Judgment delivered the 14th day of March, 2014 by Mr. Justice William M. McKechnie.
Background:
1. This is an appeal from the judgment of Hedigan J. delivered on the 17th September, 2013 and from the resulting order perfected on the 18th September, 2013 (“the committal order”). In that order it was directed that the third named respondent (or “Mr. Hanrahan” or “the appellant”) be jailed for contempt for a period of six months (see para. 16 infra), unless he shall have carried out certain remedial works on lands at Graiguedrisly, Rathdowney, Co. Laois on or before 4th February, 2014. Costs were said to follow the event. Having served appeal notices in respect of that order and in respect of the anterior order of the 24th May, 2012, an application was successfully made to this Court for a stay on the enforcement of the committal order until the appeal in respect thereof was determined. This is my judgment on the issues raised in that appeal.
2. The applicant/respondent is a local authority (“the Council” or “the local authority”), whose functional area covers the county of Laois and as such, has the powers, functions and responsibilities vested under the provisions of the Waste Management Acts 1996 to 2011, as amended.
3. The first and second respondents were the registered owners of certain lands, premises, and hereditaments, being those described in Folio 1905 County Laois. The third named respondent is their son and is the person whom at the relevant time, was entitled to the occupation of such lands by virtue of an Indenture of Lease executed on or about the 11th October, 2007. In May, 2013 Mr. Hanrahan Senior died with the result that the sole ownership of the lands has now passed to his wife by right of survivorship. The third named respondent is the only appellant in the instant appeal.
4. On the 6th April, 2011, the Council received an anonymous complaint, that illegal dumping had or was taking place on an old quarry section of these lands. Arising therefrom, scientists from the local authority attended at the subject site for the purpose of investigating the complaint. In her grounding affidavit, Ms. Ann Marie Callan, an Executive scientist with the Council, stated that immediately upon entering the site, she and her colleague detected a “strong, foul smell consistent with waste disposal” and identified waste at a location adjacent to the shed in the adjoining yard. They observed tractor type tracks leading from the yard to the surrounding farmlands and ultimately to a further area of approximately 1 acre, where waste had evidently been deposited: the material in question consisted of domestic waste; mixed waste, including construction waste and demolition waste; and waste comprising wood, plastics and metals. There was also windblown litter seemingly quite visible over the site and field generally.
5. A number of follow up visits were made to the lands by Council officials and outside consultants retained on its behalf, as a result of which a most comprehensive and detailed environmental assessment report was compiled and finalised in June, 2011. This highlighted a very serious situation of illegal dumping, involving on a best estimate basis, a deposit of somewhere between 960 and 1,840 tonnes of material which had been on-going for about six weeks. On the basis of this and other evidence the Council, having estimated the removal, remedial and associated costs at about €300,000, issued an originating notice of motion on the 10th November, 2011, wherein it sought appropriate relief under s. 58 of the Waste Management Act 1996, as amended (“the 1996 Act”).
6. By the ultimate hearing date of that motion, the only replying affidavit filed was that of the first named respondent who denied all knowledge of the activities complained of and who attributed full responsibility for the lands to his son, Colm. On the 3rd May, 2012 the High Court found that each of the respondents were liable under the 1996 Act in respect of such dumping. It adjourned the finalisation of the order so as to permit the parties to make submissions as to its terms. Nothing of assistance emerged from the respondents in this regard and accordingly, by order dated the 24th May, 2012 (“the s. 58 order”), the Court directed the immediate discontinuance of all dumping and made provision for remediation of the lands, in accordance with the terms of the schedule attached thereto. As can be seen therefrom, the proposed restoration works were to commence on the 9th July, 2012 and were to be completed no later than the 1st September of that year.
7. A notice of appeal dated the 19th June, 2012 was served in relation to this order but was withdrawn, without explanation, on the 24th January, 2014.
8. The s. 58 order was complied with as to its prohibitory terms, insofar as no further dumping has occurred since the 24th May, 2012, but it otherwise was disregarded. As no waste had been removed from these lands by April, 2013, the Council decided that enforcement action was necessary and accordingly issued a motion seeking orders of attachment and committal, some eleven months after the said order was made. In light of the subsequent death of the first named respondent, the motion obviously, was not proceeded with against him and neither was it against Mrs. Hanrahan, on what can only be described as compassionate grounds.
9. Effectively, and for the first time, the appellant, on whom service of the s. 58 order with the penal endorsement proved quite difficult, engaged with the process, and as part thereof, retained the services of Michael Reilly & Associates, a firm of consultant engineers. A number of affidavits were thereafter filed by or on behalf of Mr. Hanrahan, in which his varying position was set out, as the motion was adjourned from time to time until its final disposal on the 17th September, 2013.
10. In these affidavits, the following has been averred to:-
(a) Mr. Reilly and, on his advice, two other experts were retained in July, 2013; a remediation programme was drawn up and a payment plan, setting out the costings for the removal and disposal of the waste, was agreed upon with a holder of an appropriate licence.
(b) Some excavating and stockpiling work commenced that month, but removal was postponed at this point to make a traffic management plan, which plan was later deemed unnecessary as the condition of the waste required a more protracted transport and disposal process.
(c) Shortly after this it became clear that the costings above referred to failed to take into account a landfill levy, statutorily payable in respect of each tonne of waste disposed of at a landfill facility (paras. 38 to 40 infra).
(d) Mr. Hanrahan says that he is unable to finance this levy, and so, the waste has never been removed.
(e) A suggestion was then made that the Council should retain Mr. Reilly and carry out the works itself, as in that way the levy may possibly be avoided under an exempting provision of the Regulations (paras. 38 to 40 infra).
(f) On the 16th September, 2013 the appellant referred, for the first time, to a falling out with his father, whom he described as a traditionalist Catholic, because of his marriage breakdown: he offered this as one of the reasons why he had no knowledge of what had happened on these lands since in or about 2009, having effectively been excluded from possession since that time. He further states that even though his father is now dead, his mother’s illness and his own return from working abroad are the reasons for the remedial inaction.
(g) Mr. Hanrahan says that contradictory claims by his father that he, the appellant, was responsible for the operation of the lands at the pertinent time, can be explained by the former’s concern that tax reliefs availed of, could be recovered if the true position became known.
(h) It is claimed or perhaps more accurately insinuated by the appellant that the origin of the dumping lay in an agreement made between his father and a Mr. O’Connor under which the latter was permitted to remove sand from the quarry section of the lands: it is said however that nothing further was agreed.
(i) On further inquiry it was discovered that the Greyhound Group - specifically Greyhound Waste and Recycling Ltd. (“Greyhound”) - was the dumper, and that it was the appellant’s intention to institute proceedings against that party.
(j) An explanation for any apparent evasiveness by the Hanrahans is then offered: such is said to have resulted from the appellant’s non-participation in the original proceedings and their lack of knowledge of correspondence in preparation for same.
(k) Finally, committal would result in Mr. Hanrahan losing his job, thereby exacerbating his inability to finance remedial works and to pursue legal action against Greyhound which would consequently go unpunished.
11. The above was the state of the evidence, obviously outlined in greater detail than that as recited here, upon which the High Court made its decision on the committal motion.
The Judgment and Order:
12. At the outset it was stated by the Court that it felt duty bound to act in a case of this nature, given the national and international context in which the environment had to be protected. Notwithstanding that however the learned trial judge, who incidentally also granted the s. 58 order, was at pains to stress that the making of what was intended, namely an “unless” order, was a course of last resort, and had been decided upon so as to further impress upon Mr. Hanrahan the importance and necessity of complying with the s. 58 order. Whilst acknowledging that some attempt towards compliance had been made, it was noted that this had now completely ceased because of his alleged financial inability to pay the above mentioned levy.
13. The learned trial judge refused to further adjourn the motion so that the proceedings against Greyhound could be prosecuted, seeing no merit in that proposal given the appellant’s extraordinary dilatoriness to date regarding this matter. In addition, as the plea of impecuniosity was advanced on the thinnest possible evidence, without any supporting documentation, it too had to be rejected. There was, after all, according to the judge, land of about 100 acres in the family, which despite in whose ownership it was, could not be disregarded, particularly given that the s. 58 order was also made against such owners. The local authority could not be asked to bare the financial burden involved: such rests squarely on the shoulders of the polluters who in this instance includes the appellant.
14. In support of the appropriateness of the intended order, there then followed in the judgment a quotation from para. 39 of the decision of Finnegan P. in Shell E. & P. Ireland Ltd. v. McGrath & Ors. [2007] 1 IR 671 (or “Shell”), which was itself quoted with approval by Fennelly J. in Irish Bank Resolution Corporation Ltd. & Ors. v. Quinn & Ors. [2012] IESC 51 (“Quinn”) at para. 91. It reads:
“Committal by way of punishment likewise should be the last resort. It should only be engaged where there has been serious misconduct. In such circumstances it can be engaged in order to vindicate the authority of the court. In litigation concerning exclusively private rights this will usually occur only at the request of the plaintiff. Circumstances may exist which cause the court to act on its own motion: Jennison v. Baker [1972] 2 Q.B. 52, Seaward v. Patterson [1897] 1 Ch 545. However where the interest of the public in general is engaged or where there is a gross affront to the court it would be appropriate for the court to proceed of its own motion to ensure that its orders are not put at nought. I am satisfied that such a power must be inherent in the court. In the words of Judge Curtis-Raleigh:-
‘The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.’”
15. The Court was satisfied that to date it had done everything possible to hold its hand, as the local authority had. However, in light of the serious misconduct on the part of the appellant, involving as it did a gross violation of the environment, an “unless order” in the following terms was appropriate.
16. The order, as perfected reads as follows:-
“And upon reading the Order aforesaid … and the Court being satisfied that the Third Named Respondent is guilty of contempt of Court by disobeying the said Order dated 24th May 2012 …” (“Recital part”)
“The Court doth adjudge that the Third Named Respondent is guilty of contempt of this Court by reason of such default and that he be committed for such contempt to Mountjoy Prison to be detained therein for a period of six months or such further period as this Court shall direct UNLESS the provisions laid down in the Schedule herein are complied with in full and in accordance with the time limits therein specified.” (“Adjudicative part”)
“Accordingly, IT IS ORDERED that the Applicant be at liberty to issue an Order of Committal directed to the Commissioner and Members of the Garda Siochana and the Governor of Mountjoy Prison to arrest the Third Named Respondent, one COLM HANRAHAN and thereupon to lodge him in Mountjoy Prison there to be detained for a period of six months commencing upon the arrest of the said Colm Hanrahan, unless he shall have complied with the provisions laid down in the Schedule herein in full and in accordance with the time limits therein specified.” (“Warrant part”)
All emphasises are mine.
Notice of Appeal:
17. Although nineteen grounds of complaint are submitted in support of this appeal, these may be classified as follows. The trial judge erred in fact and in law in:
(i) misapplying/misinterpreting the appropriate tests in:
(a) relation to committal on the authorities;
(b) failing to have regard to the fact that where a defendant has admitted breach of a court order, the jurisdiction of the court is coercive;
(c) holding that even in such circumstances it was open to the Court to make an “unless order” for committal on a punitive rather than on a coercive basis;
(ii) making unsupported determinations:
(a) in making any committal order, much less an “unless order” which
was unwarranted on the facts;
(b) in holding that the appellant was guilty of culpable non-compliance
without any grounds for same;
(c) in accepting the Council’s assertions that the appellant’s affidavit
evidence lacked veracity - in particular in relation to the history of the
lands and also regarding his own means and income;
(iii) in failing to have adequate regard to:
(a) the unrealistic burden such an unless order would have on the appellant, given his inability to comply.
Appellant’s Submissions:
18. The appellant accepts that notwithstanding the historical distinction such that civil contempt orders are coercive in nature and criminal contempt orders are punitive in object, it is possible nonetheless for the former to also involve a punitive element. This will however only be so where the level of the contempt is “outrageous”, “wilful”, “flagrant”, or where it constitutes “serious misconduct”. Moreover, punitive contempt sentences should be for a fixed period, scaled to reflect the seriousness of the contempt: Quinn; Shell; Laois County Council v. Scully & Ors. [2009] 4 IR 488; and Howitt Transport Ltd. & Anor. v. Transport and General Workers’ Union [1972] I.R.L.R. 93.
19. It is asserted that the actions of the contemnor in this case could not, on any evaluation, be said to have reached any such high threshold: on the contrary, when the available evidence is viewed correctly, it falls at the lowest end of the scale. On the one hand this seems to have been accepted by the learned trial judge, when referring to the efforts made to comply with the s. 58 order, but thereafter such efforts appear to have been entirely discounted, as the judge wrongly disregarded evidence of (i) financial incapacity such as to make it impossible to comply with the levy, (ii) the appellant’s exclusion from the lands in question because of some family dispute with his father, and (iii) the action taken against Greyhound. Moreover, it was also incorrect to regard as material the family lands which were by then solely owned by the second named respondent.
20. In addition, the trial judge did not confine his consideration of the appellant’s conduct to the events giving rise to the breach of the s. 58 order, but rather placed great emphasis on the conduct which gave rise to the making of that order in the first instance. This it is claimed was a misinterpretation of the case law, as the Court cannot concern itself with extraneous matters unconnected with the contempt.
21. Further where there is no prospect of the addressee of an order being able to comply with its terms, the court should refrain from making such order: Aranbel Ltd. v. Darcy & Ors. [2010] 3 IR 769. Likewise, a finding of contempt must be set aside where compliance with the original order was (or has become) impossible: Dublin City Council v. McFeely & Ors. [2013] 1 ILRM 40. Thus, though in this case the impossibility of compliance with the s. 58 order arose only after its making, nonetheless it is submitted that such order should now be regarded as unenforceable.
22. The trial judge also failed to properly balance the circumstances giving rise to non-compliance against the consequences of committal, which included the fact that Mr. Hanrahan would lose his liberty as well as his ability to earn a livelihood. Noting that no prosecution was taken either under s. 11 of the 1996 Act or at all, the judgment on the committal application comes close to, if not in fact amounting to, a form of double jeopardy.
23. Finally, even if notwithstanding the submissions made the trial judge was still minded to make an order for committal, it was inappropriate for him to grant one providing for a fixed period of imprisonment. In all the circumstances the making of an unless order was quite unjustified.
The Council’s Submissions:
24. The respondent accepts that the appropriate principles are those referred to or found in Shell and Quinn. It relies on the High Court judgment and says that the same is reflective of these principles. In particular it takes a definite position on the sentence of six months, saying that it was imposed as a coercive measure. When one looks at the order as a whole it is clear that if at any time within that period the appellant should purge his contempt, he will at that point be released and any remaining balance of the sentence will be vacated. It is not suggested, at least expressly, that there is any punitive element in this sentence. Given the history, the nature and the gravity of the waste violation and the conduct of the appellant, the order is appropriate and indeed in both fact and law is proportionate.
25. The submissions of the Council dwell heavily on the facts relating to Mr. Hanrahan’s conduct. He took no steps whatsoever between the discovery date in April, 2011 of the dumping and the institution of these proceedings some seven months later. Likewise, between November, 2011 and the making of s. 58 order. Again, the only steps taken by him up to July, 2013 was the sending of a fax dated the 7th August, 2012, but not received by the local authority until the 7th September, 2012, suggesting that Greyhound was responsible. When a solicitor and an engineer were eventually retained, the first excuse offered for non-compliance was based on an alleged health and safety risk regarding traffic. When challenged, the allegation was dropped and did not resurface.
26. It was only on the 29th July, 2013 that the appellant mentioned for the first time that he could not afford to carry out the remedial works. Further, it was only in his affidavit of the 16th September, 2013, a day before the contempt hearing, that he alleged any difficulty in obtaining access to the lands as a result of some family dispute which he claims to have had with his father. When one also considers the difficulties encountered in serving the s. 58 order, as well as the necessity to bring two motions before the Supreme Court so as to get the books of appeal and the submissions lodged, the strategy adopted by the appellant was a combination of totally disregarding and utterly frustrating the court orders.
27. In addition the local authority has grave doubts regarding the family dispute and its alleged effects: such allegation is in direct contradiction to (i) what was averred to by the appellant’s late father in that respondent’s affidavit filed on the 6th February, 2012, and (ii) Mr. Colm Hanrahan’s own statement addressed to, and later recorded in writing by, Council officials: see para. 10 of the affidavit of Ms. Callan sworn the 27th October, 2011. In addition this suggestion is altogether surprising given that he was served with proceedings in November, 2011 and in May, 2012, at his parent’s home.
28. Dealing with the paucity of the financial information supplied by Mr. Hanrahan, it is submitted that the trial judge was perfectly entitled to treat it with a great deal of reserve and to conclude that the material before him was insufficient to discharge the obligation of establishing financial disability, such as to make compliance with the order impossible. Moreover, any financial burden resulting from the levy (paras. 38 to 41 infra) was a matter of legal obligation in respect of which the Council had no control or responsibility.
29. Finally, the suggestion that the appellant was somehow subject to some form of double jeopardy is to entirely misunderstand what that rule of law is. The Council was not obliged to and did not embark upon criminal proceedings. Even however if it had, it would nonetheless also have been entitled to pursue a civil remedy. In either situation however, the principle of double jeopardy is simply not relevant to this case.
Discussion and Conclusions:
30. I believe that the trial judge had before him compelling evidence with none to the contrary, which established a most serious case of illegal dumping on the subject lands, with significant environmental consequences, particularly if left unresolved. On being so notified, the Council promptly investigated the complaint which it had received from a member of the public, and with due dispatch interviewed the Hanrahan family on whose lands this activity had taken place. With the aid of outside consultants, an impressive dossier of information was quickly compiled: plainly on such evidence the Council was entitled, and indeed even duty bound to act. Correctly in my view it did so.
31. Despite however the thoroughness of its work and the obviousness of its commitment, it has been unable to date to confirm the identity of the actual perpetrators of the dumping or those on whose behalf such was carried out. It is to be greatly regretted that those who are serious transgressors of environmental norms and acceptable conduct are not presently before the Court and are not the subject of an order to make good on the pollution which they knowingly and consciously engineered. The Council’s continuing effort to track down and subject all those responsible to the rigours of the law should not only be encouraged, but must also be steadfastly supported.
32. Given these circumstances the proceedings taken under s. 58 of the 1996 Act were confined to the respondents. The application so made was fully contested by Mr. and Mrs. Hanrahan, with apparently no appearance by the appellant - though having been duly served, such was entirely a matter for him. After considering all of the evidence, the High Court was satisfied that each respondent, both collectively and individually, was legally liable for what had occurred, and to reflect such findings, made the s. 58 order as above outlined.
33. Having reviewed carefully the affidavits and the attached exhibits, I feel compelled to state that the manner in which the respondents have engaged with these proceedings has been wholly unsatisfactory, entirely self-serving and scarcely credible. This family, as in Mr. and Mrs. Hanrahan were the registered owners of the subject lands and their son, Colm Hanrahan, by virtue of the lease, was undoubtedly entitled to the occupation of such lands. Accordingly between them they had at all times immediate and unrestricted access to and control over the lands; yet in the only affidavit which he filed, the first named respondent attempted to shift full responsibility onto his son for the activities which took place, disavowing any knowledge whatsoever of what had occurred. After the death of this respondent, the appellant asserted for the first time that because of his father’s disapproval of his marriage breakdown, he was in effect debarred from entry for several years. Moreso, he in turn tries to off-load any culpability onto his father, whom he said permitted a Mr. O’Connor to excavate sand from the quarry; even if this was so, which incidentally sits quite uneasily with other evidence (para. 27 supra), it is striking that despite being leasee, he claims to have known nothing of this. He likewise denied any knowledge of the dumping.
34. At a very late stage, indeed after the date had expired for the completion of the remedial works, as set out in the s. 58 order, the applicant altered his position and, again for the first time, alleged in a fax dated four weeks prior to its actual receipt (para. 25 supra), that an entity which he named as the Greyhound Group - specifically Greyhound Waste and Recycling Ltd. - was the company ultimately responsible for the dumping. Apparently there are now proceedings in being against that company, but their substance is unknown: all in all the story is a most curious one.
35. What is clear however is that it is stretching naivety to a new level to say that, in circumstances where it is claimed that not one of the Hanrahans was aware of either the lorries transporting the waste or of the large-scale dumping, all of which continued for at least six weeks according to the evidence which the Council received. And there is more. However in light of the conclusion which I have reached on this appeal, which involves referring the matter back to the High Court, I will refrain from expressing any further views, which if the circumstances were different I would be very much minded to so do.
36. Accordingly I will now turn to the main legal issues, but before dealing with the central point involved in this appeal, I propose to consider a number of subsidiary issues which conveniently can be dealt with at this juncture.
37. Under the 1996 Act, a local authority, in implementing its provisions, has a number of courses open to it; it can bring a summary prosecution under s. 11, as amended, or request the Director of Public Prosecutions to consider a prosecution on indictment: it can also execute the required works itself, and sue those responsible for the costs incurred, on a simple contract debt basis (s. 58(4) of the 1996 Act). These options are an essential part of the armoury which the legislature has endowed local authorities with, so as to safeguard our environment. Evidently circumstances will vary from one case to another: what may be the optimum course to pursue in one, may be less so, or indeed not appropriate at all, in another. Decisions in this area are matters for the local authority and to choose one option over another or to decide on some combination of all, is its prerogative. It will be far more familiar than anyone else with the considerations which drive such a decision, and accordingly, once permitted by law, I would be most reluctant to even comment thereon.
38. This view also extends to a suggestion, advanced by the appellant as being more than merely hypothetical, that if the local authority adopted a particular course, the regulatory levy on landfill disposal could be circumscribed. That levy and the circumstances in which it applies are set out in the Waste Management (Landfill Levy) Regulations 2011 (S.I. No. 434 of 2011), as amended. Basically, there is a charge of €50 for each tonne of waste which is disposed of, at a landfill facility. Whilst the person who must discharge this sum is the waste facility licence holder, evidently such an operator will pass on the cost thereof to his customer, which in this case, as it stands, would obviously be the appellant.
39. Regulation 6 provides a number of exemptions from the levy. One such is that specified in sub-para. (e), which relates to waste which has been illegally deposited elsewhere; if such waste is subsequently removed “… by or on behalf of a local authority or the Agency … for the purpose of preventing environmental pollution (but not including waste which has been deposited elsewhere without appropriate authorisation and is subsequently required to be removed for disposal by a person at the direction of a local authority or the Agency)”, the levy is not chargeable.
40. Some reference was made as to whether in the instant circumstances the Council could ever avail of this exemption given the terms of the proviso. On that point I venture no concluded view on the interpretation of the provision, other than to suggest that it seems at least arguable that should the local authority ultimately become the disposers of the waste, the exempting provisions may apply.
41. However, the real point which I wish to make about the appellant’s suggestion in this regard is that any decision to that effect is, again entirely a matter for the local authority, which will be guided at a general level by its overall policy of dealing with, and being seen to deal with those who violate the environment, whilst no doubt giving way in whole or in part to individual circumstances when required. In a case such as the instant one, I can fully understand why the authority, at least as its frontline strategy, instituted the s. 58 application. It was perfectly justified in so doing as distinct from operating the provisions of s. 58(4). Likewise, any decision which it might make at some future time, in different circumstances - even one which impacts on the regulatory levy - is a matter for it.
Contempt; Civil Vs Criminal:
42. Ms. de Búrca’s six days in Mountjoy prison gave rise to the important Supreme Court decision of Keegan & Anor. v. de Búrca [1973] I.R. 223 (“Keegan”) in this area of the law. In that case, which was one dealing with the prosecutrix’s refusal to answer a question put to her by the trial judge on a contempt application, Ó Dálaigh C.J. outlined what in his view was the distinction between civil contempt and criminal contempt. At p. 227 of the report he said:
“The distinction between civil and criminal contempt is not new law. Criminal contempt consists in behaviour calculated to prejudice the due course of justice, such as contempt in facie curiae, words written or spoken or acts calculated to prejudice the due course of justice or disobedience to a writ of habeas corpus by the person to whom it is directed — to give but some examples of this class of contempt. Civil contempt usually arises where there is a disobedience to an order of the court by a party to the proceedings and in which the court has generally no interest to interfere unless moved by the party for whose benefit the order was made. Criminal contempt is a common-law misdemeanour and, as such, is punishable by both imprisonment and fine at discretion, that is to say, without statutory limit, its object is punitive: see the judgment of this Court in In Re Haughey. Civil contempt, on the other hand, is not punitive in its object but coercive in its purpose of compelling the party committed to comply with the order of the court, and the period of committal would be until such time as the order is complied with or until it is waived by the party for whose benefit the order was made. In the case of civil contempt only the court can order release but the period of committal cannot be commuted or remitted as a sentence for a term definite in a criminal matter can be commuted or remitted pursuant to Article 13, s. 6, of the Constitution” (emphasis added).
43. What is said about how criminal contempt might be committed is not in controversy: I would add only, purely for the sake of clarity, that a breach of the sub judice rule, involving either civil or criminal proceedings, falls within this class. Likewise, with what is said about how civil contempt might be committed. What has however become the subject of some comment, and even debate, is whether the quoted passage should be understood as excluding from the ambit of civil contempt any power on the punitive side. As an obvious adjunct to this question one can also logically ask whether the Court, of itself, as distinct from the parties, has any inherent interest in dealing with civil contempt, because if it has, it surely must also have the capacity to move in its own right without being requested by any party or other affected person to do so.
44. The phrase which I have highlighted from the judgment of Ó Dálaigh C.J., where he says that in a civil contempt situation the court “has generally no interest to interefere”, may be viewed in either one of two ways, or perhaps both: it may be intended to mean that whilst in almost all cases of this type, some aggrieved person will apply to have the order enforced, nonetheless on rare occasions the court might move of its own volition, or the Chief Justice may have had in mind the possibility that when the offending conduct is so offensive, some response involving a punitive element may be appropriate. In any event, whichever may be correct, if either, it seems that some uncertainty of position has resulted on this point.
45. This issue in a broad sense was indirectly touched upon in The State (Commins) v. McRann [1977] I.R. 78 (“Commins”). In that case two matters arose for consideration. The first was a suggestion that if, as seemed likely, a defendant could be imprisoned for an indefinite period if found to have breached the terms of an injunctive order granted in private litigation, he was thereby and as a result facing a criminal charge such as entitled him to a trial by jury under Article 38.5 of the Constitution. That issue does not arise in this case and in any event that submission was rejected. The second point raised was whether, if Mr. Commins was found in breach, as he was, and if incarceration was to be ordered, the same should be for a specific term, and not that imposed - a term of indefinite duration.
46. That submission, which was also rejected, gave rise to a consideration of what constituted both civil contempt and criminal contempt and what distinguished one from the other. Finlay P., at pp. 89 and 90 of the report made a number of general observations on this matter, reflecting his agreement with what the majority had said in Keegan, which he felt he was clearly bound by. Whilst nothing now turns on the point, it is unlikely that this was so, given that Keegan involved a criminal contempt whereas Commins was unquestionably a civil one. In any event in the course of these remarks the learned President said at p. 89, in the context of criminal contempt, that:
“… where a court imposes sentences of imprisonment its intention is primarily punitive. …”,
and when referring to civil contempt added that:
“… in such cases the purpose of imposition of imprisonment is primarily coercive, …” and accordingly must take “… the form of an indefinite imprisonment” (emphasis added).
47. On at least on one reading it seems reasonably clear that by the use of the phrases “… primarily punitive …” and “… primarily coercive …” the learned President was intending to convey, certainly in the latter context, that there may also possibly be a punitive element in such cases. However it is difficult to see precisely what he meant by using the same adverb on the criminal side, as the object of the courts intervention in all such cases must surely be punitive only.
48. The matter was again considered in Flood v. Lawlor [2002] 3 IR 67 (“Flood”), where Keane C.J., having quoted the above cited passage from Keegan, and also from the dissenting judgment of McLoughlin J. in that case, who incidentally felt that indefinite incarceration was more appropriate, went on to say at pp. 79 to 80:
“Accordingly, while the decision suggests that there may be some room for a difference of view as to whether a sentence imposed in respect of civil contempt is exclusively - as distinct from primarily - coercive in its nature in civil proceedings generally, I am satisfied that where, as here, the proceedings are inquisitorial in their nature and the legislature has expressly empowered the High Court to secure compliance with the orders of the tribunal, it cannot be said that a sentence imposed in respect of a contumelious disregard of the orders of the tribunal and the High Court is coercive only in its nature. The machinery available for with dealing contempt of this nature exists not simply to advance the private, although legitimate, interests of a litigant: it is there to advance the public interest in the proper and expeditious investigation of the matters within the remit of the tribunal and so to ensure that, not merely the defendant in this case, but all persons who are required by law to give evidence, whether by way of oral testimony or in documentary form, to the tribunal comply with their obligations fully and without qualification.”
49. It should also be noted that the Chief Justice adopted, as a correct the statement of law, that given by the English Court of Appeal in the case of In re W. (B.) (An Infant) [1969] 2 Ch. 50, which decided that a court has jurisdiction to suspend in whole or in part a sentence of imprisonment imposed in respect of civil contempt, and thereafter in the event of a further contempt may at its discretion require the party in default to serve some or all of the balance of the sentence as suspended.
50. In Shell E. & P. Ireland Ltd. v. McGrath & Ors. [2007] 1 IR 671 (“Shell”), the issue of exactly what was decided in Keegan agitated the attention of the Court, and in a thorough and comprehensive judgment, Finnegan P. was of the opinion that if Ó Dálaigh C.J. intended to convey that civil contempt was exclusively coercive, such view should be regarded as being obiter. Having cited Flood the learned President concluded at pp. 687 to 688 of the report that where serious misconduct had occurred, or where for example there was a “gross affront” to the court, or where the public interest in general was engaged, the court itself had the power in the vindication of its own authority, to penalise a contemnor as part of exercising its civil jurisdiction.
51. I cannot find anywhere in this judgment a statement or suggestion that when invoking this power, the court is in any way stepping outside its civil jurisdiction, although of course for reasons later explained the objective of its involvement is to punish and not to coerce, which inevitably has consequences for the type of order which can be made.
52. The Court also stated in Shell (p. 387) that if some means existed, alternative to imprisonment, by which compliance with the order of the Court could be achieved, that should normally be adopted as in effect committal was a remedy of last resort: the decision of O’Hanlon J. in Ross Co. Ltd. (in receivership) & Anor. v. Swan & Ors. [1981] I.L.R.M. 416 (“Ross Co. Ltd.”) was cited in this regard.
53. The final authority which should be referred to is Quinn. That case involved an appeal from a decision of the High Court which in effect had exercised both its criminal and civil jurisdiction. Nothing turns on the former but what is of interest is what Fennelly J. said about civil contempt. At para. 90 he described the relevant passage from Keegan (para. 42 supra) as being an “over-simplification” of the true situation and that on occasion “… there may be a punitive element in cases of civil contempt”. In that context he cited at para. 91 a passage from Shell which has already been reproduced at para. 14 above. Fennelly J. quoted further from that judgment:
“More accurate is the proposition in Flood … which left open the question as to whether civil contempt is exclusively, as distinct from primarily, coercive in nature. In Ross Co. Ltd. … O’Hanlon J. was of the view that in an appropriate case the court must exercise its jurisdiction to commit for contempt not merely for the primary coercive purpose but in order to vindicate the authority of the court and in which case the court has jurisdiction to make a punitive order. His approach is supported by the cases which he mentions …” (p. 687 of Shell).
At paras. 89 to 91 inclusive of his decision, Fennelly J. was satisfied to endorse these passages, and thus to support, at the level of principle the possibility that in certain circumstances civil contempt may also include “a punitive element”.
54. From these and other cases the following broad principles are deducible. Criminal contempt may be occasioned in many ways and may take many forms. It can occur inside a court or outside a court. When it occurs in facie curiae it will be regarded as posing a direct and immediate threat to the very authority of the court itself; one which must be dealt with as a matter of urgency. Assaults, rarely seen nowadays thankfully, insults and disruptive behaviour as well as what happened in Keegan, are examples found in the case law of this type of contempt.
55. When externally committed, the offending conduct may again take many forms, such as by: words, either written or uttered; acts; deeds; or actions. Indeed any form of behaviour which is calculated to obstruct, impede or interfere with the administration of justice or with its due process, as understood in the broadest sense, is capable of constituting this type of contempt. The phrase “Scandalising the Court”, which is used to describe one aspect of this class of contempt, may be old, but it is by no means obsolete. Its vitality remains very much alive and informing. It captures allegations such as those of corruption, malpractice, bias or impropriety. One may add to these, conduct which tends to prejudice a fair trial, though the existence of court proceedings is not an essential prerequisite in this regard. In fact it is safe to say that the type or nature of conduct which could give rise to a finding within this heading, remains open. Those who may be the target of such conduct include judges, those who perform judicial functions, or who are involved in administration of justice, officers of the court, juries, parties, witnesses, legal representatives and prosecuting gardaí, to name but some in this regard.
56. Irrespective of the type of conduct involved, or where such has taken place, this class of contempt has always been regarded as criminal in nature and by the courts has been treated as such. Maintenance of the order, decency and character of the administration of justice is vital: an attack on this institution is so serious that it must be regarded as an affront to the authority of the State itself. That being so, the public as a body, has a significant interest in upholding the propriety of the constitutionally based system of justice and law, which we have in this country. Given that the victims of any such conduct is the court itself, its administration and/or those subject to its jurisdiction, and noting the damage which, if left unchecked might be caused as a result, it is entirely unsurprising to find that the court has assiduously maintained the right to move of its own motion when faced with such challenge. In some cases this may not be required as others may feel obliged to act. However, when necessary, the court may do so.
57. Regardless of who might move the process, the court when acting in this way will, as I have said, be motivated not simply by a desire to maintain its own authority but also by an obligation to vindicate the interests of the public. This will always be a material factor in its consideration. When thus engaged it is exercising a criminal jurisdiction. It must therefore act as it does in all criminal cases: facts which have been established or admitted will be evidentially appraised and if a finding of contempt is made, an appropriate penalty will follow.
58. What must be emphasised however is that firstly, this type of inquiry relates to past events, and secondly that if incarceration is intended, its object is to punish the offender for what he has done. Accordingly any term imposed must be for a period certain. As with all sentencing the court has the power to suspend the same in whole or in part, subject to or without conditions. However, when the sentence is served and/or any imposed conditions are satisfied or become redundant, the contemnor is a free person.
59. Civil contempt on the other hand essentially arises where a person is in breach of a court order, whether its terms be mandatory or prohibitory. Such an order may be enforced by attachment or committal (O. 42, r. 7 of the Rules of the Superior Court). Judgments for the payment of money are separately dealt with by r. 4 of O. 42. No distinction exists between interim, interlocutory and final orders of which injunctions are the most obvious examples.
60. In the vast majority of such cases the court will be engaged by the recipient of the order, whose only real focus and interest however is likely to be in having its terms enforced. This will be particularly so where the litigation is between private parties. Unlike criminal contempt, what the court seeks to do in such circumstances is to bring about compliance on the part of the defaulter by invoking its persuasive powers: if such should involve a prison sentence, the term thereof will be indefinite which is entirely consistent with and designed to further this coercive objective. Once the default has been remedied or is no longer in issue, which may result from due compliance or by a withdrawal of the application, the committal order ceases to have effect. That situation may also come about in other circumstances, such as a person’s death, or permanent incapacity, or where for example the subject matter of an unlawful picket no longer exists, or in the case of a ship, which has departed from this jurisdiction.
61. It is sometimes said that the court does not have a personal or an individual interest in enforcing this type of order, or at least not to the same extent as it has in the case of criminal contempt.
62. For entirely understandable reasons - mostly at a functional level - there may be some truth in this. However at the level of principle it must be noted that every judicial order which issues, has been made with the authority of the court behind it: as such it seems to me that the court will always have an intrinsic interest in securing due compliance with its orders. Lord Woolf M.R., in Nicholls v. Nicholls [1997] 1 WLR 314 at p. 326, described such interest as being “very substantial”. Although spoken in a more specific context, this is very much within the justification offered by Keane C.J. for his conclusion in Flood that when called upon to enforce orders of the Tribunal, the High Court’s power is more than merely coercive. The judgments of Finnegan P. in Shell and Fennelly J. in Quinn entirely support this proposition. Accordingly, whilst the court may not always display of its own motion an overt interest in having each of its orders secured, nonetheless such an interest is there and will be acted upon where necessary.
63. In practice the court will generally leave to the parties the enforcement of its orders, particularly if the rights in issue are of an exclusively private nature. However, there may also exist circumstances, where the nature, effect or consequences of a breach is such, that the court feels compelled to intervene or further intervene so as to mark its disapproval of conduct, which it views as being quite offensive. This will occur more readily where there are significant public interest matters at issue, where the behaviour in question, is threatening to the court itself or otherwise constitutes a serious or significant challenge to it. Where such occurs I have no doubt but that the court has jurisdiction to act and its powers in this regard may be both coercive and punitive.
64. When intervention in this way becomes necessary as part of civil contempt, the court must be conscious that its jurisdiction has these two elements to it. Both may arise out of the same set of circumstances but when that occurs, it is of vital importance for the court, to distinguish sharply between its coercive intent and its punitive, or as it is sometimes put, its disciplinary intent. The reason is because the punishment is intended to reflect past conduct, i.e. conduct which has taken place up to the hearing date. Once therefore the imposed punishment has been met, the conduct which gave rise to it will have been legally dealt with. If further misbehaviour of a similar nature should reoccur, that likewise can be dealt with in the same way.
65. There is a second reason why the court must deal separately with these matters, which is that as with criminal contempt, any punitive element involving incarceration must be for a term certain. There is no scope for imposing an indefinite sentence in this context.
66. The type and nature of conduct which might give rise to the court’s decision to penalise on a civil contempt motion may take many forms. Generally however only conduct which can properly be termed as “serious” or “outrageous” or “wilful” or “deliberate” or as constituting a “gross affront” to the integrity of the court will justify intervention in this way.
67. Even where such conduct is found to exist and is punished accordingly, that nevertheless may not be an end to the matter: the coercive power may still be required to be exercised if the anterior order should remain uncomplied with.
68. As the case law shows, the court will always be reluctant to attach and commit for breach of its order. Ross Co. Ltd. illustrates that where there is a meaningful alternative available by which compliance can be secured, such will normally be favoured. However, this reluctance must at all times be contextualised. Moreover, the court’s reserve and caution in this regard, should not be viewed as any diminution, let alone an abandonment, of its commitment to enforce its own orders. Such remains unwavering, be it at the behest of the parties, of its own volition to guarantee due respect for the administration of justice and the rule of law, or indeed any combination thereof. Therefore any plea which would have the effect of absolving a contemnor from imprisonment, in circumstances where such would otherwise be merited, should be examined closely.
69. For the sake of completeness it should be noted that issues which gave rise to the Supreme Court’s decision in Dublin City Council v. McFeely & Ors. [2013] 1 ILRM 40 (“McFeely”) do not arise in this case.
The Terms of the Committal Order:
70. In para. 16 supra, the main sections from the committal order have been quoted, and for ease of reference have been referred to as the Recital part, the Adjudicative part, and the Warrant part, respectively. As is evident from its terms, the first section appears as a form of recital in that it records the Court’s satisfaction that the appellant is guilty of contempt by disobedience of the s. 58 order: it then goes on, in the Adjudicative part, to say that “The Court doth adjudge” that he is guilty of contempt, and that “… he be committed for such contempt to Mountjoy Prison to be detained therein for a period of six months or such further period as this Court shall direct UNLESS the provisions laid down in the Schedule herein are complied with in full …”, and in accordance with specified time limits.
71. The third and last relevant section, namely the Warrant part, provides that the Council be at liberty to issue an Order of Committal directed to the Commissioner and to the Governor of Mountjoy to arrest Mr. Hanrahan, and thereupon “to lodge him in … Prison … there to be detained for a period of six months commencing upon …” his arrest, “… unless he shall have complied with the provisions laid down in the Schedule …”.
72. Disregarding what I have termed the Recital part, there is a significant difference between that section which adjudged Mr. Hanrahan guilty of contempt, and that part which gave liberty to issue a committal order. The former specifies the detention period as being for six months, or “such further period as this Court shall direct”; whereas the Warrant part refers to “a period of six months”. Whilst no order for committal actually issued in the circumstances, I have no doubt but that if it had and if it contained the terms of the Adjudicative part, the same would have been bad on its face and would not have survived an application under Article 40.4.2 of the Constitution.
73. Even if the warrant recorded what is in the third section, there would still be serious difficulties, as evidently, that would then be in conflict with the Adjudicative part. As this Court said in McFeely, committal involves a deprivation of liberty, and the process by which it can be implemented must be strictly applied. It is therefore of the first importance that in an application such as this, the underlying order of the court must be specific as to detail and accurate as to legality.
74. What in fact the Adjudicative part was meant to convey remains unclear. It was never the judge’s intention to extend the incarceration of Mr. Hanrahan beyond the six month term. In fairness to the Registrar who drafted the order, it may well be that he or she did not have sight of the note of the judgment, as subsequently approved by the learned trial judge. In para. 8 thereof, the judge, having found the appellant guilty of contempt, directed that he be detained “for the term of six months or such further order as this [C]ourt shall direct” (emphasis added); whereas in contrast the words “further period”, appear in the order. Nothing quite turns on this in the events which have occurred, but in other circumstances, a deficit in accuracy and a failure in legal certainty could well be fatal to the valid enforcement of such an order.
75. The more substantive matter however stems from the way in which the learned trial judge structured his conclusion on the application and thereafter went about its implementation. Reference in this regard should be made to paras. 5, 7 and 8 of the judgment. In para. 5, having stated that a sentence of imprisonment is likely to have both a coercive and punitive effect, he then goes on to say that the reality of an “unless order” is such, that “the key to the gaol is in the hands of the third named respondent himself. It is up to him to take such action as may be required to ensure that this does not occur”. In para. 7 reference is made to the appropriateness of the intended order, and in para. 8 the judge specifies the terms thereof. In conclusion he expressed hope “that it will not be necessary to invoke this order”, “but” he went on, “if this must come to pass, then so be it.”
76. It seems clear, at least in some respects, what the judge had in mind: he wanted the works done within a timeframe; if that was accomplished the order would have no effect; if default was made however, imprisonment would follow. What is unclear is whether the appellant was to serve six months only, or a longer period if subsequently directed. The perfected order certainly gives that impression, whereas, the note of the judgment, at least by inference, seems intended to have the six months as the outer limit, but with release possible before then if the work plan is implemented.
77. Whichever of these interpretations is to be regarded as accurate, neither in my view can be sustained as a matter of law. If the intention of the High Court was purely coercive, which is likely, the detention should have been indefinite in duration, subject only to the judge’s power of suspension, to be exercised at sentencing, which in any event does not appear ever to have been contemplated. If on the other hand the intention was punitive, that is, with the object of punishing Mr. Hanrahan for disobeying the s. 58 order, the sentence had to be one for a term certain and could only be in respect of past events. Further, the serving of such term could not be influenced by the appellant’s future conduct.
78. It seems to me that the trial judge inadvertently conflated his coercive and punitive powers and in effect merged or rolled both into one. This, the law does not permit: accordingly, I am therefore satisfied that the appeal must be allowed on that basis.
79. This conclusion does not however dispose of the committal application. My view on the validity of the order does not disturb the underlying finding that the third named respondent was guilty of contempt. In fact, by open admission he pleads to it. Equally so it does not disturb the view of the trial judge, one with which I respectfully agree, that the contempt in question is serious in nature and must be regarded as such. That being the situation, I propose to remit the matter back to the High Court to further consider what the appropriate order should be. To that end, there are a number of further matters which should be referred to.
80. As part of the High Court hearing some evidence was placed before the Court as to Mr. Hanrahan’s financial position. Given the sparseness of such information and a virtual complete absence of supporting documents, the trial judge expressed strong scepticism as to what the true position might be. However, and despite how limited it might have been, Mr. Hanrahan was not cross-examined on what he said, nor was there any evidence to the contrary. Consequently it is difficult to see how it could have been entirely disregarded. In addition, circumstances have now changed in that this Court in the exercise of its discretion, which on rare occasions it does, admitted a further affidavit from Mr. Hanrahan which he terms, in effect, an affidavit of means. Whilst considered on a de bene esse basis by this Court, it is now part of the evidence and must be viewed as such.
81. In fact since the application is being remitted I could see nothing in principle preventing either party from adducing such further evidence as they think fit - provided of course that such is relevant to a material issue, and is credible. It may be that notices to cross-examine will be served. Ultimately however the trial judge will be required to further explore the underlying facts and make such findings thereon as may reasonably be open to him; having heard any additional submissions which might be made it will then be necessary to consider afresh what at that stage is the appropriate order to make.
82. In the context of this exercise the learned judge, in my view, will be perfectly entitled to have regard to the seriousness of the underlying breach, as it is evidently unreal to suggest that such can be entirely divorced from subsequent events.
83. It is most likely that as part of this process a submission will be made to the effect that because of impecuniosity Mr. Hanrahan is incapable of complying with the s. 58 order. That submission if so advanced will have to be considered by the trial judge in the context of the facts and circumstances as then found to exist. The situation in McFeely, as to impossibility of compliance, is quite different in that by court order the applicant was prevented from being on the subject lands and evidently, as a result, could not carry out any works thereon. The circumstances in this case would appear to be different. That said however, if compliance is truly beyond the reach of one’s capacity, imprisonment as a coercive means should not be resorted to. That is not to say that other measures may not be considered. Ultimately this becomes a matter for the trial judge.
84. Finally, there is one other, rather unrelated issue which I should refer to, which is the suggestion that if there was to be any punitive element on the contempt application, the same would amount to double jeopardy. This in my view could not be the case. Double jeopardy as loosely understood at common law, as distinct from statute law (see s. 14 of the Interpretation Act 1937, as repealed with savings by s. 3 of the Interpretation Act 2005) is based on the principle that an accused person should not be put in peril twice for the same offence. McDermott, Res Judicata and Double Jeopardy, (Dublin, 1999) explains its rationale on a contempt motion such as the instant one. It clearly has no application.
85. In conclusion therefore, I would remit the contempt application to the High Court for its further consideration in accordance with the terms of this judgment.
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