropriate venue for the determination of the subject issues. This decision and the resulting order of the 19^th of November, 2001, concluded the matter before the Special Criminal Court. There was neither an appeal therefrom nor any review of its findings.

Proceedings before the High Court

As there are no rules of court providing for the transfer from the Special Criminal Court to the High Court of any matter standing before it, the applicant, without objection, decided to re-issue these proceedings in the High Court. That occurred with the issue of a motion dated 22^nd June, 2001. In essence, for present purposes, it can be said that the essential relief claimed was similar though not identical to that previously sought, with the parties also agreeing that the original replying affidavits should be taken as applying. In addition, however, to the jury point, it emerged from further documentation that the BBC was also submitting that the applicant had no locus standi to bring these proceedings before this court and that the judgment of the Special Criminal Court could not be read as having so decided this point against it. This suggestion of re-opening the standing point was not only denied by Mr. Murphy but was responded to by an argument on his behalf that by reason of what transpired in the proceedings before the Special Criminal Court, the respondent could not now dispute the applicant's entitlement to proceed.

This background leads to the first question in the preliminary issue.

Question 1

This first question raises two issues, namely, the effect of the decision of the Special Criminal Court given on 16^th March, 2001, and secondly, having considered the position adopted by the BBC before that court, to then identify what legal consequences follow in the context of its attempts to argue the locus standi point before this court.

On behalf of the applicant it is submitted that by reason of its conduct, including its submissions, and by virtue of the Court's decision, the respondent is deprived of any right to raise the issue of standing. It is said on his behalf that the BBC is estopped from denying that this court has jurisdiction to deal with the motion and that Mr. Murphy has a legal right to maintain it. It is further said that the respondent adopted the submissions of the D.P.P. on the issue and that as a result it is bound in the same way as the Director is by the judgment of the court. That judgment it was stressed was not appealed or otherwise reviewed. Accordingly it has the status of a final and binding one as between all parties including the respondent. The People (Director of Public Prosecutions) v. O'Callaghan [2001] 1 I.R. 584 was referred to in support. In addition, it is argued that by virtue of its conduct the respondent is likewise prohibited from making the argument under discussion. Several portions of the transcript were relied upon as illustrating the position adopted by the BBC during the final hearing of the 26^th February, 2000. That position, as repeatedly outlined by counsel on its behalf, was to the effect that whilst a concurrent jurisdiction existed, this court nevertheless was the more appropriate and convenient one for Mr. Murphy to pursue and to ventilate the basis of his complaint. It cannot now resile from these representations. Accordingly the respondent is by conduct estopped or alternatively by the same conduct is committing an abuse of process.

Counsel for the BBC takes issue with this stance. He says that the decision given on 16^th March, 2001, dealt exclusively with the position of the Special Criminal Court and did not determine that this court had jurisdiction or that in the process or separately, Mr. Murphy could personally initiate this type of criminal proceeding. It was in his view wrong to say that the decision contained any express finding with regard to the High Court. The real issue before the Special Criminal was one of jurisdiction and not one of locus standi. It is the latter which the respondent now wishes to argue and to do so in a much more general way than the D.P.P. did before the Special Criminal Court. It is submitted that the relevant extracts from the transcript have been taken and used out of context and that since the respondent effectively played no part in the issue determined by the Special Criminal Court, it could not be bound thereby either through the doctrine of estoppel or otherwise. McCauley v. McDermott [1997] 2 I.L.R.M. 486 was opened as indicating the essential ingredients of this doctrine. It was claimed that it could not apply to the BBC in the present circumstances as the respondent was not a "party" to the issue determined and secondly that such determination was based on a concession which also deprived the required status.

The jurisdiction of the Special Criminal Court which is relevant to this issue, is contained in s. 43 of the Offences Against the State Act, 1939. Its material provisions read as follows:-

"43 – (1) A Special Criminal Court should have jurisdiction to try and to convict or acquit any person lawfully brought before that court for trial under this Act, and also shall have the following ancillary jurisdictions, that is to say:-

(a) …

(b) …

(c) …

(d) …

(e) jurisdiction and power to punish, in the same manner and in the like cases as the High Court, all persons whom such Special Criminal Court finds guilty of contempt of that court or any member thereof, whether such contempt is or is not committed in the presence of that court:

(f) …

(2) …"

As part of the court's ruling on the D.P.P.'s submissions above referred to, Mr. Justice O'Donovan, having recited the arguments made on behalf of the notice party (D.P.P.), said, at page 74 of the transcript:-

"In the view of the court, all of these arguments ignore the irrefutable fact that s. 45(1)(e) of the Offences Against the State Act, 1939 specifically provides that the Special Criminal Court has:

… jurisdiction and power to punish, in the same manner and in like cases …

We would underline and emphasise 'in all like case'.

'… as the High Court, all persons whom such a Special Criminal Court find guilty of contempt of court or any member thereof, whether such contempt is or is not committed in the presence of that court'."

In that regard it was conceded on behalf of the D.P.P. that Mr. Murphy was entitled by law to vindicate the complaints which he is making before this court in the High Court. If that is so, then it is the opinion of this court that in this court such a complaint would be a like case within the meaning of s. 45 as that which Mr. Murphy could bring in the High Court. Accordingly it is the view of this court that Mr. Murphy has, indeed, locus standi to ventilate his complaint in this court".

In interpreting and applying this judgment it is important in my view to appreciate that whilst the D.P.P.'s submissions related to the Special Criminal Court, one aspect of them was Mr. Murphy's legal capacity to move the motion. A second undoubtedly was an attack on the type of contempt which the court, being a creature of statute, could deal with. In that regard one could describe these elements of the submission as being on "locus standi" and "jurisdictional" issues respectively. However, when referring to the High Court, it is my firm view, based on a consideration of the transcript, that this technical distinction in terminology was not always maintained. On many occasions the term "locus standi" and "jurisdiction" were referred to as having the same meaning and consequence, namely that the applicant could fully pursue his claim in this court. It was never suggested that the High Court lacked jurisdiction in its own right or because of Mr. Murphy's standing or indeed for any other reason. Nor was it ever said that the applicant had no right to move in the High Court. In fact, not later than the commencement of the hearing held on 26^th February it was evident, by express representation delivered in the same breath, that the High Court had full jurisdiction on the matters at issue and that likewise Mr. Murphy had a full right and entitlement to maintain and vindicate his complaint before that court. Accordingly on the question of standing, I reject any submission from the respondent which now seeks to make any meaningful distinction between jurisdiction and locus standi. In my view this was also the clear understanding of and the position adopted by the Special Criminal Court.

In McCauley's case, Keane J., speaking for the Supreme Court, referred with approval to Carl Zeiss Stiftung v. Rayner and Keeler Limited [1967] 1 A.C. 835, where at p. 935 of the report the essential features of issue estoppel were in the view of the learned judge "helpfully summarised". These were described as follows:-

"The requirements of issue estoppel still remain

(i) that the same question has been decided;

(ii) that the judicial decision which is said to create the estoppel was final; and

(iii) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or the privies"

It is clear that these said elements were outlined in a civil action, and as a result if the doctrine otherwise applied in criminal proceedings the phraseology used would require a good deal of modification.

This very issue was lately considered by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. O'Callaghan [2001] 1 I.R. 584. The court in its judgment referred to a number of earlier decisions where some relevant principles were set out. In Kelly v. Ireland [1986] I.L.R.M. 318 O'Hanlon J. held that if in the course of a criminal trial a clearly identifiable issue had been decided against a party to those proceedings and if a judgment explaining the reasons therefor had been delivered, then such decision could give rise to an issue estoppel in later civil proceedings involving the same party. That view was endorsed by Lardner J. in Breathnach v. Ireland [1989] I.R. 489. These decisions are therefore relevant authorities but are confined to a situation where the subsequent proceedings were civil in nature. Where such proceedings however were not civil but criminal, the case law on this topic was inconclusive until O'Callaghan. In that case Hardiman J., giving the judgment of the Court, at p. 594 of the report said "there appears to be no reason in principle suggesting that a discrete, clearly identifiable issue decided in a criminal trial should not give rise to an estoppel in a subsequent criminal trial, if it is capable of giving rise to an estoppel in a civil action." Accordingly if the elements of the doctrine are otherwise present, then its consequences may also apply where both sets of proceedings are criminal in nature.

In my view it is evidently clear that the Special Criminal Court rested its conclusion on the provisions of s. 45(1)(e) of the 1939 Act. Such a conclusion had to be grounded upon a finding that the High Court had "jurisdiction and power" to deal with the specific contempt application before it, and that such application was a "like case" as could be dealt with in the High Court. In my view, without such a finding
s. 45(1)(e) of the 1939 Act could not apply, and as a result the Special Criminal Court could not have rested its jurisdiction on that basis. Only if the High Court had jurisdiction, that is over the subject matter and the parties, could this statutory provision operate so as to confer power on the Special Criminal Court. Accordingly in my opinion there is no doubt but that the judgment of the Special Criminal Court was predicated on the conclusion that this court had such jurisdiction, in the manner in which I have described.

I say "conclusion" rather than finding to allow for the possibility that the submission of the D.P.P., with regard to the competence of and the applicant standing before this court, could be described by some, as a concession. For my part I would be more inclined to regard it as part of his submissions, which of course the court could properly take into account. Even, however, if the D.P.P.'s view be truly a concession, it seems to me to be implicit from an overall analysis of the transcript and from the judgment, that most probably this conclusion was not simply based on such a concession, which of course the court could disregard if it so wished, but rather was in itself an independent finding of that court. In any event as there was no appeal against the decision of that court, and since no form of judicial review proceedings were taken, the judgment of the court stands as its final determination on this issue.

In my opinion, it is possible that the doctrine of "issue estoppel" is capable of applying in this case. A clearly identifiable issue namely the jurisdiction of the High Court, which is not in dispute, and the standing of Mr. Murphy before that court, were raised in the proceedings before the Special Criminal Court and determined by its judgment which gave reasons therefor. Such proceedings can be described as criminal in nature as can the existing proceedings before this court. The fact that the initiating document is a notice of motion in both cases is in my view irrelevant.

And the BBC was a party to the earlier proceedings and apparently adopted the arguments of the D.P.P. At least that is what his counsel said in the presence of and without objection from Mr. Feeney S.C. Accordingly some case can be made for its application to this matter.

As against this however there are clearly a number of serious problems remaining with the doctrine. Firstly it could be said that in reality the present notice of motion is part of the "same proceedings" as were heard before the Special Criminal Court; secondly there is the debate on the making of a concession and its consequences, thirdly there is the possibility that the BBC did not in fact adopt the argument of the D.P.P. and, fourthly one cannot fully discount the possibility of some confusion existing between the role of the respondent and the notice party before the Special Criminal Court.

However there are even more significant difficulties. The first could be described as fundamental. The discussion above outlined proceeded on the assumption that the role which issue estoppel plays in the substantive criminal law, is equally capable of applying to proceedings, which though undoubtedly criminal in nature, are nevertheless born out of contempt allegations. This matter is further discussed later in this judgment. Secondly, the Supreme Court decided in the Corporation of Dublin v. Flynn [1980] I.R. 357 that the doctrine could operate only for the benefit of an accused person and not for the prosecution. Even, therefore, if issue estoppel did apply to contempt proceedings it would seem that Mr. Murphy is undoubtedly not an accused person but rather the respondent is. And thirdly it is my considered opinion that in reality the respondent did not adopt the D.P.P.'s submissions on the standing issue before the Special Criminal Court; rather it is my belief that despite having a full opportunity of so doing or of making separate submissions it remained mute. That therefore brings us into a difficult and uncertain area of estoppel which is one created by omission. Whilst undoubtedly the principle can be raised by way of omission its parameters in that regard are by no means clear cut. See the old case of Cox v. Dublin City Distillery (No. 2) [1915] 1 I.R. 345 at 372 and the only modern case which I can find on the point: Carroll v. Ryan [2003] 1 IR 309.

Accordingly for these reasons I am not prepared to hold that the BBC is prevented by way of issue estoppel from arguing the standing of Mr. Murphy in this court.

This view, however, whilst deposing of the estoppel point does not fully deal with the conduct issue. In fact I am firmly of the view that by reason of the overall position which the BBC adopted before the Special Criminal Court, it would be an abuse of this court to permit the respondent to now argue the question of Mr. Murphy's standing. This opinion of mine derives not only from the transcripts which are available, but also from the submissions filed on its behalf. These can be dealt with immediately. From a perusal of these documents it is immediately evident that this point, namely the inability of Mr. Murphy to maintain these proceedings, did not form any part of the BBC's legal armoury in defending this motion; certainly at the time of their composition, which pre-dated the 26^th February, 2001.

In addition, however, on the second factual aspect of this first question it is necessary also to refer in more detail to the transcript of the evidence heard before the Special Criminal Court. A similar task is not required in respect of the affidavits filed by the BBC in support of its position before that court. This is because even from a casual examination of such documents it is quite clear that there is no reference or mention to the locus standi point. This was, as stated above, raised for the first time in Mr. Kealey's affidavit of the 23^rd July, 2001.

Hearing of 12^th February, 2001

Immediately prior to the D.P.P.'s intervention on that occasion, Mr. Michael O'Higgins SC on behalf of the applicant outlined to the court what he felt were the issues between the parties. They were three in number. The first was described as "venue"; namely whether the Special Criminal Court or the High Court should determine the issue. The second dealt with the respondent's assertion of a right to have a jury trial and a third centred on the question of mens rea. In truth this question of intent was not a separate point, as the BBC's reliance upon it was to further their argument of having a trial with a jury.

Mr. Feeney SC was asked by O'Donovan J. as to why he had not made the locus standi point. Page 26 of the transcript contains the reply. He informed the Court that he would have to bring it to the attention of his clients, would have to obtain from them precise instructions and would require some time to act upon them. This response therefore clearly indicated that the BBC had no intention, at least up to that point in time of relying upon this point.

Hearing of 26^th February, 2001

When Mr. O'Connell SC had finished his submission on the standing point, counsel for the BBC sought to "identify what my position is in relation to this argument". He said that he had arguments which he wished to make to the court if it decides that it has a parallel jurisdiction with the High Court. Until that issue was determined Mr. Feeney SC, quite rightly in my view, felt that this "court venue issue" was premature for argument. Save for that observation the issue of standing was debated entirely between the applicant and the D.P.P.

Immediately following the judgment of the court, counsel for the respondent commenced his submissions on the question of venue. His argument, put very simply, was that though both courts had parallel jurisdiction nevertheless the High Court was for the reasons outlined by him by far the more convenient and appropriate forum to determine the matter. This point of view was entirely consistent with the written submissions filed on behalf of the respondent. In both the "outlying submissions" and the "further outlying submissions" it is in fact asserted that both courts have equal jurisdiction but the forum conveniens is the High Court. Therefore I could not accept in any way the suggestion that the foundation underlying these submissions was based on due deference to the judgment of the Special Criminal Court, as in my view the question of standing was never part of the respondent's submissions to that court.

During the course of his submission counsel made it clear on a number of occasions that if the Special Criminal Court should decide upon the High Court, that finding would not in any way amount to a denial of the applicant's entitlement to bring the matter before this court (page 77 of the transcript). At pages 96-98 it is acknowledged that a preference for this court would not be an interference with Mr. Murphy's right to pursue or ventilate his claim here. In fact it was claimed that his right to pursue that claim would be more fully satisfied in the High Court. The position of the BBC is in fact I think summarised in a closing passage from Mr. Feeney S.C., which appears at p. 108 of the transcript. It reads "therefore I say it is appropriate for you to decline to exercise the jurisdiction. I do not in any way say that this is an end of the matter. I recognise that in declining it, if you agree with me, that you would be recognising, and it was being recognised by all the parties that it is open to the applicant to bring the application he desires to bring in front of the High Court (sic)." If this is an accurate representation of the BBC's position, which I believe it is, being one determined prior to the standing issue, I can only conclude that though full opportunity for contrary argument was available, the respondent in full knowledge and with full deliberation accepted at all times the standing of Mr. Murphy to bring these proceedings in the High Court.

That being so it would be an abuse of the process to permit the Corporation to now re-open this issue. I would accordingly hold against it on this point.

However, and entirely without prejudice to this finding I do propose, following the submissions made, to offer a view on this question of standing.

The substantive issue of locus standi:

This issue, it was submitted by the respondent corporation, was not a jurisdictional one, properly so called, but rather an issue of locus standi. That is who can initiate, continue and progress to a conclusion, a complaint of contempt similar in nature to that which is the subject matter of this motion. A distinction can be made for this purpose between civil contempt, where it is acknowledged that private individuals can seek the assistance of the court, and contempt in facia curiae, where it is conceded that every court can summarily deal with such matters. However, neither of these situations are present in this case. Rather, the contempt in question, being that described at paragraph 57 below, is not one committed in the face of the court but is of a type which correctly be described as criminal in nature. As a result it is claimed that the only body which can move to a conclusion such a contempt is the D.P.P.

This submission is essentially grounded upon Article 30.3 of the Constitution which reads "all crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than the court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose". Read with that must be s. 9 of the Criminal Justice (Administration) Act, 1924, which provides that:-

"(i) all criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney General.

(ii) save where a criminal prosecution in a court of summary jurisdiction is prosecuted by a Minister, Department or State, or person (official or unofficial) authorised in that behalf by the law for the time being in force, all prosecutions in any court of summary jurisdiction shall be prosecuted at the suit of the Attorney General …".

It is therefore claimed that since the subject contempt could not be described as minor then in accordance with the provisions above quoted "the moving party has to be the D.P.P. who for relevant purposes replaced the Attorney General in 1974".

The case of the State (Ennis) v. Farrell [1966] I.R. 107 does not, it is said, assist Mr. Murphy. In that case the Supreme Court decided that Article 30.3 of the Constitution had no impact on the pre-1937 position of a common informer, and accordingly whatever rights such an individual had prior to that were unaffected. However, it is claimed that such a person had no right, at common law, to pursue a contempt complaint of a non-minor nature. Therefore the State (Ennis) does not enhance the position of the applicant.

In addition this case could also be distinguished on the basis that the decision of the court referred to the initiation of a prosecution by information or summons whereas in the present situation the originating document was a notice of motion.

By way of general argument it was submitted that the doctrine of contempt was designed to protect the public interest and that any violation thereof created what was described as a "public offence". That being the situation the only person authorised by law to vindicate such public rights was in the present context the Director of Public Prosecutions. The Society for the Protection of Unborn Children (Ireland) Limited v. Coogan & Ors [1989] I.R. 734 and the Irish Permanent Building Society v. Caldwell (Registrar of Building Societies & Ors) [1979] I.L.R.M. 273 were referred to as examples where this practice was applied.

In the specific case of a contempt situation, it was pointed out that the issue of whether a private individual could move a contempt matter was raised but left open in Re: MacArthur [1983] I.L.R.M. 355. In that case, however, it should be noted that Costello J. observed that up to then at least, all such applications both in Ireland and in England "in connection with pending criminal trials have been made by one or other of the law officers". Apart from de Rossa v. Independent Newspapers Limited [1998] 2 ILRM 293 and Kelly v. O'Neill [2000] 1 ILRM 507 there were no other cases in which this type of contempt has been initiated by a private individual. It is submitted that The State (at the prosecution of Commins) v. McRann [1977] I.R. 78 is not an authority favourable to a private individual in this regard and accordingly the reliance placed upon it by the learned judge in de Rossa was misguided. In addition, if a prosecution could be taken otherwise than by the D.P.P. great practical difficulties would follow, especially if, as the respondent also urged, it was entitled to a trial by jury. Where for example would a private individual commence the contempt process, at what stage would a jury be involved, who would empanel a jury and what issues would such a jury have to determine etc. These and other examples strongly militated against granting the applicant the standing which he seeks in this case.

Finally, reference was made to the position in the United Kingdom where confusion and uncertainty still remains. Dobson v. Hastings [1992] All E.R. 394 and Chief Constable of Leicestershire v. Garavelli [1997] EMLR 543 were cited, thereof not opened.

On behalf of Mr. Murphy it was submitted that there was no merit in the D.P.P.'s position and that it flew in the face of authority. It was immediately recognised by the applicant that the Director had power to move this application if he wished but that a request to so do was met with an unconditional rebuff. Accordingly if the primary submission on the question of standing was accepted by this court it would mean that the judicial arm of government in certain circumstances could be powerless. It was claimed that every court must have an inherent right to police the laws of contempt. Reference was made to Article 38 of the Constitution and also to the decision of Hanna J. in Attorney General v. O'Kelly [1928] I.R. 308. Moreover, every court dealing with criminal matters must ensure the integrity of the process and must take all appropriate steps to safeguard an accused person's right to a fair trial. That inherently involves the right of a person affected to move a contempt matter before that court and correspondingly a power in that court to deal with the matter. It would be an extraordinary position if, for example the Director, as the prosecuting agent in this case, could move the court if he decided but Mr. Murphy, as an accused person, in respect of the same matter could not. That would create an unacceptable regime of inequality, which would violate Article 38.1, and Article 40.3 of the Constitution as well as Article 6 of the European Convention of Human Rights; all of which created, as part of a fair trial inter alia the right of equality of arms. That would be seriously undermined if only the D.P.P. could initiate such matters.

It was also submitted that de Rossa is an authority against the BBC on this very point and further support can be obtained from the judgment of O'Higgins C.J. in State (D.P.P.) v. Walsh, [1987] I.R. 412 at p. 429. Finally it is said that MacArthur is distinguished by reason of the context in which the observation above quoted was made.

The substantive issue of Trial by Jury

This second question is the fundamental point raised on behalf of the British Broadcasting Corporation. It is claimed on its behalf that this allegation is a criminal offence at common law where no maximum punishment is specified and accordingly it could not be described as minor. Therefore at least prima facie it is entitled to a jury trial under Article 38.5 of the Constitution.

Although there have been a number of cases almost directly on this point since the passing of the Free State Constitution of 1922, it was not necessary in the respondent's view to deal with such cases at any length, as the point in its submission had been conclusively determined by the majority view of the Supreme Court in The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412. In that case, O'Higgins C.J. came to the conclusion that there was never a right to a trial with a jury irrespective of circumstances. That opinion however did not represent the position of the Court, for whom Henchy J. spoke. At p. 439 of the report the learned judge said:-

"When the major offence charged is contempt of court, and if there are live and real issues of fact (such as whether the accused committed the act alleged against him, or whether it was done with his approval, etc.), the accused has a prima facie right under Article 38.5 to a trial with a jury, thus entitling him to have those issues of fact committed to a jury for their determination. As at present advised, I do not find any other provision of the Constitution which would rebut that presumption. It would not seem to be compatible with the constitutional requirement of fundamental fairness of procedures, or with the equality before the law guaranteed by Article 40.1, if contempt of court, which carries with it the risk of a fixed but unlimited term of imprisonment or an unlimited fine, were the only major offence which is exempt from the requirement of a determination by a jury of the controverted facts.

But where the facts are admitted, or have been determined by a jury, or have been duly and properly decided by a judge not to be an issue, I consider that the question of whether those facts amount to a contempt of court charged, must be deemed to be a question of law to be decided by the judge, provided the judge is vested with the original jurisdiction necessary to try such a contempt of summary. This appears to me to be a necessary corollary of certain constitutional postulates, especially the guarantee in Article 35.2 that all judges should be independent in the exercise of their judicial functions and subject only to the Constitution and the law, and the implied but pervasive requirement that fundamental fairness of procedure should be observed. The latter requirement could not be observed when the question of whether a particular piece of conduct amounted to contempt of court had to be resolved by a jury."

Accordingly once there are "real and live issues of fact" in issue between the parties then it is for the jury to determine such matters and thereafter for the judge to enter a verdict of guilty or not guilty. As such issues exist in this case then under that decision the respondent is entitled to a jury.

De Rossa v. Independent Newspapers Limited [1998] 2 ILRM 293 was referred to as an authority for the submission that the learned judge, either by reason of precedent or otherwise independently, came to a conclusion that trial by jury was available where real and live issues of fact existed. The following passage from the judgment of Kinlen J. was open to this court. It followed a lengthy reference to the judgment of Henchy J. in Walsh and a recital of the passage which commences at the bottom of page 439 of the report. It reads as follows:

"Whilst 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 in contempt of court. This is a matter primarily of fact. 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."

It was suggested that the actual decision of no jury was reached because of the judge's particular opinion that motive was irrelevant and that therefore by implication there were no other issues of fact were raised in the case. In reality, however, it was claimed that Kinlen J. followed the decision in Walsh.

There are several such issues of fact remaining in the instant application. Many of these are set out in the affidavit of Mr. Kealey sworn on 7^th February, 2001, which is referred to at para. 8 above. In addition, however, it is part of the BBC's claim that an essential ingredient of the crime of contempt is mens rea. Though the traditional view was to the contrary, nevertheless it is at least arguable, according to the submission, that following the judgment of Keane J. in Kelly v. O'Neill this element is now necessary: see p. 538 of the reported decision. This question of mens rea is consistent with the approach adopted by the same judge on matters of strict liability, such as in the case of Shannon Regional Fisheries Board v. Cavan County Council [1996] 3 IR 267. Moreover whilst the law of contempt in England is essentially governed by the Contempt of Court Act 1981, nevertheless the issue of contempt at common law has been addressed in several cases including Attorney General v. Newspaper Publishing Plc. [1997] 1 WLR 926 where Lord Bingham C.J. made the following observation:-

"Both parties accept the test propounded by Sir John Donaldson M.R. in Attorney General v. Newspaper Publishing Plc. [1988] Ch. 333, 374-375. To show contempt, the Attorney General must establish, to the criminal standard of proof, that the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such an intent need not be expressly avowed or admitted, but can be inferred from all of these circumstances, including the forseeability of the consequences of the conduct. Nor need it be the sole intention of the contemptnor. An intent is to be distinguished from motive or desire; see per Lord Bridge of Harwich in R. v. Maloney [1985] AC 905, 926."

Therefore this requirement and the other matters previously identified, constitute in the respondent's view, real and live issues of fact which require determination before a jury.

In addition the provisions of Article 40.6.1.i of the Constitution and Article 10 of the European Convention on Human Rights were also relied upon. These deal with freedom of expression. Though, for the purposes of this case, the European Convention on Human Rights Act, 2003, is not directly applicable, nevertheless even prior to its enactment, the Convention has on several occasions been referred to in and taken into account by the Irish courts. Desmond v. Glackin (No. 1) [1993] 3 I.R. 1 is one such decision, as is the Supreme Court's judgment in De Rossa v. Independent Newspapers Plc. [1999] 4 IR 432 at p. 449.

Article 10 confers on "everyone" a right to freedom of expression. The exercise of this right however may be subject to such requirements or penalties "as are prescribed by law and are necessary in a democratic society….for maintaining the authority and impartiality of the judiciary". That article played a central role in the decision of the European Court of Human Rights in the Sunday Times v. United Kingdom [1979] 2 EHRR 245. That was a case in which the domestic court had granted an injunction restraining the publication of a number of articles which discussed issues involved in ongoing litigation. The English courts came to the view that an injunction was necessary because otherwise the publication in question would constitute contempt of court. The European Court of Human Rights agreed that the interference was prescribed by law and that the aim of such restriction was legitimated under article 10(2) of the Convention. However, it differed from the national court by concluding that the prohibition was not necessary in a democratic society for maintaining the authority of the judiciary. The reasons for this conclusion are set out inter alia at paragraphs 65 – 67 of the judgment. Therein it was pointed out that account must be taken of any public interest aspect of the case in question when the court is considering the sufficiency of the reasons put forward for the interference in question. Such "public interest reasons" are of fundamental importance to the respondent's argument as it has always claimed that by reason of the enormous tragedy of the bombing there was overwhelming public interest in the topics raised by and covered in the articles complained of. Accordingly, for the reasons above outlined, the BBC had a right to have the disputed questions of fact determined by a jury which right it insisted upon exercising.

Counsel on behalf of the applicant submitted that there was no right to a jury trial in relation to contempt proceedings, with this position being established at common law and being one which continued to apply notwithstanding the 1922 and 1937 Constitutions. This is clear from the decisions in Attorney General v. O'Kelly, [1928] I.R. 308, In Re: Earle [1938] I.R. 485 and Attorney General v. Connolly [1947] I.R. 21. Support for this view is also obtained from In Re: Haughey [1971] I.R. 217, Keegan v. de Burca [1973] I.R. 223 and in particular from the decision of the then President of the High Court, Finlay P., in The State (Commins) v. McRann [1977] I.R. 78.

Section 8 of the Courts (Supplemental Provisions) Act 1961 was further support for this proposition, as subsection (2) of section 8 provided as follows:

"8(2) There shall be vested in the High Court—

(a) all jurisdiction which was, immediately before the commencement of Part I of the Act of 1924 vested in or capable of being exercised by the former High Court of Justice in Southern Ireland or any division or judge thereof and was, immediately before the operative date, vested in or capable of being exercised by the existing High Court,

(b) all jurisdiction which, by virtue of any enactment which is applied by section 48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing High Court.

(3) The jurisdictions vested in the High Court shall include all powers, duties and authorities incident to any and every part of the jurisdictions so vested."

The decision of the Supreme Court in The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412 suggested that in certain very limited circumstances there may be a role for a jury in a contempt application. However, it is submitted that the observations of Henchy J., some of which are cited at para. 42 of this judgment, were obiter and that in any event there were no real and live issues of fact in the present application. There was no question but that the respondent corporation was responsible for the broadcast in question and the material on its website and therefore the only issue remaining whether or not the publications complained of constituted a contempt of court. In addition, however, even if this court was minded to follow The State (Director of Public Prosecutions) v. Walsh, it would have to embark upon a determination as to whether or not there were in fact any real and live issues of a factual nature between the parties and until that exercise had been completed this application was premature.

It was claimed on behalf of Mr. Murphy that as well as preserving public confidence in the administration of justice, the law of contempt was inextricably linked to judicial independence and accordingly the courts must be free to police and control their own procedures, dignity and self respect. Noting that the Director of Public Prosecutions was in fact the prosecuting agency in the substantive matter against the applicant, it would be a serious impediment to the integrity of the judicial process if its maintenance was reliant upon a jury or indeed for that matter the Director of Public Prosecutions. It must master its own destiny.

It was claimed that support for this view was obtained from the decision of Budd J. in S v. S [1997] 1 I.R. 506 and indeed from the decision of Kinlen J. in De Rossa v. Independent Newspapers Limited [1998] 2 ILRM 293. Rather than reading the latter judgment as one which followed The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412, it was suggested that, on the contrary, the ultimate conclusion of the trial judge to dispose of the matter without a jury, was reflective of his general view that contempt was within the province of judges only.

The cases of The People v. O'Shea [1982] I.R. 384 and Tormey v. Ireland [1985] I.R. 289 were also relied upon.

On the question of intention, it was submitted that the BBC must have clearly intended what it did and that the natural and probable consequences of its actions must be assigned to it. In any event intention is irrelevant and must be distinguished from motive which is the real issue. In Re: McArthur [1983] I.L.R.M. 355 it was decided that prejudice was not essential and Kelly v. O'Neill should not be read as any more than raising the possibility that in certain undefined and non-described circumstances mens rea may be arguable. Indeed, on the question of contempt or no contempt, strict liability applies where intention is not material.

Counsel also argued that it was not possible for the court, when dealing with this matter as a preliminary application, to determine whether or not there were any relevant factual issues in the substantive proceedings. Such a finding could only be made by the trial judge when all of the facts had been opened to him. What Mr. Kealey has averred to in his affidavits cannot, in this context, be decisive, as no particulars have been raised. Even, however, at such remove, on a closer examination of his evidence it is clear that what is being raised is motive and not intention.

54. Finally, it is claimed that the English cases cited have no relevance because of

the statutory foundation of contempt in that country and that neither Articles 6 nor 10 of the European Convention on Human Rights are superior to the requirement of upholding judicial integrity.

As the two questions posed in the preliminary issue are inextricably linked it is convenient to deal with both of them together.

Decision

55. The following are the relevant articles of the Constitution of Ireland:-

Article 30.3 of the Constitution reads as follows:

"(3) All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose."

Article 34.1 provides:-

"(1) Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

Article 35.2 is in these terms:

" 2 All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law."

Article 38, ss 1, 2, and 5 are in the following terms:-

"(1). No person shall be tried on any criminal charge save in due course of law.

(2) Minor offences may be tried by courts of summary jurisdiction.

(5) Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury."

Article 50.1 provides:-

"(1) Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

Article 64 of the Constitution of the Irish Free State (Saorstát Éireann) 1922 was in similar terms to Article 34 of the Constitution of Ireland, as well as the 1^st part of Article 69 being identical to Article 35.2. Article 72 of the Free State Constitution is in effect indistinguishable from Article 38.5 of the 1937 one, although it does not contain the phrase "save in due course of law" which appears in Article 38.1. In addition Article 73 of the 1922 Constitution continued the laws in force in the Irish Free State, at the relevant date, subject only to the Constitution and to the extent to which they were not inconsistent therewith.

Whether the broadcast of the 9^th October, 2000, and the related articles placed by the respondent on its website on 13^th October, 2000, raise questions of fact has not of course as yet been determined. Neither has the issue of contempt or no contempt. These must await a full hearing whether by a court alone or by a court with a jury. However it has never been denied that the "allegations" of contempt so made are serious ones and are not of a type which could in any way be described as frivolous or vexatious. Equally, the defence argument of jury or no jury is also an important point. Consequently, although I can appreciate the validity of the applicant's argument that it is only on the substantive hearing that the trial judge can determine whether or not there are live issues of fact, nevertheless I feel, that for the purposes of this decision, I ought to proceed on the assumption that there exist such issues of fact. Otherwise a determination on the central point would not be required.

In addition, as part of this approach, I am not satisfied that the present state of Irish law requires the establishment of mens rea as a necessary ingredient of this offence. Though it is mentioned by Keane J. in his judgment in Kelly v. O'Neill [2000] 1 I.L.R.M. at p. 538, he does so in terms which seem clearly to acknowledge that the current position imposes no such demand on a moving party. Consequently it seems to me that this passage of his judgment raises for future debate, but does not purport to incorporate into domestic law this alleged requirement. Denham J. also referred to it but did so purely in passing; on the other hand Budd J. in S. v.S. [1997] 1 I.R. 506 came to the conclusion that it was an essential requirement. In any event this precise point was not central to the issues before me and the submissions were accordingly limited. Lest, however, I should be incorrect in this conclusion, it seems to me that the question of intent is in this context a question of fact, and though I appreciate in general the unique role of a jury in this regard, nevertheless by reason of my final conclusion on the main point, I feel that the question of mens rea can be treated in the same way as any other disputed question of fact. Accordingly I propose to proceed on that basis.

Contempt of court has many classifications. One major distinction is between civil and criminal contempt. The former is generally of interest only to the individual parties to civil litigation and is one in respect of which the courts will essentially only move at the instigation of the person for whose the benefit the order was made. Criminal contempt on the other hand is not so confined. It has many species. It may consist of conduct in the face of the court which is obstructive or prejudicial to the course of justice. It may have its focus on pending proceedings which may be interfered with or prejudiced by what is said or done. A third example might be what is described as "scandalising the court", which would occur where the matters complained of were calculated to endanger public confidence and thereby to obstruct and interfere with the administration of justice. See O'Higgins C.J. in the State (D.P.P.) v. Walsh [1981] I.R. 412 at p. 421 and Keane J. in Kelly v. O'Neill [2001] 1 I.L.R.M. 507 at p. 531. Whatever form it may take, "criminal contempt is a common law misdemeanour and, as such, is punishable by both imprisonment and fined at discretion, that is to say without statutory limit, its object is punitive" (see O'Dalaigh C.J. in Keegan v. de Búrca [1973] I.R. 223 at p. 227.)

In this case it is evidently clear that the contempt complained of is not civil in nature and likewise that it was not committed in facia curiae. In addition, though obviously criminal, it could not accurately be described as being one of "scandalising the court", as its subject matter was a pending case. Whilst a precise classification is not required, it seems to me that it is of a type accurately described by Lord Reid in Attorney General v. Times Newspaper Limited [1974] A.C. 273 at p. 300, in a passage which is quoted by Denham J. in Kelly v. O'Neill [2000] 1 ILRM 507 at p. 519. In essence, it is in the applicant's case, of a type which sought to and did influence public opinion, which prejudged the issue of guilt and which sought to convey that pre-judgment to the general public. Moreover it also sought to prejudice the minds of such person by the contents of the publication. As Lord Reid said, if by way of newspaper, (and I add television), a pre-judgment is conveyed then the consequences will be far reaching and "unpopular people and unpopular causes will fair very badly". Accordingly the material complained of in this motion is potentially capable of constituting a contempt of court, though of course I so say only and strictly for the purposes of this judgment. In addition, in my view, the fact that no attempt was made by the applicant to prohibit his trial has no bearing on this application and neither has the absence of any allegation that the members of the court concerned were, as a matter of fact, influenced by the publications.

58 At common law there was no doubt but that a court of record had power to summarily deal with contempt allegations, even those properly described as criminal in nature and whether committed in facia curiae or otherwise. It could exercise this jurisdiction without the involvement of a jury. In R. v. Almon, (1765) Wilm. 243, a decision adopted and approved by Palles C.B. in Attorney General v. Kissane (1893) 32 L.R. Ir 220, it was said that this power was required so as to enable a court to vindicate its own authority and was a necessary incident to every court of justice. Its foundation stood upon the same immemorial usage as supported the whole fabric of the common law, and it was as ancient as any other part of that law. Whilst a trial by jury was one part of that system, "the punishing contempts of court by attachment is another: we must not confound the modes of proceeding, and try contempts by jury, and murders by attachment. We must give that energy to each which the constitution prescribes." (See p. 271 of the report.)

Lord Blackburn's judgment in Skipworth's case, L.R. 9 Q.B. 230, at p. 232, is to the same effect. Both of these cases are referred to with approval in Attorney General v. O'Kelly [1928] I.R. 308.

Mr. Sean T. O'Kelly was the subject matter of a motion for attachment for contempt of court by reason of an article published in "The Nation" of the 18^th February, 1928. In the piece which was published, serious allegations were made about a judge of the Central Criminal Court of the Irish Free State, on his handling of a jury which had failed to agree on an issue submitted to them in a then current trial. On behalf of the respondent a preliminary point was raised. It is worthy to recite from the judgment what counsel on behalf of Mr. O'Kelly said, as it strikingly reflects one of the central submissions made in this case. At p. 315 of the report it is stated:

"Counsel on behalf of Mr. O'Kelly contend:

(1) that the contempt of court alleged in this case is a criminal offence;

(2) that the notice of motion is a criminal charge; and,

(3) that the hearing of the motion by this court is a trial of a criminal charge; and,

(4) that Art. 72 of the Constitution prohibits such a trial without a jury."

In response whilst conceding that the matter was a criminal offence the Attorney General nevertheless submitted that the proceedings were not "the trial of a criminal charge" within Article 72. O'Sullivan P., having considered Article 64 of the then Constitution and Article 73, which, subject to the Constitution and to any inconsistency therewith, continued in force the laws of the Irish Free State at the time of the establishment, came to the conclusion that:

"(But), reading Articles 72 and 73 in conjunction with Article 64 I am of opinion that Article 72 was not intended to and does not, affect the jurisdiction of the High Court to deal summarily with cases of contempt and that its operation is confined to trials of criminal charges by ordinary criminal process. I am, therefore, of opinion that the preliminary objection raised to the jurisdiction of this court fails."

Accordingly, in the opinion of the learned judge the contempt charge was not captured by Article 72, which in its materiality is essentially the same as Article 38.5 of the 1937 Constitution.

Whilst Meredith J. dissented on certain grounds, nevertheless, at p. 320 of the report, he expressed the view, which is deserving of note, that the Court's jurisdiction in a contempt matter "is, in fact, as wide as the requirements of the case – the protection of the courts in the administration of justice. It need not be further or otherwise defined…."

Accordingly in the Court's opinion Article 72 of the Constitution did not interfere with the pre-existing common law right of the High Court to deal summarily, that is without a jury, with a contempt of court which clearly was criminal in nature.

In Re: Earle [1938] I.R. 485 the Supreme Court endorsed the decision of the divisional court in O'Kelly. Though the contempt alleged in that case was a failure to comply with the terms of an order of habeas corpus, nevertheless both Fitzgibbon J. and Murnaghan J. (though differing on some matters) supported in quite strong terms the O'Kelly position, namely that Article 72 of the Constitution did not require a jury trial when dealing with contempt applications.

In 1947 the High Court again considered the same question, but this time under the new Constitution. Though the High Court in Attorney General v. Connolly [1947] I.R. 213 was protecting an inferior court, namely the Special Criminal Court, this point of distinction was not relevant. In the judgment of Gavan Duffy P., the Court, which included Maguire and Davitt JJ., followed both the reasoning and conclusion arrived at in O'Kelly. It did so having drawn express attention to the more comprehensive rights contained in Article 38 over those conferred by Article 72 of the 1922 Constitution. (See para. 55 supra). It held, therefore, that notwithstanding Article 38.5 of the Constitution there was no right to a jury trial in respect of the contempt before that Court, which contempt, like that in O'Kelly, could not be described as a minor one.

In Re: Haughey [1971] I.R. 217 and in Keegan v. de Burca [1973] I.R. 323 the Supreme Court, in both cases expressly, left open the question as to whether O'Kelly and Connolly were correctly decided.

The matter once again came before the High Court in 1977. In State Commins v. McRann [1977] I.R. 78 the defendant raised Article 38.5 of the Constitution as conferring on him a right to a jury trial in respect of a contempt which was non-minor in nature. Though the contempt alleged in that case arose out of an order of the Circuit Court made in a civil action, Finlay P., as he then was, expressed the view that the principles applying to the summary disposal of criminal contempt applied equally to civil contempt. Having surveyed the relevant provisions in the 1922 Constitution and the cases above mentioned, including the decision of Parke J. in McNamoe v. Leonard, High Court, Unreported, 9^th December, 1975, the learned judge concluded that the views expressed in O'Kelly, In Re: Earle and Connolly were "extremely persuasive precedents". But in addition, he added a further reason of considerable significance; at p. 88 of the report he said:

"…but I am further satisfied that there is an additional reason why it would 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 of court, and whether it is classified as criminal or as civil contempt.

The rights of a person to be tried on a criminal charge, as provided by Article 38, s. 5 of the Constitution of 1937, are guaranteed in terms which are, for all practical purposes, identical to the terms of Article 30 of the Constitution. If the contention made on behalf of the prosecutor were correct then, under present state of the law it seems to me that, in the event of a court's 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 of court) such court 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 have been guilty of 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 divisions of powers which underlies the whole Constitution. In my opinion it is not fanciful 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 part of a servant 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 Ireland, and that Article 38 of the Constituted must be interpreted as qualified by the provisions of Article 34. Therefore, I reject the first submission made on behalf of the prosecutor."

Accordingly, up to the decision in Walsh, there was a variety of forceful authority, from several courts under both Constitutions, against the proposition that an alleged contemnor like the BBC was entitled to a trial by jury when facing a criminal contempt charge of a non-minor nature. In fact there was not a single Irish authority in support of such a proposition.

Arising out of the trial of Marie and Noel Murray for the capital murder of a member of An Garda Síochána, the Irish Times on 11^th June, 1976, carried, as a news item, a piece attributable to its political correspondent in which it was stated that the defendants, who were members of an association, had claimed that the sentences imposed by the Special Criminal Court were reprehensible as "that court composed of Government appointed judges having no judicial independence which sat without a jury and which so abused the rules of evidence as to make the court akin to a sentencing tribunal." Contempt proceedings were taken by the Director of Public Prosecutions against inter alia the respondent members. The form of contempt in question was not one committed in the face of the court nor one which might have interfered with or prejudiced pending proceedings. Rather it was described as of the type which "scandalised the court". In his judgment in the case of State (D.P.P.) v. Walsh [1981] I.R. 412 O'Higgins C.J., when dealing with a submission seeking a jury trial, expressed the view that whilst the decisions in O'Kelly and in Connolly may be said to have concluded the issue, nevertheless since the point was a matter of such importance he felt that the court ought to re-examine the situation afresh. The learned Chief Justice noted the concessions made on behalf of the respondents that summary jurisdiction existed in respect of contempts committed in the face of the court and also in respect of constructive contempts which might endanger the fair hearing of a pending trial. These concessions, which in fact extended to all forms of contempt save for one, were offered on the basis that time did not permit a trial by jury in such instances. However, in respect of the contempt alleged against them, namely that of scandalising the court, no such pressing requirements existed and accordingly a jury trial was required.

This submission was rejected by the Chief Justice. In his view, if a power to act summarily in cases of criminal contempt existed, it must exist for and extend to all forms of such contempt. Having looked at Article 38.5 of the Constitution and having given a literal interpretation to it, the learned Chief Justice came to the conclusion that such an approach would result in Article 38.5 applying to some criminal contempts but not to others. If that was correct it would mean that under Article 30.3 of the Constitution every non-minor contempt would require the intervention of the Attorney General and now the Director of Public Prosecutions. It would mean that no court could act on its own motion. He felt that such a result stemmed from an erroneous construction of the general tripartite scheme of the Constitution and in particular from the role given to judges and justice by Article 34 thereof.

At page 426 of the report the Chief Justice continued:

"These are the courts in which justice, or the judicial power, is required by the Constitution to be administered by judges duly appointed thereunder. That it is essential to the administration of justice in these courts that the proceedings be conducted fairly cannot be doubted. Neither can it be doubted that it is equally essential that the courts authority be effective and that it be both recognised and respected. If such proceedings are obstructed or interfered with, witnesses are frightened, threatened or subordinate, if a pending hearing is prejudiced by unfair comment or publicity, or if a court is held up to public ridicule and contempt by baseless allegations of impropriety and corruption, then in no such circumstances could justice be administered both fairly and effectively.

But under the Constitution it is the solemn duty of judges to see that justice is administered in the course of justice. Surely the imposition of this duty carries with it both the power and the corresponding duty to act in protection of justice, if its fair or effective administration is in danger or threatened. In my view the judicial power of Government (which, in accordance with Article 6 of the Constitution, is exercisable only by or on the authority of the courts as the organ of State established by the Constitution for that purpose), is sufficiently extensive to authorise the courts to take any action that is necessary for the due administration of justice. Such action must include, where necessary, the power to try summarily those accused of interfering in any manner with the administration of justice. Such an accusation comprises in my view all forms of criminal contempt in the court."

The reason for this constitutional jurisdiction was, according to the Chief Justice, the protection of justice whether in respect of litigation at hearing or pending or indeed concluded. Since the exercise of this jurisdiction is primarily directed at discouraging the repetition of and to prevent the continuance of such conduct it was in the view of the learned Chief Justice completely irrelevant whether or not time permitted a trial by jury.

Finally, the learned judge also made it clear that whilst attachment proceedings for contempt can be described as criminal in nature, these do not fall within the ambit of Article 38.5 of the Constitution which covers offences "against the body of substantive criminal law which exists in this and every other country and which requires for its enforcement the action of the executive." See p. 429 of the report. He was also of the view that since criminal contempt is purely a matter for judicial control, it does not and ought not depend for its enforcement on any other organ of Government. Whilst it may be doubted that the Director of Public Prosecutions would ever decline an invitation issued by the court to move in respect of a contempt matter, nonetheless the court had no power to compel him to so do. In all of these circumstances the Chief Justice concluded that Article 38.5 did not apply to contempt.

Henchy J. gave the majority judgment of the court, with some of the relevant passages from his judgment being quoted at paragraph 42 above:

"When the major offence charged is contempt of court, and if there are live and real issues of fact (such as whether the accused committed the act alleged against him, or whether it was done with his approval, etc.) the accused has a prima facie right under Article 38.5 to trial with a jury, thus entitling him to have those issues of fact committed to a jury for their determination. As at present advised, I do not find any other provision of the Constitution which would rebut that presumption. It would not seem to be compatible with the constitutional requirement of fundamental fairness of procedures, or with the equality before the law guaranteed by Article 40.1 if contempt of court, which carries with it the risk of a fixed but unlimited term of imprisonment of an unlimited fine, were the only major offence which is exempt from the requirement of a determination by a jury of the controverted facts.

But where the facts are admitted, or have been determined by a jury, or have been duly and properly decided by the judge not to be in issue, I consider that the question whether those facts amount to the contempt of court charged must be deemed to be a question of law to be decided by the judge, provided the judge is vested with the original jurisdiction necessary to try such a contempt summarily. This appears to me to be a necessary corollary of certain constitutional postulates, especially the guarantee in Article 35.2 that all judges shall be independent in the exercise of their judicial functions and subject only to the Constitution and the law, and the implied but pervasive requirement that fundamental fairness of procedures shall be observed. The later requirement could not be observed if the question of whether a particular piece of conduct amounted to contempt of court had to be resolved by a jury."

Finally Henchy J. also felt that "to the extent that such mode of trial may require the co-operation of the Director of Public Prosecutions, I think that, if such cooperation were not forthcoming, the inherent powers of the court would comprehend the capacity to compel such cooperation". (At p. 441).

In summary, the learned judge said that where there were real and live issues of fact to be determined then an accused person was prima facie entitled to a jury, for that purpose, under Article 38.5 of the Constitution. However, where there were no such facts, or where such facts had been admitted or determined by a jury, then the question whether such facts amounted to a contempt of court was one of law and therefore one solely for the trial judge. This resulted from "certain constitutional postulates", especially the independence of the judiciary under Article 35.2 of the Constitution, as well as the requirement to ensure fundamental fairness of procedures. If the guilt or innocence of a respondent was determined otherwise, then a jury, by a perverse verdict of not guilty, "could set at nought the constitutional guarantee that basic fairness of procedure will be observed, and could, at the same time undermine the independence of the judiciary" (p. 440). In addition Henchy J. said that "the ultimate responsibility for the setting, and the application, of the standards necessary for the due administration of justice must rest with the judges" (p. 440). Moreover, he was of the view that if a jury trial was permissible then that mode of trying the factual issues should be available to all major contempt charges. Finally he offered the opinion that "to the extent that such mode of trial may require the co-operation of the Director of Public Prosecutions, I think that, if such co-operation were not forthcoming, the inherent powers of the courts would comprehend the capacity to compel such co-operation" (p. 441).

Subsequent to the decision in Walsh there were two further cases which were also opened to the court. These are referred to above respectively at paras. 43 and 56 and are De Rossa v. Independent Newspapers Limited [1998] 2 ILRM 293 and Kelly v. O'Neill [2000] 1 ILRM 507.

In my respectful view the decision in De Rossa is not clearly determinative in either direction, in that it seems on the one hand that Kinlen J. felt himself bound by the majority view in Walsh, and yet on the other hand decided against a jury. Perhaps this was perfectly correct and logically arrived at, on the basis that since mens rea was in his view irrelevant there were no other factual issues in the case. Whatever be the situation, I do not quite believe that De Rossa is truly decisive on the issue.

In Kelly neither the question of locus standi nor a trial with jury arose. Whilst the decision is important for several reasons, it is not strictly on point for the purposes of this case.

Neither are any of the English cases, given the statutory source of contempt in the United Kingdom since at least 1981; though it is interesting to note that notwithstanding a potential term of imprisonment of at least 2 years, there is no right to a jury trial in that Country. See par. 3.56 of Arlidge, Eady & Smith on Contempt, 2^nd ed.

In my view the Walsh case is the pivotal decision in this jurisdiction as it sets out the conflicting judicial unease between granting a person, charged with a non- minor contempt, a trial with a jury as distinct from preserving the long established position of the court having a right to summarily dispose of such matters. Although the respective conclusions of the majority and minority, differed in that regard, it is however possible to identify a good deal of common ground between the views of Henchy J. and O'Higgins C.J. No right to a jury trial arises unless the contempt is criminal in nature, is non-minor and there are real and live issues of fact which require resolution. If these elements are not present in any given application, then there can be no question of the alleged contemnor being granted a right to a trial with a jury. Moreover both the learned judges agreed that no distinction should be made between the different types of contempt for this purpose. The right, if it exists, is either available to all classifications of contempt or not at all, with the Chief Justice expressly rejecting a submission that expediency or urgency would justify any such distinction.

In addition and to the same end, both heavily relied on the importance of upholding the administration of justice and on the fundamental position of judicial independence. The crucial point of distinction, it seems to me, was the belief of the majority that Article 38.5 applied, though in a modified way, whereas the opposing view was that contempt was outside the substantive body of criminal law and accordingly that this constitutional provision was inapplicable.

In Walsh [1981] I.R. 412 the views of Henchy J. were undoubtedly obiter as no such real or live issues of fact existed in that case. To that extent the majority's opinion does not attract the principle of stare decisis but it is of course of significant persuasive authority. In my view it is clear from that decision that if the right is available its source must be founded in Article 38.5 of the Constitution. No other basis in domestic law has been identified as potentially applying. Leaving aside the argument advanced by the Law Reform Commission, which respectfully questions the correctness of Henchy J.'s position that the decision in O'Kelly could not stand with the judgment in The State (Browne) v. Feran [1967] I.R. 147 (see p. 206 of the Commission's Report on Contempt of Court), it seems to me that by reason of the bifurcated role envisaged for the jury in the majority view, that role is not fully reflective of what Article 38.5 is understood to convey. From the decision of the learned judge it is clear that a jury in a contempt matter would have a limited and restricted part to play. Their decision would be confined to adjudicating on disputed facts. Save for that they would have no input into the verdict which the allegation would call for. That would be exclusively a matter for the judge, it being a question of law. This position does not accord with the operational process of that Article in the general body of criminal law in indictable matters. In all such non-minor cases the judge charges the jury on the relevant law which it must accept from him, but thereafter, applying the directions given, the jury is solely responsible for the decision of guilt or innocence. There is thus an immediate distinction of significant importance between the mechanics of any jury trial in a contempt matter as distinct from such a trial within the province of the general criminal law: See the criticism, at para. 6.5.405 of Kelly on the Constitution 4^th Ed, of this suggested role split between judge and jury.

The reasons why Henchy J. felt it necessary to restrict the function of a jury in the manner outlined are reasons which respectfully I fully accept. Public confidence could be permanently undermined if by a perverse but unreviewable verdict the stigma of a contempt could be improperly validated or left wrongly unpunished. Nevertheless it results in an unsatisfactory situation, the creation of which seems to have been essential in order to uphold the administration of justice under Article 34.1 of the Constitution and the independence of the judicial arm of government under Article 35.2. In my respectful opinion I take the view that when the relevant provisions of the Constitution are given an integrated construction against the common law background on contempt of court, this strained co-existence is not in fact necessary.

In my judgment the decision in O'Kelly is a clear cut authority for the proposition that Article 72 of the Free State Constitution did not require jury trials in the type of circumstances presently under discussion, and that the pre-existing law was carried forward into the Free State, by virtue of Article 73. That position was undoubtedly the declared opinion of the judiciary in 1937. As Article 38.5 of the Constitution of Ireland is essentially the same as Article 72 of the 1922 Constitution, it seems to me that the common law position, as it existed prior to 1922 and which was continued for the life of the Free State, was likewise carried over by Article 50 into the body law of the present State. I therefore believe that given the similarity between the relevant Articles of both Constitutions, the power vested in a court of record prior to 1922 and 1937 has survived and that Article 38.5 has not impressed upon it the requirement of a jury trial. This opinion of course is fully in accordance with the judgment in Connolly [1947] I.R. 21, a case determined under the Constitution of Ireland.

It is, in my view, of the first importance that a court of and by itself can vindicate its own authority and that the competence to so do is inherent from its very creation and from the purpose of its existence. It would be seriously impotent if it was otherwise. It is of crucial significance that its integrity be maintained and that its dignity, from both a principled and operational point of view, is not undermined by groundless words, actions or deeds. Under the separation of powers within our Constitution, courts are not only entrusted but are mandated to deliver justice and for that purpose judges have a constitutional safeguard of independence. Their capacity to achieve this would be seriously inhibited if they could not master their own destiny. Moreover since judges have the responsibility of setting not simply minimum, but due and proper standards for the effective administration of justice (see p. 440 of Walsh) it appears to me that as a necessary corollary they must likewise have the power to impose those standards against all. Public respect and public confidence demands and would not accept anything less. I am therefore of the opinion that the reasoning of the courts in O'Kelly and Connolly accurately reflect what the true position is in this jurisdiction with regard to contempt.

In addition I respectfully concur with the entirety of the views expressed by O'Higgins C.J. in the State (D.P.P.) v. Walsh [1981] I.R. 412. It seems to me that the declaration of independence attaching to the judicial function as outlined in Article 35.2 of the Constitution could not be fully honoured and implemented if, in the face of unacceptable conduct, the court had to cede any part of its self-protecting obligation to a jury. In addition it must have and be seen to have power to vindicate its own authority and to protect the public face of justice.

There is another reason why I have come to this conclusion. It will be recalled that under Article 30.3 of the Constitution the D.P.P. is required to prosecute "all crimes and offences" in any court established under Article 34, save for a court of summary jurisdiction. As The State (Ennis) v. Farrell [1966] I.R. 107 has decided, the role of the common informer has survived this Article and accordingly even with indictable offences such a person can initiate by way of information or complaint a summons and can continue in his role as prosecutor up to the time at which the District Court makes a decision on a return for trial. Thereafter the D.P.P. becomes dominus litis with the common informer having no further part to play. The authority of such person therefore, though valuable, is limited. The result accordingly would be that if Article 38.5 applied to a non-minor contempt application, the only moving party would be the D.P.P. This could create, possibly even to the exclusion of the court itself, a position which would involve the utmost paralysis of its workings.

This resulting dilemma was one of the reasons why Finlay P. made the decision which he did in The State (Commins) v. McRann [1977] I.R. 78. In a passage quoted at par. 62 the then President pointed out that if Article 30.3 applied and if for whatever reason the D.P.P. should not act, then the courts' competence to enforce their own will could be seriously incapacitated.

This point was also addressed by O'Higgins C.J. in The State (D.P.P.) v. Walsh where at p. 425 of the report he rhetorically asked how could the courts properly administer and safeguard justice if the moving of a contempt matter rested with the D.P.P., who in such a context must be regarded as acting for the executive. Later in his decision he referred back to this situation and offered the view that in all probability the D.P.P. would not decline to prosecute if he was requested by a court to so do. However, the Chief Justice felt that under the Constitution there was no power to compel the D.P.P. to act if he decided against it. Henchy J. did not feel that the courts were so handicapped, believing as he did, that its inherent powers were such as could compel such co-operation in the face of objection.

The instant case is as close an example to the type of situation just outlined as one could get, falling short of the court making a direct request to the D.P.P. to prosecute. It will be recalled that on the instructions of the Special Criminal Court the Director was asked whether in the event of the motion proceeding before the High Court, he would take over the prosecution of it or alternatively institute fresh proceedings. He declined to do either. As the point has not been debated before me, I could not offer a concluded view on the courts' capacity to compel him to move, but at least superficially I cannot readily identify any source which would justify any form of mandatory order. As this case therefore demonstrates, the allegation of contempt made could not proceed if he was solely in charge of its movement. For several reasons this would create quite an unacceptable position. He is as previously noted the prosecuting agent and thus a party to the criminal proceedings. He, if he so wished could move the motion but if on the question of standing his submissions were correct, Mr. Murphy could not. Whilst this court should not speculate on the reasons for the D.P.P.'s refusal, it cannot I feel, have been solely based on a view that either on the law or the merits the application was bound to fail. There are, at least prima facie, serious matters which justify access to the courts. The courts themselves cannot be expected to act as the initiating mover in all such cases. Despite the enormity of the background atrocity of the bombing, the public at large as well as the applicant have a vested and personal interest in the purity of the administration of justice. It is therefore in my view of fundamental importance to the integrity and preservation of justice, to the upholding of judicial independence and to the administration of constitutional fairness and fair procedures, that the law of contempt should, in the context under discussion, remain in the same state today as it was prior to 1922.

The conclusion therefore is that the law of contempt without distinction, is not, when dealing with non-minor matters, a criminal offence within the meaning of Article 38.5 of the Constitution and accordingly a person facing such an allegation is not entitled to a jury trial. It is not part of the substantive body of criminal law to which that Article applies. Rather it stands in a category of its own and can be considered sui generis. Since it is inherently intertwined with the administration of justice, it should I feel be considered as ancillary to Article 34 of the Constitution.

This view does not in my opinion conflict in any way with Article 40.6.1 of the Constitution or with Article 10 of the European Convention on Human Rights. Contempt being a criminal matter means that any respondent must be accorded due process and fairness of procedure. Provided his right to a fair trial is preserved, which in my view is fully achievable even without a jury, then any relevant constitutional provision as well as Article 6 of the Convention will be satisfied.

The above reasoning also applies to the locus standi point. In addition, however, it is interesting to note that the decision in MacArthur raised but left open this very issue. And yet more than 20 years later this matter does not appear to have been further litigated. Instead there have been several cases of private persons moving the court in this regard. P.S.S. .v. J.A.S. and Independent Newspapers (Irl) Ltd. and Others, Unreported, High Court, 19^th May, 1995, De Rossa and Kelly v. O'Neill [2000] 1 ILRM 507 are but some examples. Quite apart from what appears to have been the accepted practice, it seems to follow from the above that the D.P.P. should not be the only person with power to initiate such an application and that Article 30.3 of the Constitution should not be so read. Whilst O'Higgins C.J. may be correct in that no court invitation to prosecute would be declined, for my part I would prefer not to place the D.P.P. in that position.

Finally, could I say that some criticism has been raised about "judicial independence from the executive" being one of the grounds relied upon to justify the conclusions above reached. See generally O'Donnell "Some Reflections on the Law of Contempt" (2002) 2 JSIJ 88. It is of course totally true to suggest that for the implementation of its orders the courts depend on the executive arm of government. It is not independence in that sense I mean when I refer to this matter above; as if should that cease the essence of our democratic institutions would likewise cease. Rather it is the courts' ability, without necessary dependence on others, to exercise to a conclusion the powers vested in them under the laws and under the Constitution.

For the above reasons I would hold that the applicant has standing and the respondent is not entitled to a jury.

Approved: McKechnie J.