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URL: http://www.bailii.org/ie/cases/IESC/2008/S8.html
Cite as: [2008] 4 IR 88, [2008] IESC 8, [2008] 2 ILRM 161

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Judgment Title: DPP -v- Independent Newspapers (Ireland) Limited & ors

Neutral Citation: IESC No. 8

Supreme Court Record Number: 221/05

High Court Record Number: 2005 6 MC

Date of Delivery: 05 March 2008

Court: Supreme Court

Composition of Court: Murray C.J., Hardiman J., Geoghegan J., Fennelly J., Finnegan J.

Judgment by: Hardiman J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Hardiman J.	Other (see notes)
Geoghegan J.	Other (see notes)	Murray C.J., Finnegan J.
Fennelly J.	Other (see notes)	Murray C.J., Finnegan J.

Notes on Memo: Preliminary issue determined

THE SUPREME COURT

Judicial Review

221/05

Murray C.J
Hardiman J.
Geoghegan J.
Fennelly J.
Finnegan J.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant/Appellant

and

INDEPENDENT NEWSPAPERS (IRELAND) LIMITED and Ors.

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 5th day of March, 2008.

Background.
On the 1st December, 2004, a man called Patrick O’Dwyer appeared before the District Court in Ennis, Co. Clare, having been charged with the murder of Marguerite O’Dwyer, his sister, on the 29th November, 2004.

On the 2nd December, 2004, a number of articles were published in a newspaper published by the first-named respondent, edited by the second-named respondent and carrying the by-line of the third named respondent. Shortly afterwards, the Director of Public Prosecutions instituted contempt proceedings against the three respondents saying that the material published on the 2nd December, 2004:

“… was calculated to interfere with the course of justice and the trial process then in being between the applicant and Patrick O’Dwyer and to prejudice the fair trial of the said Patrick O’Dwyer. Furthermore, the said publications took place subsequent to the criminal charge preferred against the accused and to his remand in custody and in breach of the sub judice rule and contained details in respect of the remand hearing before Ennis District Court on the 1st December, 2004 which further amounted to contempt of court.”

The above quotation is taken from the Notice of Motion issued by the applicant on the 1st February, 2005. In this Notice of Motion he seeks, at paragraph 1:

“An order directing the attachment and committal and/or sequestration of the assets of the respondents herein, as the case may be, and each of them for contempt of court in respect of material published in the Evening Herald newspaper on the 2nd day of December, 2004, which material is exhibited and described with particularity in the affidavit sworn herein on the 1st day of February, 2005, by John Forde on behalf of the applicant.”

It will be noted, accordingly, that the first relief sought by the applicant in the contempt proceedings was committal to prison of the individual defendants, because they had committed a contempt of court. Such a deprivation of liberty would obviously be penal in nature. The other relief sought, presumably against the corporate respondent, was sequestration of property. This is undoubtedly a penal deprivation of assets, by reason of the fact that the company must have been, before any sequestration is ordered or takes place, found guilty of contempt of court.

The Director’s application for committal and sequestration was heard before the High Court (Dunne J.) in May, 2005. On the 3rd May of that year a written judgment was delivered by the learned High Court judge dismissing the Director’s application and acceding to an application made by the respondents for a non-suit or “direction”, at the end of the prosecution case. The order of the High Court, perfected on the 12th May, 2005, records that:

“The Court doth refuse the relief sought.”

By a document dated the 14th June, 2005, the appellant, the Director of Public Prosecutions, has purported to appeal this decision of the High Court to this court. Some time after this notice was lodged the respondents decided that they would take the point that, in the circumstances outlined above, no appeal lies from the decision of the High Court with which the Director is aggrieved. When the appeal came into the list for hearing this Court directed that that issue be dealt with first.

Constitutional and statutory provisions.
By virtue of Article 34.4.3 of the Constitution:

“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”

The main relevant “exception… prescribed by law” is contained in s.11 of the Criminal Procedure Act, 1993 which provides as follows:

“(1) The right of appeal to the Supreme Court, other than an appeal under s.34 of the Criminal Procedure Act, 1967, from a decision of the Central Criminal Court is hereby abolished.”

At the hearing before this Court the Director conceded that the effect of this Section was that if the High Court which gave the decision in this case, against which the Director wishes to appeal, can be regarded as the Central Criminal Court, then no appeal lies.

On this topic, 11 of the Courts (Supplemental Provisions) Act, 1961 provides as follows:

“(1) The High Court exercising the Criminal jurisdiction with which it is invested shall be known as An Phríomh-Chúirt Choiriúil (The Central Criminal Court) and is in this Act referred to as the Central Criminal Court.

(2)(a) The jurisdiction exercisable by the Central Criminal Court shall be exercised by a judge or judges of the High Court (including the President of the High Court) nominated from time to time by the President of the High Court.

(b) The jurisdiction of the Court shall be exercisable by each judge for the time being so nominated save that, where the President of the High Court directs that two or more such judges shall sit together for the purpose of a particular case, the jurisdiction of the Court for that purpose shall be exercised by those judges sitting together.

(c) Every person lawfully brought before the Central Criminal Court may be indicted before and tried and sentenced by that Court, wherever it may be sitting, in like manner and in all respects as if the crime with which such person is charged had been committed in the County or County Borough in which the said court is sitting.

(4) The references in any other enactment (whether passed before or after this Act) to the Central Criminal Court shall be construed as references to the High Court exercising the criminal jurisdiction with which it is invested.”

Nature of the contempt proceedings.
There is clear authority, both recent and remote, for the proposition that contempt proceedings of the kind instituted by the Director in the present case are criminal proceedings and are not proceedings of any other nature, or proceedings which are sui generis.

In The State (DPP) v. Walsh [1981] IR 412, the Director had likewise sought orders of attachment and committal or sequestration against the respondents. The Supreme Court held that, on that account, the respondents were charged with the commission of criminal offences and that the High Court had jurisdiction to try the respondents summarily, without a jury, on the charges of contempt of court made by the prosecutor. It was further held that the respondents were charged with major, and not minor, offences so that their trial on those charges were governed prima facie by the requirements of Article 38.5 of the Constitution but that nevertheless the respondents were not entitled to a trial with a jury since there were no disputed issues of fact requiring the services of a jury for their determination.

At page 429 of the report O’Higgins C.J. said expressly:

“These proceedings are attachment proceedings for contempt of court. I think it is correct to describe such proceedings as being in reality a charge of a criminal offence.”

Apart from this, the respondents pointed out at the hearing in this Court that in his written submissions in the High Court in this present case, the Director stated that what the defendants were charged with was “a common law offence which is punishable with such amount of fine or imprisonment as the Court may determine.” Accordingly the defendants, it would appear, were at risk of an unlimited fine or of imprisonment for an unlimited duration.

The decision of the former High Court in Attorney General v. O’Kelly [1928] IR 308 refers to a decision of the former Courts of Justice in Ireland, prior to 1924, namely A.G. v. Kissane, 32 LR IR 220. There, no less an authority than Chief Baron Palles surveys the antiquity of the jurisdiction as well as its nature and says:

“ ‘That power’, says Wilmot C.J. ‘which the Courts in Westminster Hall have of vindicating their own authority is coeval with their foundation and institution; it is a necessary incident to every Court of Justice, whether of record or not, to fine and imprison for contempt of court, acted in the face of it.’ No-one will contend that the jurisdiction to fine and imprison is not essentially criminal.”

He proceeds:

“And the issuing of attachments by the Supreme Courts of Justice in Westminster Hall for contempts out of court stands upon the same immemorial usage as supports the whole fabric of the Common Law; it is as much the

lex terrae

and within the exception of Magna Charta, as the issuing of any other legal process whatsoever. I have examined very carefully to see if I could find out any vestige or trace its introduction, but can find none. It is as ancient as any other part of the Common Law; there is no priority or posteriority to be discovered about it; and therefore it cannot be said to invade the Common Law, but to act in alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society.”

It therefore appears to me:

(a) That the jurisdiction to attach, commit or sequestrate for contempt of court is criminal in nature. There is in my view no answer to the point made by Chief Baron Palles: “Now no-one will contend that the jurisdiction to fine and imprison is not essentially criminal.” The criminal standard of proof must apply.

(b) This jurisdiction is of immemorial origin and has been regarded as inherent in courts throughout the recorded history of the Common Law.

Decision and discussion.
On this hearing, it was undisputed that the original application for attachment and committal, and for sequestration, had properly been brought in the High Court and the High Court was properly seised of the application. Accordingly, it seems to me beyond argument that the High Court had jurisdiction to deal with the matter. Since the matter itself was of a criminal nature, this was a jurisdiction to deal with a criminal matter i.e. a criminal jurisdiction. This jurisdiction belonged to the High Court not by being conferred by statute at some specific time but as an inherent jurisdiction “coeval with [its] foundation and institution”. Such a jurisdiction may fairly be regarded as inherent.

Accordingly, the High Court in dealing with this application of the Directors was exercising a criminal jurisdiction vested in it since time immemorial. While doing this the High Court is to be known, by reason of s.11(1) of the Courts (Supplemental Provisions) Act, 1961, as the Central Criminal Court. Moreover, by virtue of subsection (4) of the same Section, “The references in any other enactment… to the Central Criminal Court shall be construed as references to the High Court exercising the criminal jurisdiction with which it is invested.” The Criminal Procedure Act, 1993, is such an enactment, and the High Court dealing with this application is “the Central Criminal Court” mentioned in subsection (1) of s.11 of the Act of 1993. This Section abolishes the right of appeal to the Supreme Court from a decision of the Central Criminal Court. The decision against which the Director purports to appeal is such a decision; accordingly no appeal lies.

The logic of the chain of reasoning set out above appears to me to be inescapable. But I would concede the attraction and plausibility of two of the points made on behalf of the Director. The first is that no person, and certainly no lawyer, would speak naturally of the Court in which Ms. Justice Dunne sat and disposed of the Director’s application as “The Central Criminal Court”. On the contrary, they would refer to it as the High Court. But this is a matter of familiar nomenclature only. Section 11 of the Act of 1961, quoted above, has ordained that the High Court shall be known as the Central Criminal Court when it is exercising (any part or aspect of) the criminal jurisdiction which it has. No doubt the huge bulk of that jurisdiction consists in hearing criminal trials on indictment and that activity is associated in the mind of the profession with the term “Central Criminal Court.” But that fact, the product of familiarity and of an omission to consider the statutory framework, cannot stand in the face of what I regard as the plain construction of s.11 of the Act of 1961.

So ingrained has the use of the term “Central Criminal Court” in the sense indicated above become that Henchy J. himself in The People v. O’Shea, at p.421 of the Report refers to:

“… the Central Criminal Court (which is but a description of the High Court when exercising its jurisdiction to try indictable offences).”

It would, of course have been possible so to define the Central Criminal Court in the Act of 1961 or some other enactment. But this was not done and the more inclusive definition quoted above was used instead. Secondly, no-one looking at the Act of 1993 in its context can doubt that its purpose was specifically to overrule the effect of the decision of this Court in O’Shea reported in [1982] IR. O’Shea’s case was originally a trial on indictment and specifically (in this Court) concerned the State’s successful assertion of a right to appeal from a directed verdict of not guilty. It may well be that the intention of the legislature in 1993 would have been fully achieved by providing simply that there was to be no appeal against a directed verdict of acquittal in the Central Criminal Court. But this, too, was not done, for whatever reason, and instead the broader form of words with which we are concerned here found favour with the legislature.

Other considerations.
Despite the fact that there may have been an element of happenstance in the adoption of the form of words actually used in 1961 or even in 1993, I do not regard the result which they require in this case as regrettable or in any way inappropriate. The defendants were subjected to a criminal trial in the High Court, in which, if they had been convicted, they might have been imprisoned for any length of time and deprived of their property without limitation on the amount. They were acquitted by the learned trial judge. It is irrelevant for present purposes that, for the reasons discussed at length in Walsh’s case, cited above, there was no jury. The defendants have been acquitted by a court of competent jurisdiction after the prosecution had deployed against them all the evidence they wish to deploy and had addressed all appropriate arguments to the Court of trial.

It is an utterly novel proposition that an acquittal in those circumstances can be the subject of appeal. I am reminded of what Henchy J. said in the somewhat different context of O’Shea’s case at p.421:

“There is no precedent for the appeal now contended for. This Court has never heard, much less allowed an appeal against an acquittal in the Central Criminal Court. The appellant however contends that we should allow his appeal against the acquittals in this case. More specifically, by his Notice of Appeal he claims that the trial judge’s direction to the jury to bring in verdicts of not guilty was a misdirection and should be set aside and that we should order a new trial on those counts. Were such an order to issue, it would be unprecedented in the annals of criminal law in these islands. It is against the background of such considerations that the propounded question must be set in focus.”

I would also draw attention to the following words of Henchy J.

“While the accused is normally entitled to a rebuttable presumption of innocence right up to the point when the jury return their verdict of not guilty, from that point onwards that presumption stands irrebuttable. So much and so immediately so, that unless the accused is being validly detained on another charge the trial judge must order his peremptory release from custody. And after the acquitted person steps out of the courtroom and breathes afresh the air of freedom, even if it should emerge afterwards that there is fresh evidence of his guilt, and even evidence provided by his own admission of guilt, he cannot be put on trial again for the offence of which he has been found not guilty by the jury. If an attempt were made to retrial him, he could successfully raise the defence known in lawyers’ French as

autre fois acquit

. That means that he could raise the plea, in bar of the second trial, that he previously been acquitted of the same offence, that in consequence the matter was res judicata and that the prosecution were thus irrevocably estopped from subjecting him to such double jeopardy.”

Nor was this attitude of Henchy J.’s novel one: in the decision of Finlay P. (as he then was) in the same case, he cited Attorney General v. Binchy [1964] IR 395. There, a Circuit Judge had directed a verdict of not guilty on the ground of the prosecution’s failure to produce the original of the return for trial. This was found to be an error. But the verdict had been recorded in the order of the Court as a verdict of not guilty simpliciter. O’Dálaigh C.J. said, and was quoted with approval by Finlay P. in the later case:

“To quash the present verdict of not guilty would not in any real sense be to quash a verdict of acquittal. Nevertheless when the jury’s verdict as recorded is a verdict of not guilty

simplicter

, this Court should act on the record for what it says. It is entirely without precedent to go behind such a verdict, and it is now too late to create one.”

If it be the case, for the reasons set out in the judgments of this Court in Walsh that this form of trial for contempt in the High Court, uniquely, does not permit of the right to jury trial, I would not regard that fact as conferring any less sanctity on a verdict of acquittal. To do so, indeed, would be to impose a double disadvantage on a defendant: firstly a deprivation of the right to jury trial, and secondly an additional scope to attack a verdict of acquittal simply because there was no provision for jury trial. The fact is that this is a verdict of acquittal on the merits. Such a verdict has never been capable of appeal, to my knowledge, in any common law jurisdiction. This was also the view, as appears from the quotations above from their judgments in O’Shea of Chief Justice O’Higgins and Chief Justice Finlay and as further appears from the judgment of Chief Justice Ó Dálaigh in Binchy.

A concern.
I am however concerned, though the point does not arise in this case, that the same chain of reasoning would seem to exclude any appeal from a conviction for contempt. Equally, I am concerned that it would exclude appeal in other circumstances - e.g. an appeal against an order refusing to award costs to a citizen tried in the Central Criminal Court and who is otherwise entitled to this relief. This, although recent Statute Law has provided an appeal for the State in such circumstances. No appeal to the Court of Criminal Appeal appears to be available to a person not “convicted on indictment”.

This is a matter for urgent legislative attention.

Conclusion.
This was an exercise of the criminal jurisdiction of the High Court. To regard a jurisdiction to convict of a criminal offence, and thereupon to impose imprisonment for an unlimited term or penal confiscation of property without any limit on the amount, as other than criminal, would be to empty the words “criminal jurisdiction” of all meaning. Indeed, as Chief Baron Palles said, it is a jurisdiction essentially criminal.

Because the order against which the Director wishes to appeal was made by the High Court exercising its Criminal Jurisdiction it is, by virtue of s.11 of the Courts (Supplemental Provisions) Act 1961, to be regarded as a decision of the Central Criminal Court.

The right of Appeal to this Court from such a decision was “abolished” by s.11 of the Criminal Procedure Act, 1993. This provision is “an exception… provided by law” from the general right of Appeal, as itself provided for in Article 34.4.3 of the Constitution.

I would therefore decline to entertain the purported Appeal.

Judgment of Mr. Justice Geoghegan delivered the 5th day of March 2008

By a notice of motion grounded on a single affidavit of one John Forde, the Director of Public Prosecutions (“DPP”) sought an order directing the attachment and committal and/or sequestration of the assets of the above-named respondents for contempt of court in respect of material published in the Evening Herald newspaper of the 2nd December, 2004 and a further order restraining the said respondents from further publishing material calculated to interfere with the trial process then in being between the DPP and Patrick O’Dwyer as referred to in the grounding affidavit. The notice of motion was dated 1st February, 2005. A short replying affidavit sworn by the solicitor for the respondents was filed and apart from those affidavits and a few exhibits therein, there was no other evidence adduced at the hearing of the motion. The purpose of the replying affidavit was to place before the court certain reports concerning the pending proceedings referred to as contained in other Irish newspapers. As will have been inferred from what I have already stated, the application was made in connection with alleged advance adverse publications relating to a person charged with a criminal offence namely, a particularly serious assault. It was the DPP’s contention that publications in the Evening Herald were calculated to interfere with the course of justice and the trial process and to prejudice the fair trial of one Patrick O’Dwyer. Contempt of court, from time immemorial, has been categorised in different ways but one of them is that all contempts are either civil or criminal. It is not in contention that the alleged contempt in this case, if it had been proved, was criminal and that therefore the respondents would have been punished for a criminal offence.

As this particular case illustrates, however, from time immemorial criminal contempt of court, if not prosecuted upon indictment in the ordinary way, has been dealt with summarily in the High Court. The historical reason for this was the urgency of obtaining such an order in many instances. Indeed there appears to be English authority to the effect that the summary procedure was only appropriate if there was this element of urgency. On this appeal, the court will not be called upon to consider any question as to whether, in cases of serious criminal contempt, a jury would be required, under the Constitution, to try disputed issues of fact. None of that arises in this case, as the application was dealt with, without objection by any party, as an ordinary motion on affidavits in the High Court. Dunne J. who heard the motion, by a reserved judgment, granted the respondents a “direction” and accordingly, refused the application. It is not necessary to consider whether “direction” was the correct terminology in the procedural circumstances of this case. The fact of the matter is that the order made was one of refusal of the application. On the findings of Dunne J. that was the correct order. Verdicts such as “guilty” and “not guilty” are not normal or appropriate in criminal contempt cases dealt with summarily upon motion.

The DPP has purported to appeal to this court from that decision. The respondents have raised a jurisdictional objection to the hearing of the appeal. Although the objection raises different and alternative issues of law, it is nevertheless one single objection and that is to an appeal from what is described as an acquittal on merits in a criminal case. That this is the objection is clear from both the written and oral submissions made on behalf of the respondents.

When the appeal came on for hearing, it was agreed between the parties and indeed encouraged by the court that the jurisdictional question would be dealt with first and the court indicated that that issue would probably have to be decided in advance of any further submissions on the merits. In a context which I will be explaining, an argument has been made in support of the jurisdictional objection that although nobody thought of it that way or would ever have thought of it that way, nevertheless Dunne J. hearing this motion for committal was, in point of law, “The Central Criminal Court”. Again for reasons which I will, in due course, explain, I have come to the conclusion that at this stage that is really the only question which this court can fairly decide. It will emerge from the judgment that I take the view that the High Court presided over by Dunne J. hearing this motion for contempt was not the Central Criminal Court. If that view were to find favour with the majority of this court it would not, in my opinion, be appropriate to give any definitive view, without further argument, by the parties on the issue of whether notwithstanding the provision in the Constitution providing for appeals to this court from all decisions of the High Court unless the right of appeal has been removed either expressly or by necessary implication by law, there is nevertheless no appeal against an “acquittal”. A number of issues arise on this aspect of the jurisdictional contention which have not yet been aired in open court and an opportunity for that to be done would, in my view, have to be given. The basic response of the DPP to the jurisdictional objection is in the terms of Article 34.4.3 of the Constitution. The relevant part of that provision reads as follows:

“The Supreme Court shall, subject to such exception and such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court ....”.

In the introduction to their written submissions, the respondents set out the questions which they say arise in this appeal and they read as follows:

“(i) Does an appeal by the DPP lie from an acquittal on the merits?

(ii) If an appeal does lie, what is the test for same?

(iii) Did the trial judge make an error such as would lead to the verdict of acquittal being overturned?

(iv) If so, what would the consequences of such a decision be?”

The respondents have indicated a broad approach to their obvious problems in this regard bearing in mind the majority decision in The People v. O’Shea [1982] I.R. 384. In addition, the respondents appear to be discrediting the concept of an appeal on the basis that this court effectively would be asked to convict the respondents of a criminal offence and to carry out its own sentencing. All of these arguments are fraught with obvious difficulties but more or less as an alternative to them or a fallback from them, the respondents rely on section 11(1) of the Criminal Procedure Act, 1993. That subsection reads as follow:

“The right of appeal to the Supreme Court, other than an appeal under section 34 of the Criminal Procedure Act 1967, from a decision of the Central Criminal Court is hereby abolished.”

In order to rely on that subsection, the respondents have to satisfy this court that Dunne J., sitting in the High Court dealing with this motion for committal, was in fact the Central Criminal Court even though that would never have occurred to her or to anybody else. This argument is based on section 11(1) of the Courts (Supplemental Provisions) Act, 1961 which reads as follows:

“The High Court exercising the criminal jurisdiction with which it is invested shall be known as An Phríomh-Chúirt Choiriúil (the Central Criminal Court) and is in this Act referred to as the Central Criminal Court.”

The wording of this subsection undoubtedly derives from Article 34.3.1 of the Constitution which is in the following terms:

“The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.”

This particular wording is identical with wording contained in Article 64 of the Constitution of Saorstát Éireann.

What is important now is to interpret correctly section 11(1) of the Courts (Supplemental Provisions) Act, 1961. This exercise involves determining the true intention of the Oireachtas in enacting the section. Even without considering the further subsections in the section, it would seem most unlikely that on that wording the Oireachtas was intending that the High Court dealing with criminal contempt motions was to be regarded as the Central Criminal Court. But it is not necessary to consider whether a court would be forced to come to that view on an artificial basis having regard to the actual wording. This is because the court in interpreting subsection (1) is clearly entitled to have regard to the other subsections within the section. They read as follows:

“(2) (a) The jurisdiction exercisable by the Central Criminal Court shall be exercisable by a judge or judges of the High Court (including the President of the High Court) nominated from time to time by the President of the High Court.

(3) Every person lawfully brought before the Central Criminal Court may be indicted before and tried and sentenced by that Court, wherever it may be sitting, in like manner in all respects as if the crime with which such person is charged had been committed in the county or county borough in which the said Court is sitting.

(4) References in any other enactment (whether passed before or after this Act) to the Central Criminal Court shall be construed as references to the High Court exercising the criminal jurisdiction with which it is invested.”

These additional subsections, in my opinion, clearly indicate that what section 11 is dealing with is indictable crime tried by juries in the ordinary way. There is nothing in the section which indicates that there was any intention to change the long established summary procedures (which were intended to deal with urgent situations) in relation to criminal contempt.

On the wording of the section alone, I would reject the argument that Dunne J., sitting on this motion, was the Central Criminal Court.

Quite apart from interpreting the actual wording, I am of the view that there are other factors which support my interpretation. Courts do not interpret statutes in a vacuum. Judges are entitled to take judicial notice of relevant context and well-known relevant historical facts. Different definitions at different times have been given to the expression “Central Criminal Court” but the differences are not material. They were simply perceived better definitions of what the court actually was. The Courts of Justice Act, 1924 defined “Central Criminal Court” in an unsatisfactory circular way as meaning “the judge of the High Court, to whom is assigned the duty of acting as such judge for the time being.” Section 4 of the Courts of Justice Act, 1926 provided as follows:

“The Central Criminal Court shall have and may exercise every jurisdiction in criminal matters for the time being vested in the High Court, and every person lawfully brought before the Central Criminal Court for trial in exercise of any such jurisdiction may be indicted before and tried and sentenced by that court wherever it may be sitting in like manner in all respects as if the crime with which such person is charged had been committed in the county or county borough in which the said Court is sitting.”

The references to the Central Criminal Court in the Courts of Justice Acts of 1924 and 1926 clearly indicate that the court carrying that name was envisaged as the branch of the High Court trying indictable crime before a jury. Long after the present Constitution came into force, that legislative regime continued and, of course, in many respects was carried over by the Courts (Supplemental Provisions) Act, 1961. I am satisfied that the change of definition of the Central Criminal Court in that Act was motivated by a perception that the new wording would constitute an improvement in draftsmanship. All judges, all courts and all practitioners are perfectly well aware that no material change took place on the ground after 1961. Contempt motions were never dealt with in the Central Criminal Court and indeed there would have been administrative problems if they were. Until very recent years and until well after the Courts Service was established, the Central Criminal Court was serviced by the Circuit Court Office and not by the Central Office of the High Court. This was in turn, of course, a throwback to the origins of the Central Criminal Court. Prior to the establishment of the new courts in 1924, an assigned judge was sent each term to Green Street courthouse under royal commissions of oyer et terminer and gaol delivery and were met at the courthouse in a solemn fashion and attended to by the Clerk of the Crown and Peace for Dublin (predecessor of the Dublin County Registrar). To some extent an equivalent of this continued right up to modern times and as I have already mentioned, servicing of the court by the Circuit Court Office only ceased recently. Before the establishment of the current Special Criminal Court the normal venue of the Central Criminal Court was the Green Street courthouse and I recall that in as late as the sixties each judge of the High Court was assigned in turn each term to that court. At all material times, the workload was indictable crime. I find it impossible to believe that the Oireachtas in enacting section 11 of the Courts (Supplemental Provisions) Act, 1961 was merely by its particular choice of wording intending to widen the scope of the Central Criminal Court.

In further support of the view which I have taken, I would refer to an aspect of the matter adverted to in the judgment of Fennelly J. which I have had the benefit of reading. If the respondents’ argument that the High Court (Dunne J.) dealing with this motion for committal was the Central Criminal Court, it follows that if the decision of Dunne J. had been to the opposite effect and she had granted the relief sought, the respondents would have no appeal to any court. It is clear from the terms of section 11(1) of the Criminal Procedure Act, 1993 that there is no appeal to this court from a final (I am using that word advisedly for a reason which I will explain) decision of the Central Criminal Court. But neither would there be an appeal to the Court of Criminal Appeal because under section 31 of the Courts of Justice Act, 1924 such an appeal only lies at the suit of “a person convicted on indictment before the Central Criminal Court …”. Realistically, it is unlikely that in enacting section 11 of the Courts (Supplemental Provisions) Act, 1961 either the Oireachtas or the draftsman adverted at all to possible implications in the wording for the procedure in summary criminal contempt cases. If it is reasonable to make that assumption which I think it is, that is yet another factor which can be legitimately considered in interpreting the section.

I am further reinforced in the view which I have taken by the dicta of Henchy J. in O’Shea cited above at 421 which are cited in the judgment of Hardiman J. and which read as follows:

“…the Central Criminal Court (which is but a description of the High Court when exercising its jurisdiction to try indictable offences).”

In this particular context Hardiman J. expresses the view that no one looking at the Act of 1993 in its context can doubt that its purpose was specifically to overrule the effect of the decision of this court in O’Shea. For my own part, I would take a slightly different view. I think it more likely that the main purpose of the 1993 provision was to remove the alternative right of appeal to the Court of Criminal Appeal or the Supreme Court. The possibility of a direct right of appeal from the Central Criminal Court to the Supreme Court arose as a consequence of the earlier decision of The People v. Conmey [1975] I.R. 341. I think that at the very least there must be doubt as to the purpose of enacting section 11 of the 1993 Act and indeed although it is not really relevant here, I think that there must be doubt as to its scope. The view taken for instance by Carney J. in The People (DPP) v. WM [1995] 1 I.R. 226 and referred to in the written submissions of the respondents that no appeal can lie from any ruling of the Central Criminal Court may not necessarily be correct. This court expressly left that question open in Sweeney v. The Rape Crisis Centre [2002] 1 ILRM 532. It is certainly arguable that the section precludes appeals to the Supreme Court from the final decisions of cases before the Central Criminal Court only and not necessarily from orders made in interlocutory applications from which there is no statutory appeal to the Court of Criminal Appeal available. In this case, of course, the decision of Dunne J. was undoubtedly a final decision. I merely refer to the issue because it was considered relevant by the respondents in their written submissions, the argument being that in the light of the judgment of Carney J. the scope of section 11(1) of the 1993 Act is “very broad”.

It may be argued that the interpretation which I give to section 11(1) of the 1961 Act is contrary to the literal interpretation and that however surprising the results might be, I am obliged to interpret the section according to the words used. Essentially, this argument would be based on the traditional approach to the interpretation of statutes which was reinforced in modern times by this court in Howard v. The Commissioners of Public Works [1994] 1 I.R. 101 and in particular the judgment of Blayney J. delivered in that case. A well-known passage in Maxwell on the Interpretation of Statutes (12th ed. 1976) was cited by Blayney J. and reads as follows:

“Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient: words are not to be construed contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the court is to expound the law as it stands, and to ‘leave the remedy (if one be resolved upon) to others’.”

In fact in that case, Blayney J. went on to question whether his interpretation did in fact create an absurd result. I am satisfied that even the traditional jurisprudence on interpretation of statutes does not inhibit this court from holding what everybody in reality would have believed namely, that the Central Criminal Court did not include the sitting of an ordinary High Court judge in the High Court in the ordinary way hearing a committal motion albeit a criminal contempt.

Denham J. who was a member of the majority of this court in Howard has in more than one case referred to the importance of adopting a purposive approach to interpretation so that the true intention of the Oireachtas can emerge. In DPP (Ivers) v. Murphy [1999] 1 IR 98 at 111, she approved the following dicta from Lord Griffiths in the House of Lords case Pepper v. Hart [1993] AC 593.

“The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation …”

Immediately after that citation, Denham J. comments as follows:

“I would concur with this approach. However, no method of interpretation may be such as to encroach on the constitutional role of the Oireachtas as the legislative organ of the State. The rules are applied to interpret the acts passed by the legislature and in so doing afford the respect appropriate from the judicial organ of government to the legislature.

The rules of construction are part of the tools of the courts. The literal rule should not be applied if it obtains an absurd result which is pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be read in the section without rewriting the section then that is the appropriate interpretation for the court to take.”

To interpret section 11(1) of the 1961 Act in the way I have done and in the way Fennelly J. seems to have done in his judgment does not appear to me to constitute “rewriting the section” but rather interpreting it purposively and in context as otherwise the provision would have most surprising and clearly unintended results.

A recent incidence of the purposive approach to interpretation by this court is contained in the judgments in Bemis v. The Minister for Arts, Heritage, Gaeltacht and the Islands (unreported decision of this court delivered 27th March 2007). The lead judgment was delivered by Macken J. who first referred to the judgment of Blayney J. in Howard v. The Commissioners of Public Works cited above and in particular to the following quote from Craies on Statute Law (1971) (7th ed.) at p. 65 quoted by Blayney J.

“The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation the primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act use the words in dispute.”

Macken J. went on however to refer to the purposive construction test enunciated by Denham J. in DPP (Ivers) v. Murphy also cited above pointing out however that the intention “must nevertheless be obvious from the words actually chosen”. Once section 11 is read as a whole and in context as I have suggested, it is reasonable and appropriate to interpret it as not including summary applications for attachment or committal to the High Court.

At this stage, I would like to refer briefly to the English case law although I do not think that any material assistance can be gained from it. Indeed it is not altogether clear whether over the years the English and Irish law on contempt has diverted. There appears to be authority in England, for instance, that sequestration is not an appropriate remedy for criminal contempt, yet it is included in this motion and indeed has been included in previous Irish cases. Interestingly, the Halsbury volume on Contempt i.e. 4th edition, volume 9 in a footnote to paragraph 4 says the following:

“Formerly the most important characteristic of (criminal contempt) was the absence of a right of appeal from an order of committal for criminal contempt. A right of appeal is now conferred in cases of criminal and civil contempt by the administration of Justice Act, 1960, section 13.”

The whole thrust of the treatment of contempt of court in Halsbury is that there is no major distinction between criminal and civil contempt though there are some differences. Once the right of appeal was applied to both in 1960 the remaining differences, as listed, are either minor or obscure. Paragraph 4 itself states that criminal contempts are distinguished by the following characteristics:

1. Privilege is not allowed.

2. The sheriff may break open an outer door in executing the process and perhaps may execute it on Sunday.

3. The order of discharge from custody may be made conditional on the payment of costs.

4. The writ of sequestration is inapplicable to criminal contempts.

5. The prerogative of the Crown extends to the remission of a sentence for criminal contempt but the Crown never interferes in the case of a contempt that is not criminal.

Of further interest is the comment of Salmon LJ (as he then was) in the case of Jennison v. Baker [1972] 1 All E.R. 997 at 1002 which reads as follows:

“Contempts have sometimes been classified as criminal and civil contempts. I think that, at any rate, today, this is an unhelpful and almost meaningless classification.”

That comment is specifically cited in Halsbury.

I have mentioned these references a propos of the view expressed by Hardiman J. in his judgment that contempt proceedings are not proceedings which are “sui generis”. I am in the somewhat strange position that I agree and disagree with that comment. I agree in the sense that criminal contempt even if tried summarily is a criminal offence and that the defendant is entitled to whatever constitutional rights should apply to the hearing. Putting it that way, leaves open the question of entitlement to a jury in any particular circumstances (an issue which as I have already mentioned does not arise here). I agree also that the most important recent authority in support of this proposition is The State (DPP) v. Walsh [1981] I.R. 412 though I think that no particular significance can be attached to the remark of O’Higgins C.J. that “such proceedings” can be correctly described in reality as “a charge of a criminal offence”. That simply begs the kind of procedural questions involved here.

Where I disagree that contempt proceedings are not sui generis is in relation to the historical procedures which have applied from time immemorial and up to the present in relation to contempt proceedings. In my opinion, that is a respect in which they are quite obviously sui generis. I think that if anything the quotation from Palles C.B. in AG v. Kissane 32 LR Ir 220 referred to in AG v. O’Kelly [1928] I.R. 308 and fully set out in the judgment of Hardiman J. bears out the separate aspects of the contempt jurisdiction even though in so far as it involves fining and imprisoning that jurisdiction as pointed out by the Chief Baron is “essentially criminal”. As Hardiman J. points out, that would mean, for instance, that the criminal standard of proof must apply.

The fact that accusations (to use a non-legal term) of criminal contempt however serious have been tried summarily by judges over the centuries makes them sui generis in a procedural sense. Indeed there is one aspect of their uniqueness which I have not up to now mentioned. Quite apart from cases of contempt in the face of the court, criminal contempts are offences against the administration of justice itself and are, therefore, offences not exclusively external to the court itself even if the party applying for the attachment or committal is himself offended.

For all these reasons and having regard to context and procedural history, I am quite satisfied that this court does not have to interpret section 11(1) of the 1961 Act in a strictly literal fashion with consequences clearly unintended which might be widely regarded as absurd. In my view, by no stretch of the imagination was Dunne J. sitting in the High Court in the ordinary way to deal with this motion the Central Criminal Court and it would never have occurred to anybody that she was. I believe that those factors are actually relevant and that I am not merely indulging in rhetorical flourish.

I would, therefore, hold that that court was not the Central Criminal Court. I believe that that is all which this court should hold at this stage. In my view, the arguments as to whether this court lacks jurisdiction to overturn the acquittal, as it is described, will be different depending on the court’s finding on the Central Criminal Court issue.

JUDGMENT of Mr. Justice Fennelly delivered the 5th day of March 2008.

1. The Respondents have made a preliminary objection to the jurisdiction of this Court to hear this appeal. They submit that no appeal lies from the decision of the High Court (Dunne J.), refusing the application of the Appellant to attach or commit the Respondents for contempt of court. Determination of that issue depends on the correct interpretation of s.11 of the Criminal Procedure Act, 1993 combined with s. 11 of the Courts (Supplemental Provisions) Act, 1961.

2. The appellants say: a) the contempt jurisdiction of the High Court is a criminal jurisdiction; b) the High Court, when exercising its criminal jurisdiction, including its power to attach or commit for contempt of Court, is called the Central Criminal Court (s. 11 of the Act of 1961); c) there is no appeal from the Central Criminal Court to this Court (s. 11 of the 1993 Act).

3. The appellant applied by notice of motion to the High Court for an order directing the attachment and committal and/or sequestration of the assets of the Respondents and each of them for contempt of court in respect of material published in the Evening Herald on 2nd December 2004. The notice of motion also sought an order restraining the Respondent from further publishing material “calculated to interfere with the trial process now in being between the Applicant [the appellant] and Patrick O’Dwyer……” The application was grounded on an affidavit sworn by Mr John Forde, a solicitor in the Office of the Chief Prosecution Solicitor. Mr Forde deposed that, on 1st December 2004, one Patrick O’Dwyer had appeared before the District Court in Ennis, County Clare, charged with murder. He exhibited a copy of the Evening Herald published on 2nd December 2004. He alleged that the contents of the article were calculated to interfere with the course of justice and the trial process and to prejudice the fair trial of the said Patrick O’Dwyer, that they were in breach of the sub judice rule and amounted to a contempt of court. According to the affidavit, the Evening Herald is published by the first-named Respondent, the second-named Respondent is its editor and the impugned articles were written by the third-named Respondent. A brief affidavit on behalf of the Respondents was sworn by Ms Paula Mullooly, solicitor.

4. The application was heard by Ms Justice Dunne. At the conclusion of the presentation of the case on behalf of the appellant, counsel for the Respondents applied to the learned judge for “a direction,” or non-suit, relying on the principle that a trial court may direct an acquittal at that point. It was submitted that it was essential that there be proof before the court of a real risk of interference with a criminal trial and that no evidence had been adduced by the prosecution to demonstrate that the publication of which complaint was made created any real risk of interference with the due administration of justice in the prospective criminal trial of the said Patrick O’Dwyer.

5. Ms Justice Dunne delivered a reserved judgment on 3rd May 2005. She referred extensively to authority. She noted that what was alleged was a criminal contempt of court. She held that she was bound to apply the criminal standard of proof. Accordingly, the appellant had to show that the Respondents were guilty beyond reasonable doubt of contempt of court. On careful consideration of the application of the appellant, she could not conclude that it had been shown that the articles complained had given rise to a real risk as distinct from a remote possibility of prejudice to the fairness of the trial. Hence, she refused the application.

6. The appellant, in his notice of appeal advances principally the contention that the learned judge had incorrectly failed to consider whether the appellant had made out a prima facie case that the Respondents had committed a contempt of court. The Respondents raised, in their written submissions, the question whether an appeal lies, as a matter of principle, from the decision of the High Court, which amounts to an acquittal in a criminal proceeding. That contention takes two forms. Firstly, the Respondents refer to the historic common-law rule, described as an elementary principle, that:

“an acquittal made by a court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other court.” (per Palles CB in R(Kane) v Tyrone Justices (1906) 40 ILTR 181).

7. Reference was also made to the dictum of O’Dalaigh J in State(Attorney General) v Binchy [1964] 395, at 416 that it was “entirely without precedent to go behind [a not guilty] verdict and it [was] now too late to create one.” The submissions proceed to refer to the decisions of this Court in The People(Attorney General) v Conmey [1975] I.R. 341 and The People(Director of Public Prosecutions) v O’Shea [1982[ I.R. 384, describing the first as “highly controversial” preferring the dissenting views in the case of the latter. If the Court were to consider reviewing or over-ruling these precedents it would be necessary to make reference is made to the authorities governing the circumstances in which the Court will depart from precedent. None of that arises at this point. Secondly, the submissions rely on s. 11(1) of the Act of 1993 and the identically numbered provision of the Act of 1961. It is the latter point which the Court has decided to consider as a preliminary issue. The first one remains open.

8. The entire issue depends on whether Dunne J was sitting as a judge of the Central Criminal Court. As Hardiman J has observed in the judgment which he has delivered, “no person, and certainly no lawyer, would speak naturally of the Court in which Ms. Justice Dunne sat and disposed of the Director’s application as “The Central Criminal Court.” That is certainly true. The question remains whether the wording of the two cited sections is sufficiently clear and unambiguous to oust the constitutionally ordained appellate jurisdiction of this Court. There is no doubt that this is a difficult question. There is great force in the conclusion expressed by Hardiman J. I have come, nonetheless, to a different conclusion. I need to consider the nature of the contempt jurisdiction. I must say, at once, that I fully accept that it clear beyond argument that the jurisdiction is of a criminal character. I consider, nonetheless, that the manner of its exercise, both historically, and, as it is at present exercised by the High Court, is of relevance. Most crucially, I will consider the nature of the jurisdiction exercised by the Central Criminal Court.

9. The proposition that a court, called upon to exercise its contempt jurisdiction is dealing with a criminal matter is well established. The nature of the remedy is determinative. The primary remedy sought in the Notice of Motion is the “attachment and committal and/or sequestration of the assets of the Respondents…”

10. The judgment of O’Sullivan P, in the High Court of the Irish Free State, in Attorney General v O’Kelly [1928] I.R. 308 traced common-law authorities back to the eighteenth century. It was, according to Wilmot C.J. a power to “fine and imprison for contempt of court.” (R v Almon 1 Wilm. 243). Palles C.B. thought that “no one will contend that the jurisdiction to fine and imprison is not essentially criminal.” (Attorney General v Kissane 32 L.R. I.R. 220). O’Higgins C.J. said as much in his judgment in State (Director of Public Prosecutions) v Walsh [1981] I.R. 412 at 429.

11. The object and incidents of the jurisdiction may be discerned from the same historic sources and have been consistently reiterated down to our own time. It is, to cite Wilmot C.J. once more, that of the courts “vindicating their own authority……” He also drew attention to the contrasting methods of procedure, namely by attachment and by trial by jury. In a further part of his judgment, also cited by O’Sullivan P, he explained the need for the former procedure by the need:

“…to deter men from offering any indignities to Courts of Justice, and to preserve their lustre and dignity, it is a part of the legal system of justice in this kingdom that the Court should call upon the delinquents to answer for such indignities, in a summary manner, by attachment,…”

12. O’Sullivan P. continued to reject the contention that the jurisdiction had not been carried over by the 1922 Constitution, stating, at page 318:

“I am of opinion that Art. 72 [of that Constitution] 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.”

13. Meredith J, in his dissenting judgment, spoke of: “the supreme end in view—the preservation of due respect for the law” (page 325). Since the foundation of the State and, specifically, since the enactment of the present Constitution, the Courts have consistently held that they have an inherent jurisdiction to punish summarily contempt of court, whether taking the form of contempt in the face of or out of court. (see In re Earle [1938] I.R. 412; Attorney General v Connolly [1947] I.R. 213.)

14. The contempt jurisdiction derives from the need for the courts to be in a position to act speedily to protect the respect and dignity of the courts themselves in the independent exercise of their functions and, equally importantly, to protect the judicial process from contamination by, inter alia, prejudicing parties, witness or jurors or risking the fairness of trials. At this point in the present proceedings, there is no need to consider the applicability of these procedures to the instant case. The need for a summary remedy justifies a summary procedure. Attachment and potential committal were devised for that purpose. The procedures are laid down by Order 44 of the Rules of the Superior Courts. They are the procedures employed by the appellant in the present case. The appellant has served a Notice of Motion, grounded on an affidavit. The essence of his complaint, as set out in a grounding affidavit, is that the Respondents have published newspaper articles “calculated to interfere with the course of justice and the trial process and to prejudice the fair trial of…” one Patrick O’Dwyer. Dunne J dismissed the application. It is from that decision that the appellant seeks to appeal to this Court.

15. The two relevant statutory provisions act in combination. S. 11(1) of the Act of 1993 provides:

“The right of appeal to the Supreme Court, other than an appeal under section 34 of the Criminal Procedure Act, 1967, from a decision of the Central Criminal Court is hereby abolished.”

16. Thus, if the decision made by Dunne J was, as a matter of law, a decision of the Central Criminal Court, there is no appeal. Whether or not it was such a decision, must depend on s. 11(1) of the Act of 1961. I cite the entire section. It provides:

“1) The High Court exercising the criminal jurisdiction with which it is invested shall be known as An Phríomh-Chúirt Choiriúil (The Central Criminal Court) and is in this Act referred to as the Central Criminal Court.

(2) ( a ) The jurisdiction exercisable by the Central Criminal Court shall be exercisable by a judge or judges of the High Court (including the President of the High Court) nominated from time to time by the President of the High Court.

17. The key question relates to the meaning of the expression, the “High Court exercising the criminal jurisdiction with which it is invested.” It has to be accepted that, on a literal interpretation, it might be held to apply to the jurisdiction exercised by Dunne J in this case. Against that is the very strong intuitive point that nobody, in practice, would consider that Dunne J was sitting as a judge of the Central Criminal Court. In the end, I think there is good legal reason for that.

18. However, before further consideration of that central question, I will refer to two issues of more general importance.

19. The first concerns the appellate jurisdiction of this Court. Article 34.4.3 of the Constitution provides:

20. It is a well established proposition that, where it is contended that any provision of any statute prevents or limits the right of appeal to this Court, it must be clearly shown that it has that result. As was stated by Walsh J, with whom Doyle J agreed, in People (Attorney General) v Conmey [1975] I.R. 341 at 360:

“I wish to express my view that any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court, or any particular provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and unambiguous. The appellate jurisdiction of this Court from decisions of the High Court flows directly from the Constitution and any diminution of that jurisdiction would be a matter of such great importance that it would have to be shown to fall clearly within the provisions of the Constitution and within the limitations imposed by the Constitution upon any such legislative action.”

21. O’Higgins C.J., at page 354 of the report in that case, stated:

“Since its appellate jurisdiction from decisions of the High Court is written into the Constitution, this can only be restricted or regulated by legislation clearly intended to have this effect.”

That interpretative principle was reiterated by Keane C.J. in A.B. v Minister for Justice, Equality and Law Reform [2002] 1 IR 296 at 303: “the right of appeal to this court provided for in Article 34.4.3 may only be removed or abridged by a statutory provision which is clear and unambiguous.” That principle must be borne in mind when interpreting s. 11 of the Act of 1993.

22. The second general issue is a closely associated one. If the Respondents are corrected in their contention, s. 11 precludes any appeal from a High Court decision to acquit of a charge of contempt, such as in the present case. The inevitable corollary would appear to be, however, the even more far-reaching one that there would equally be no appeal in the case of conviction. The section addresses itself generally to decisions of the Central Criminal Court. It makes no distinction between acquittal and conviction. A person found guilty of contempt of court. i.e., convicted, will have been so found pursuant to the summary procedure for attachment and commital, and not on indictment. The right to appeal from conviction in the Central Criminal Court to the Court of Criminal Appeal applies only to persons convicted on indictment. This follows from s. 31 of the Courts of Justice Act, 1924. That section provides that, subject to provisions relating to a certificate granting leave, a “person convicted on indictment before the Central Criminal Court …… appeal under this Act to the Court of Criminal Appeal……” S. 31 was, as stated by this Court in People (Attorney General) v Conmey, cited above, “…re-enacted in relation to the……Court of Criminal Appeal…” (See O’Higgins C.J. at 354), by s. 48 of the Act of 1961. It is clear that a person found to have been in contempt of court has no right of appeal to the Court of Criminal Appeal. So far as I am aware, no attempt has ever been made to bring such a case before that court.

23. A statutory provision having the effect of prohibiting any appeal from conviction of a criminal offence would be, to the least, very surprising. If it were constitutionally possible, it would certainly require clear wording.

24. I then turn to consider the two sections, both enumerated 11. I cannot entertain any doubt as to the meaning os s. 11 of the Act of 1993. It “abolishes” the right of appeal from the Central Criminal Court to the Supreme Court. Until this Court decided People (Attorney General) v Conmey, it had not been claimed that any such appeal lay. It seems reasonable to infer that the primary objective of s. 11 was to abolish the right of appeal so identified, as well as the possibility of appeal by the prosecution found, by a majority of this Court, to lie in the case of an acquittal, in the later case of The People (Director of Public Prosecutions) v. O’Shea [1982] I.R. 384. It seems highly unlikely that the legislature had it in mind to prevent appeals from either conviction or acquittal in cases of contempt of court.

25. I have to accept that the language of the sections is unhelpful. Where, however, the objective is to limit the appellate powers of this Court, I am satisfied that the wording used would need to be very clearly expressed so as to apply to cases heard under the effectively civil rules relating to attachment and committal. It is far from being so.

26. Everything in the context of s. 11 of the Act of 1961 points to its being concerned with the normal business of the Central Criminal Court, the conduct of trials on indictment. Sub-section 3 provides that persons “may be indicted before and tried and sentenced by that Court……” Sub-section 2 refers to the jurisdiction of the Central Criminal Court being “exercisable by a judge or judges of the High Court (including the President of the High Court) nominated from time to time by the President of the High Court.” That provision replaced s. 3 of the Courts of Justice Act, 1924, which had envisaged “the judge of the High Court, to whom is assigned the duty of acting as such Court for the time being.” In each case, some degree of formality is involved: a judge or judges is or are assigned to sit in the Central Criminal Court. It is not suggested, in the present case, that any such step had been taken in the case of Dunne J, in reference to the present case.

27. Sub-section (1) provides that the “High Court exercising the criminal jurisdiction with which it is invested” is to be known as the Central Criminal Court. S. 8 of the Act of 1961 provides for the “vesting” of jurisdiction in the High Court generally. S.8(2) provides:

(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.

28. S. 14 provides that all courts, including the Central Criminal Court are to exercise their jurisdiction “in the manner provided by rules of court.” Order 86 of the present Rules deal with the exercise of the jurisdiction of the Central Criminal Court. As one would expect, those rules, like their predecessors, contemplate only trial on indictment. S. 25, provided that “the Circuit Court shall have and may exercise every jurisdiction as respects indictable offences for the time being vested in the Central Criminal Court……”

29. I conclude that everything in the statutes and the rules suggests that the Central Criminal Court has jurisdiction to conduct trials on indictment. It does not, to use the language of the section, “invested” with any other jurisdiction. I do not believe that applications for attachment or committal, as provided for by Order 44 come within the jurisdiction of the Central Criminal Court.

30. It follows that, since Dunne J was not exercising the jurisdiction of the Central Criminal Court, s. 11 of the Act of 1993 does not prevent the appellant from appealing to this Court.