THE SUPREME COURT
Record No. 2017/68
Clarke C.J. O'Donnell J. McKechnie J. MacMenamin J. Finlay Geoghegan J. DAVID WALSH
Appellant
-and-
THE MINISTER FOR JUSTICE AND EQUALITY, THE DIRECTOR
OF PUBLIC PROSECUTIONS, THE COURTS SERVICE, JUDGE ALICE DOYLE, AND THE GOVERNOR OF CORK PRISON
Respondents
Judgment of the Court delivered on the 31st May, 2019.
1. Introduction
1.1 On 31 May 2016, the applicant/appellant, Mr. Walsh, was found to be in contempt of the Circuit Court and sentenced to two weeks' imprisonment. Three days later, on 2 June 2016, an inquiry was commenced under Article 40.4 of the Constitution and, on 3 June 2016, the High Court made an order for the release of Mr. Walsh on the grounds that, while he was in contempt, the sentence was disproportionate. The fifth named respondent to the proceedings, the Governor of Cork Prison ("the Governor"), the only active respondent to this appeal, appealed to the Court of Appeal, which gave judgment on 25 March 2017 and reversed the decision of the High Court. The Court also directed that Mr. Walsh be taken into custody to serve the balance of the 14 day sentence imposed, with credit being given for the period already served in prison. The Court also placed a stay on that order for seven days to permit Mr. Walsh to purge his contempt.
1.2 Mr. Walsh did not do so and sought leave to appeal to this Court on a number of grounds. A panel of this Court did not grant leave to appeal on the grounds advanced by Mr. Walsh, but did grant leave on one question, namely the procedures adopted before the order of committal for contempt was made. The appeal was heard at the same time as the appeal in Tracey v. McCarthy [2019] IESC 14, (Unreported, Supreme Court, 25 February 2019) (" Tracey "). The Irish Human Rights and Equality Commission ("IHREC") appeared as an amicus curiae in Tracey . The submissions of all parties were exchanged between the parties in both sets of proceedings and judgment was delivered in both matters on the same day, 25 February 2019.
1.3 This court unanimously dismissed Mr. Walsh's appeal. Two judgments were delivered: one by O'Donnell J., with whom Clarke C.J., MacMenamin and Finlay Geoghegan JJ. agreed and a concurring judgment by McKechnie J. (see, Walsh v. Minister for Justice and Equality & Anor [2019] IESC 15). In Tracey , the Court also unanimously allowed Mr. Tracey's appeal. Again, two judgments were delivered: one by O'Donnell J., with whom Clarke C.J. and MacMenamin and Finlay Geoghegan JJ. agreed and a concurring judgment by McKechnie J.
1.4 The concluding portion of the last paragraph (para. 42) of the judgment of O'Donnell J. in Walsh was in the following terms:-
"...It is quite clear, in my view, that the matter would never have reached the point of a committal to prison if Mr. Walsh had been willing to accept, even at a late stage, that he was wrong, and was in any event obliged to accept the ruling of the judge. It would be desirable, nevertheless, if this matter could now be resolved without the necessity that he should at this stage serve any further time in prison. The order of the Court of Appeal provides a mechanism whereby that might be achieved, depending on the attitude taken by Mr. Walsh at this stage. In any event, there are issues of law which arise, since an order for release was made by the High Court, which was then the subject of appeal to the Court of Appeal and to this court. Furthermore, I would wish to have submissions as to the extent of the powers of an appellate court in these proceedings. I would accordingly dismiss the appeal, but would require further submissions as to the form of the order which may be made at this juncture."
1.5 By letter of 28 March 2019, solicitors on behalf of Mr. Walsh sought directions in relation to certain matters which had been referred to at para. 42, which was, it appears, a reference to the fact that the Court had invited submissions on the matters set out above. However, the letter also queried "whether the Court would be disposed to hear a motion to set aside the judgment and order of the Court on the grounds that the matters set out at Part B below on foot of a draft notice of motion attached, the affidavit, enclosed herewith, and written submissions unless directed otherwise". The matters set out at Part B of the letter were described as "[f]actual errors in the judgment and an application to set aside the judgment and reverse the decision on the appeal". The draft notice of motion contained the relief sought, which, at para. 1 included an order "that the judgment of Mr. Justice O'Donnell given by this Honourable Court on the 25th of February 2019 herein, dismissing the Appellant's appeal be varied and the decision of this Honourable Court made on foot of that judgment to dismiss the appeal be rescinded". Paragraph 2 sought an order that the appellant's appeal be upheld and that the order of the Court of Appeal be set aside. In essence, therefore, the mooted application would seek not just the setting aside or altering of the judgment of O'Donnell J., but the reversal of the decision of the Court.
1.6 As there was to be a hearing in respect of the matters raised in para. 42 of the judgment in any event, the Court directed that both matters be dealt with together. Since the question of an appropriate order to be made pursuant to the original judgment of the Court would not arise if the reliefs sought at paras. 1 and 2 were granted, and the judgment varied, the order set aside, and the appeal allowed, it is appropriate to consider that issue first.
2. Setting aside a judgment of the Supreme Court
2.1 Mr. Walsh does not, on this application, seek to raise any issue relying on a suggestion that the order of the Court was not finalised or the judgment unapproved. The relief sought is plainly stated to be to set aside the judgment of this Court and, as observed, to reverse the decision. An application to set aside a final judgment of this Court must confront the terms of what is now Article 34.5.6° of the Constitution to the effect that "[t]he decision of the Supreme Court shall in all cases be final and conclusive". This Article is a constitutional obligation binding on this Court, which is obliged to uphold it, but is also binding on all citizens. It is in general and unqualified terms and applies explicitly to "all cases". It also expresses a public policy, long recognised in legal systems, that it is in the public interest that there be finality to litigation. As it was put by Lord Simon of Glaisdale in The Ampthill Peerage [1977] A.C. 547, at p. 576:-
"...[A]nd once the final appellate court has pronounced its judgment the parties and those who claim through them are concluded… A line can thus be drawn closing the account between the contestants. Important though the issues may be, how extensive so ever the evidence, whatever the eagerness for further fray, society says, ‘We have provided courts in which your rival contentions have been heard. We have provided a code of law by which they have been adjudged. Since judges and juries are fallible human beings, we have provided appellate courts which do their own fallible best to correct error. But in the end you must accept what has been decided. Enough is enough.'"
2.2 The reference in the passage just quoted to fallibility is instructive. All decisions are final, whether good or bad, whether widely noticed or quietly ignored, whether criticised or praised. A party may well reasonably believe that, if new arguments are made, or old arguments advanced more persuasively by new advocates, or if defects or weaknesses in reasoning or in the understanding of the factual position could be pointed out, the judges concerned might change their minds. However, Article 34.5.6° is clear. Each litigant must know that the decision of the final court of appeal, in this jurisdiction being this Court, is final and conclusive. Indeed, even if, in subsequent proceedings, the reasoning of the original decision is overturned as incorrect in law, this will have no effect on the decision between the parties. The decision of this Court is, as Article 34.5.6° of the Constitution states, even in such circumstances, final and conclusive. That is the starting point, and in nearly all cases will be the end point, for any contention that a decision of this Court should be set aside.
2.3 However, this Court has exceptionally recognised a jurisdiction to set aside judgments. It has always been recognised that a judgment obtained by fraud may be set aside, see Tassan Din v. Banco Ambrosiano S.P.A. [1991] 1 I.R. 569. As was observed by Murphy J. in the course of his judgment in that case, in relation to what is now Article 34.5.6°, the acceptance that a decision of this Court can be set aside for fraud "does not truly represent an exception to this constitutional provision. An order obtained by fraud is a mere nullity" - or, as it was colourfully described in an earlier case, fabula non judicium . In In re Greendale Developments Ltd. (No. 3) [2000] 2 I.R. 514 (" Greendale "), this Court accepted that it had jurisdiction to set aside even a final decision of the Court. It was explained by Denham J. (as she then was) that this jurisdiction was justified only by the obligation to administer justice. At pp. 544 to 545 of her judgment, she said:-
"The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such jurisdiction exercised. It would only be in most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights."
2.4 Further important guidance can be found in a ruling delivered by this Court in Director of Public Prosecutions v. McKevitt [2009] IESC 29, (Unreported, Supreme Court, 26 March 2009) (" McKevitt "). There, Murray C.J. delivered a ruling of the Court, which held:- "...Firstly, the application must patently and substantively concern an issue of constitutional justice other than the merits of the decision as such. Secondly, the grounds of the application must objectively demonstrate that there is a substantive issue concerning denial of justice in the proceedings in question consistent with the onus of proof on an applicant."
2.5 It is apparent from these observations that the contention that a judgment is wrong, even plainly wrong, whether by reference to law or fact, will not suffice. This, too, is consistent with the jurisprudence of other legal systems. In the United Kingdom in R. v. Bow Street Magistrate, ex p. Pinochet (No. 2) [2000] 1 AC 119 (" Pinochet "), at p. 132, it was stated that, "it should be made clear that the House will not reopen an appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case, there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong". In the United States in Autodesk Inc. v. Dyason (No. 2) [1993] HCA 6, (1993) 176 C.L.R. 300, Brennan J. stated at para. 4 of his opinion, "…I find no jurisdiction to set aside the judgment already pronounced merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law".
2.6 It is apparent from the decision in Greendale that the jurisdiction will only arise in very exceptional circumstances and the burden on the applicants to establish that such circumstances exist is heavy. It must be demonstrated that what has occurred means that, in substance, the decision lacks one of the essential qualities of the administration of justice in the manner in which it was decided, so that it cannot be said to be captured by the express words of Article 34.5.6°. It bears re-emphasis that this is an exceptional jurisdiction where the test is, of necessity, difficult to satisfy. That standard is required by the Constitution and should not be diluted.
2.7 Consideration of the decided cases illustrates the type of exceptional circumstances which might give rise to such an application. In Greendale , the contention was that this Court had stated that it would deal only with a preliminary issue on the admission of fresh evidence but then proceeded to determine the substance of the appeal. The application to set aside the judgment failed. In the neighbouring jurisdiction, the House of Lords did set aside a decision in an extradition matter on grounds of objective bias which had been raised by virtue of the association between the wife of a member of that Court and an intervening party, see Pinochet , as referenced above. In this jurisdiction, a similar claim was made and considered, but rejected on its facts, in Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412. These were claims about matters extraneous to the decision itself but said to be so fundamental as to undermine the validity of the decision. It will be particularly difficult to meet the test when what is relied on is not something extraneous to the decision, such as the composition of the Court, but an alleged error of fact.
2.8 It is rare that this Court makes a finding of fact. It may review findings of fact made by trial courts and consider issues of law arising on facts found. It would be surprising and unusual, therefore, that decisions of this Court could be said to be dependent on contested facts and even more unusual that there would remain doubt about facts which are sufficiently fundamental to the issue to be decided that an error undermining the entire validity of the decision in the case could be made. In McKevitt , by contrast, the Court received an application to set aside a judgment on grounds that the judgment contained errors of fact traceable in the particular case to submissions made by the D.P.P. The Court acknowledged that there was an error but considered that the claim was not something capable of amounting to a basis for setting aside the judgment on Greendale grounds. Accordingly, the Court refused to entertain the application and instead delivered a ruling identifying the error and explaining the Court's reasons for refusing to entertain the application to set aside the judgment. This case illustrates the important fact that Article 34.5.6° remains relevant at all stages of the proceedings. If it is apparent that an application does not disclose grounds capable of being argued as justifying the exercise of the Greendale jurisdiction, then it would be a breach of the terms of Article 34.5.6°, and the object of that provision would be defeated if the Court were to entertain such a claim.
2.9 It should be said that a practice direction issued by the Chief Justice under s. 7(7) of the Courts (Supplemental Provisions) Act 1961, inserted by s. 44(a)(iv) of the Court of Appeal Act 2014, now sets out the practice to be adopted in this regard. Practice Direction SC17 provides that papers will be considered by a judge, or a panel of judges, who will consider if a hearing is justified. In the present case, the Court decided that, since the matter was to return to court for further submissions in respect of the matters set out at para. 42 of the judgment of 25 February 2019, it was appropriate to hear argument on the matter.
3. Errors of fact in a judgment
3.1 This court has also addressed the question which sometimes arises when a party contends that there are errors of fact in a judgment. In Nash v. Director of Public Prosecutions [2017] IESC 51, (Unreported, Supreme Court, 13 July 2017) (" Nash "), two distinct examples arose in respect of different judgments which were delivered at different stages of the case. In one instance, a garda officer raised what appeared to have been a misattribution to him, in one of the judgments which had been delivered, of certain steps taken. Plainly, the officer concerned had no interest in the outcome of the case. However, he had a concern that a record existed which, if not corrected, might be damaging to his reputation. Subsequently, and quite separately, the applicant himself raised what he contended to be factual errors in the accounts given in the judgment in respect of his claim for damages and sought to revisit the judgment on that basis.
3.2 In the judgments delivered in respect of the earlier application by O'Donnell, Clarke and Charleton JJ., it was explained that, for perhaps obvious practical reasons, it had never been suggested that judgments in the Irish courts should be circulated in draft for comment on factual or other matters in advance of their delivery. It was, therefore, possible that there might in some cases be errors of fact in the matters recounted in any judgment. While this is by no means common, in any fallible system it is possible. The Court distinguished between two types of errors. In considering them, it is critical to understand the reasoning of the Court leading to the decision delivered. In some cases, the alleged error would be both trivial and irrelevant. In such circumstances, the parties, it was stated, ought to recognise that fact and accept the outcome of the case. The parties, and, in particular, their legal advisors, had important responsibilities in that regard. Where, however, an error was capable of being material either to an individual and his or her reputation or to a party in such a case, then, if an error was established, it could be corrected. It was suggested at para. 14 of the judgment of O'Donnell J. that, in this latter case, such matters could be raised on notice to the other party or parties to the proceedings within a reasonable time after the delivered of the judgment, perhaps 14 days, and if the error was agreed or accepted by the Court, the judgment could be corrected. Correction in this fashion would have no impact on the decision of the Court, which would remain final and binding.
3.3 It is apparent that Mr. Walsh does not adopt this course. Instead, he seeks, as indeed did the unsuccessful applicants in the Nash and McKevitt cases, to have the decision itself set aside, and furthermore urges this Court to go so far as to reverse the decision of the Court of Appeal. In doing so, he does not rely on any ground relating to constitutional justice such as the perceived impartiality of the tribunal or its members, as arose in Bula Ltd. v. Tara Mines and Pinochet , or as to the procedure adopted, which was relied on in Greendale, or on grounds that a necessary party was deprived of an opportunity to participate, as arose in Abbeydrive Developments Ltd. v. Kildare County Council [2010] IESC 8, [2010] 2 IR 397.
3.4 Rather, the grounds asserted are explicitly alleged to be errors of fact. However, in this regard, it is important to recall the distinction set out by Murray J. in McKevitt between issues of constitutional justice and issues going to the merits. It is perhaps conceivable, in theory, that a matter of fact so central to the decision was misunderstood, such that it can be said that the entire process has miscarried to the position where there had been a fundamental and patent denial of justice so as, in turn, to bring a matter within the Greendale jurisdiction to set aside a decision which otherwise would be final. It would, however, require something of that fundamental nature such that it could be said that the decision delivered was in truth not just wrong, but should be treated as a nullity. It is important that the line between the Nash jurisdiction to correct facts and the Greendale jurisdiction to set aside a final decision of this Court does not become blurred and the constitutional threshold lowered.
3.5 Against that backdrop, it is necessary to turn to the facts of the case and the matters alleged. It is to be observed at the outset that the decision in this case was unanimous, albeit that separate judgments were delivered. This application only relates to the judgment delivered by O'Donnell J. That judgment sets out, at paras. 8 to 15, under the heading "Facts", the circumstances arising on 31 May 2016 that led to the committal for contempt which is the subject matter of the proceedings. It is important, therefore, to record that no complaint or challenge is made to the facts as set out therein. Mr. Walsh, however, disputes four matters set out in the concluding paragraphs of the judgment, three of which were contained in para. 38, with the fourth alleged error being at para. 42.
3.6 In order to consider these matters, and the possible significance of any error, it is also important to understand the decision of the Court. The judgment in this case, and the companion judgment in Tracey , discussed the general procedural steps which should be taken in cases of disruption of court proceedings which may amount to contempt of court. The judgments set out the steps that should be taken when, in particular, it is considered necessary to invoke the contempt jurisdiction and potentially punish a person for contempt of court. The decisions, taken together, can be said to decide two matters of general importance.
3.7 First, accepting in part the submissions of the IHREC based on the decisions of the European Court of Human Rights, the judgments make it clear that a court has the power to order the removal of a person from court without triggering a contempt jurisdiction or the procedural steps required by the Constitution or the Convention. Second, while the procedures were set out clearly and sequentially, particularly in the Tracey judgment, it was recognised that, given the difficult factual circumstances in which such an issue can arise, the essential lawfulness of any order made was not dependent on what the judgment in the present case described at para. 38 as a "mechanical box-ticking exercise". Rather, adopting the approach of Lord Woolf M.R. in a case in England and Wales, Nicholls v. Nicholls [1997] 1 WLR 314, the Court considered that "a view must be taken of the overall fairness of the proceedings". Taking only one example, it was set out at para. 14(h) of the judgment in Tracey that, where a court considers it necessary to invoke the contempt jurisdiction, the person concerned should be warned, told in simple terms of the conduct considered capable of constituting contempt and given the option of obtaining legal representation (including legal aid, if their means are insufficient). Taking the example of legal aid, it is plain from the facts of this case, and is indeed expressly recorded in the judgment, that the offer of legal aid and assistance made came after the first occasion on which the judge had said that she found Mr. Walsh was in contempt of court. This indeed was forcefully relied on by counsel on behalf of Mr. Walsh at the original hearing of this appeal.
3.8 The Court, in the judgment of O'Donnell J. at para. 38, for reasons set out in some detail, concluded that, taken in the round and having regard to the atmosphere of the hearing, fair procedures had been complied with. These two somewhat interrelated conclusions -that a court has power to order the removal of a disruptive person from court without necessarily invoking the contempt jurisdiction and that the procedures required to be followed and the retrospective assessment of any detention pursuant to a committal for contempt must be made by reference to the overall fairness of the proceedings and not any mechanical box-ticking exercise - form the backdrop against which the allegations of error in this case must now be assessed.
3.9 It is now necessary to consider the four alleged errors asserted in the written and oral submissions on behalf of Mr. Walsh.
4. The first error alleged
4.1 The first of the errors asserted by Mr. Walsh is set out in the following way, in the legal submissions delivered on his behalf:-
"Para. 42, p. 37-38 - ‘The appellant has never, either by himself or through his counsel expressed any recognition that he was in error, and that his approach gave rise to the contempt hearing.'"
4.2 It is submitted by Mr. Walsh that this statement, quoted from the judgment of O'Donnell J. of 25 February 2019, is incorrect, in that Mr. Walsh, through written and oral submissions made in his presence by counsel, accepted in this Court that "he should not have refused to stop speaking in the Circuit Court and the judge was entitled to have him removed from court as a result of his refusal". Reference in particular was made to the following extract from para. 5 of his additional written submissions dated 4 February 2018, where it is said that it was expressly accepted that "...the judge was entitled to take regulatory contempt action against him because he would not stop talking". It was submitted that appreciation of this proposition was essential to the decision in Mr. Walsh's case and that the judgment and order of this Court therefore proceeded on a basis that positively asserts the opposite of the essential proposition relied on by Mr. Walsh. Therefore, it was suggested, the exercise of the Greendale jurisdiction to set aside the judgment and order would be justified.
4.3 What is said at para. 42 of the judgment of O'Donnell J. is clearly a comment and one, moreover, made with a view to determining what order might be made in the light of the Court's decision that the appeal should be dismissed. In principle, therefore, it is difficult to understand how it could justify an application to set aside, and reverse, the underlying decision of the Court.
4.4 It is necessary to recall the sequence of events in this case to understand the significance of the point made on Mr. Walsh's behalf. An application was originally made under Article 40 seeking relief on the basis that Mr. Walsh's detention under the order of the Circuit Court was unlawful. The High Court judge held that the sentence was disproportionate to deal with what was described as "common or garden contempt". The Court of Appeal reversed this decision and this Court, as already stated, granted leave on a single ground relating to the procedures to be followed. In accordance with the Rules of Court and the statutory practice direction, Mr. Walsh delivered extensive written submissions of just over 10,000 words relating to that issue. It has not been suggested that those submissions contained anything which might be construed as an acknowledgment of error or regret.
4.5 Subsequently, in Tracey , the IHREC delivered submissions suggesting that there was a jurisdiction short of contempt for maintaining order in a courtroom, which could permit exclusion of a person from a courtroom and, indeed, the imposition of punishment, which did not fall within Article 6 of the European Convention on Human Rights or attract the procedural guarantees required by that provision. At case management, the parties in Walsh were invited to consider this submission and to address submissions to this Court on the following basis: if the Supreme Court upholds the legal argument advanced in the written submissions of the IHREC in the Tracey case as to the criminal contempt jurisdiction, or a variation of that argument, how would that impact on the facts of the Mr. Walsh's case?
4.6 It was in this context that Mr. Walsh delivered two-page submissions, dated 4 February 2018 and received in the Supreme Court Office on 13 April 2018. Mr. Walsh's submissions of 10 May 2019 quote a portion of para. 5 of these earlier submissions, but it is necessary to set out the context in which this statement was made. It was acknowledged on behalf of Mr. Walsh that the core argument put forward by the IHREC was that there was a crucial distinction, with important procedural consequences, between what the submissions described as the "disciplinary" or "regulatory" jurisdiction to exclude from a courtroom persons who are disrupting court proceedings or who may be in contempt of court and to detain them for the duration of a court sitting, on the one hand, and the criminal contempt jurisdiction involving a formal conviction and sentence, on the other. Paragraph 5 of his submissions dated 4 February 2018 then continued:-
"That is essentially the case being made on behalf of the Appellant in this appeal. On the facts in the appellant's case, the judge was entitled to take regulatory contempt action against him because he would not stop talking; but the imposition of a criminal conviction and sentence for contempt was not within the jurisdiction because the appropriate safeguards and fair procedures were not in place."
4.7 It was apparent, therefore, that para. 5 of the submissions was framed as legal argument. It was, in the terms used, " the case being made on behalf of the appellant " in the appeal. It is perhaps understandable, therefore, if the judgment of O'Donnell J. did not recognise it as an acknowledgment of error on Mr. Walsh's part, still less an expression of regret. The limited nature of what it is now contended was such an acknowledgement of error on Mr. Walsh's behalf is apparent from its own terms. It is said that the judge was entitled to take action "because he [Mr. Walsh] would not stop talking". This, of course, is not how any of the courts dealing with the matter had characterised Mr. Walsh's behaviour and significantly underestimates it. Even then, it is clear from the reference to "regulatory" contempt that this only amounted to an acknowledgment that the conduct would come within the type of disciplinary jurisdiction to exclude persons from a courtroom, rather than the contempt jurisdiction properly described. Furthermore, it has been clarified by the letter of Mr. Walsh's solicitor of 28 March 2019, that "[d]espite the advice of his legal representatives to the contrary, the Appellant still believes he was entitled to speak in the Circuit Court to represent his sister".
4.8 Moreover, it does not appear from the letter, affidavit and submissions, which are consistent in this regard, that Mr. Walsh accepts that he was wrong to assert that the Court did not have jurisdiction to deal with any part of the case. In the light of these submissions, the thrust of what was said at para. 42 of the judgment of O'Donnell J. appears correct; Mr. Walsh's behaviour since the finding in the Circuit Court (and the upholding of the finding of contempt by both the High Court and Court of Appeal) falls far short of personal acknowledgement of error or an expression of regret. Nevertheless, in the interests of absolute accuracy, it is appropriate to record that what is said in para. 42 should be qualified by reference to the limited and belated acknowledgment contained in para. 5 of Mr. Walsh's additional submissions.
4.9 However, it is apparent that this has no implication whatsoever for the decision of this Court which Mr. Walsh now seeks to reverse. What is said at para. 42 relates to Mr. Walsh's conduct since the determination of contempt and the imposition of the sentence of imprisonment. It is directed to what, if anything, this Court should now do as a matter of law in respect of the issuance of a warrant. What is said at para. 42 of the judgment can have no consequences for the decision recorded at para. 38 to the effect that Mr. Walsh's detention was lawful. It is impossible, accordingly, to accept the proposition that what was said in para. 42 was "essential for a decision in the appellant's case … for the purposes of Article [34.5.6°]". Furthermore, since the question of the attitude which Mr. Walsh took to the finding of contempt was relevant to the question to be addressed under para. 42, and since a hearing was to be held on that issue in any event, it was open to Mr. Walsh and his representatives to draw attention to para. 5 of the written submissions of 4 February 2018 and to set out his current position, as has now been done. In the circumstances, other than the clarification set out in this judgment, the Court does not consider it is necessary to amend the judgment in any way in accordance with the procedures set out in Nash . Furthermore, the Court considers that this is plainly not a matter which is capable of giving rise to a legitimate claim for relief pursuant to the exceptional jurisdiction identified in Greendale .
5. The second error alleged
5.1 The second error asserted by Mr. Walsh is stated to be the following:-
"Para. 38 p. 35 - ‘All that happened at that early stage of the proceedings was that Mr. Walsh was removed from the court'".
5.2 It is submitted in this regard that Mr. Walsh was found to be in contempt of court before any offer of legal representation was made and that the Circuit Court judge directed that Mr. Walsh be arrested forthwith. However, it is absolutely plain that the Court was aware of the sequence of events. Indeed, the fact that Mr. Walsh was found to be in contempt before any legal representation was suggested was a central issue, specifically addressed at para. 38 of the judgment of O'Donnell J. Furthermore, in the recital of the facts in the judgment at para. 12, it was stated that "the judge found him in contempt and directed that he be removed from the courtroom". While that passage does not state explicitly that Mr. Walsh was arrested, it does not mislead in any way by suggesting the opposite. On the contrary, it was central to the Court's judgment that it was acknowledged that the Circuit judge had found Mr. Walsh to be in contempt at that point in the proceedings. It was for that reason that the Court had to address the argument recorded in para. 38 to the effect that the subsequent offer of legal aid and assistance, which came after the first occasion on which the judge had found Mr. Walsh to be in contempt of court, was not a sufficient compliance with the requirement of fair procedures.
5.3 It is very doubtful, therefore, that the statement "[a]ll that had happened at that earlier stage of the proceedings was that Mr. Walsh was removed from court" could possibly be understood by anyone as suggesting that he had not been found in contempt. The issue being discussed at para. 38 of the judgment was the question of the fairness of the procedures and, as stated in that paragraph, the Court considered it "useful to consider what occurred in the light of the distinction, already discussed, between the power to exclude and the power to punish for criminal contempt". The argument made by the IHREC (and to that extent, adopted by Mr. Walsh at para. 5 of the supplemental submissions already referred to) was that a person can be excluded from court without any elaborate procedural steps. Here, although there had been a finding of contempt and arrest, there had only been an exclusion and there had been no determination of punishment. It is, however, appropriate to record expressly, lest there be any doubt, that it was always the case that, at the initial state of proceedings, the judge had made a finding of contempt and had directed the arrest of Mr. Walsh, but had not proceeded to determine any issue of sentence or punishment. In the light of that clarification, however, the Court does not consider it necessary to make any amendment or adjustment to the text of the judgment. The court is also satisfied that the matter does not constitute a ground on which the Greendale jurisdiction could be engaged.
6. The third error alleged
6.1 The third issue relates to the sentence in para. 38, where it is said "when Mr. Walsh returned to court and the question of imprisonment was raised … he was given ample opportunities to address the issue". The complaint in this regard is captured succinctly in the first three lines of Mr. Walsh's submissions on the matter:-
"The question of imprisonment was not raised with the appellant at any stage until the sentence of imprisonment was actually imposed. When the question of sentence was raised, the appellant was not given necessary information."
6.2 It is correct to say that imprisonment was not raised, in terms, by the Circuit Court judge; rather, the judge referred to proceeding to "sentence" Mr. Walsh. However, this, it should be said, is recorded expressly at para. 15 of the judgment setting out the facts in issue in the following terms; "[s]he asked him had he anything to say before she proceeded to sentence him". As counsel on behalf of the Governor observes, sentence and imprisonment are often treated as interchangeable, at least colloquially. Imprisonment is potentially relevant only in the sense that, where it is possible a person who may be found guilty could be sentenced to imprisonment, this is a touchstone for the necessity that they be provided with legal aid (see State (Healy) v. Donoghue [1976] I.R. 325). However, since legal aid was being addressed at this point and was offered to Mr. Walsh, any possible difference between sentence and imprisonment was not relevant.
6.3 The legal issue was whether it was sufficient for the Circuit Court judge to offer legal aid to Mr. Walsh and ask him had he anything to say before she proceeded to sentence him. The passage in para. 38 could just as easily have read "and the question of potential imprisonment arose " or "and the question of a sentence of imprisonment was raised" or in a number of other ways, without in any way changing the sense of the judgment, still less the decision of the Court. In the interests of complete accuracy of the record, however, the judgment in this regard will be altered so that the sentence reads "and the question of sentence was raised".
6.4 Mr. Walsh also complains that the statement that he was "given ample opportunity to address the issue" is incorrect. However, that is to simply to seek to re-argue the issue which was determined unanimously by the Court. The Court had the full transcript of the proceedings before the Circuit Court judge and had to consider whether, taken in the round, the procedure was fair, even if it deviated from the process subsequently identified in Tracey. Mr. Walsh is entitled to disagree with the Court's conclusion that sufficient opportunity was afforded to him in the context of the case to address any issue. He is entitled to consider that the Court's decision in this regard is wrong, but he cannot contend that it is not final and conclusive as far as this litigation is concerned, within the meaning of the provisions of Article 34.5.6°. It follows that this issue also falls far short of engaging the Greendale jurisdiction.
7. The fourth error alleged
7.1 Finally, a further complaint is made of para. 38 in Mr. Walsh's submissions as follows:-
"The judgment asserts that the appellant did not seek legal representation under the Legal Aid (Custody Issues) Scheme for a successful High Court application under Article 40 and it appears that this, taken with the fact that the Appellant declined offers of legal representation in the Circuit Court, made it ‘hard to see how there is any reality to the complaint made on his behalf that he was not informed of an entitlement to legal aid'."
7.2 It is said that this "proposition" was not the subject of submissions or comment in the Supreme Court hearing. It is also said in Mr. Walsh's submissions that, at a directions hearing, MacMenamin J. made an order providing that this matter be covered by the Legal Aid (Custody Issues) Scheme with provision for a solicitor and two counsel and confirmation of that was respectfully sought. It was also said that "the judgment incorrectly states at p. 4, para. 4, that solicitor and counsel appeared for the appellant pursuant to an ad hoc voluntary scheme established by the Bar Council and Law Society for representation in the Supreme Court."
7.3 The position in relation to legal representation appears to be that, subsequent to leave being granted by this Court, the Registrar of the Court notified Mr. Walsh of the Supreme Court Legal Assistance Scheme, which had been agreed by the Chief Justice with the Bar Council and Law Society to provide representation for unrepresented parties in appeals to this Court where it had been determined that the appeal met the constitutional threshold for leave to appeal. Mr. Walsh was invited to make an application for this scheme and did so, with solicitor and counsel being nominated and assigned to him under the terms of the scheme. Contact details were provided for the solicitor. However, subsequently, no steps were taken. On 24 August 2017, Mr. Walsh sent an email to the Supreme Court Office stating that "Cahir O'Higgins is looking after this matter", although it appears the solicitor involved had not then come on record. Under the terms of the Legal Aid (Custody Issues) Scheme, it is necessary to mention the matter at the outset of proceedings and, at the conclusion of the proceedings, the Court concerned considers whether it should make a recommendation under this scheme. It appears, therefore, that the reference to an "order" being made by the case management judge was to the fact of the scheme being mentioned at that stage. It is clear that O'Donnell J. was not aware of this, and remained under the impression that Mr. Walsh's representation was being provided under the Supreme Court Legal Assistance Scheme. However, this does not reflect on any party, and having been now clarified, the Court does not consider it appropriate to direct any amendment to para. 4 of the judgment. This falls into the category, identified in Nash, of errors which cannot be said to be material or have any impact on an individual so as to require correction.
7.4 It is apparent that Mr. Walsh also complains about the comment as to the incongruity of it being asserted that the committal for contempt was invalid because of a failure to offer legal aid at the initial stage of the process in the Circuit Court, in circumstances where legal aid had been repeatedly offered and refused thereafter and where no application for legal aid in the nature of the Legal Aid (Custody Issues) Scheme was made in respect of the High Court or Court of Appeal proceedings. It is clear that this was a comment and not a decision or determination or even a part of the reasoning leading to a decision. It was not, for example, suggested or determined that if legal aid had been required at the outset, relief could nevertheless be withheld on grounds that it would have served no purpose, because legal aid was subsequently refused by Mr. Walsh and the assistance of the Legal Aid (Custody Issues) Scheme was not sought. Judges are entitled to comment on the matters which come before them. There is no requirement that any such comments or observations should be tried out in advance at the oral hearing so that submissions can be made on them. It is plain that this is not even asserted to be an error of fact, it is rather a comment made with which Mr. Walsh does not agree. It is now said on Mr. Walsh's behalf that, on his instructions, he might have accepted legal aid, if first offered. It is clearly inappropriate to seek to introduce such evidential material at this stage, by way of submission, but it is in any event irrelevant, for the reasons already addressed. The Court is also satisfied that this does not amount to a matter which begins to engage the Greendale jurisdiction.
7.5 Apart from a change to the sentence at para. 38 and the substitution of the word "sentence" for "imprisonment", and the clarifications set out in this judgment, the Court is satisfied that is has not been established that it is necessary to make any other amendments to the judgment under the procedure outlined in Nash . It is also apparent that the Court does not consider that any basis has been established for granting the exceptional relief identified in Greendale . Furthermore, it is appropriate to observe that the Court has entertained oral argument and written submissions on this matter in conjunction with the submissions and argument in respect of the matters set out at para. 42 of the judgment, which had always been intended to be the subject of further submission. Had the matter stood alone, the Court is satisfied that the matters identified would not have satisfied the test identified in McKevitt and embodied in Practice Direction SC17, so that leave to issue a Greendale motion wold not have been granted.
8. Paragraph 42
8.1 Finally, it is necessary to turn to the question raised under para. 42 of the judgment of O'Donnell J., relating to such further order as might now be made. It was submitted on behalf of the Governor that the decision in Freeman v. Governor of Wheatfield Prison [2016] IECA 342, [2017] 1 IR 314 establishes the proposition that, where the Court had reversed a decision releasing an applicant from prison in the course of a legitimately imposed sentence, the applicant concerned remains subject to the balance of the sentence, notwithstanding circumstances where the sentence would have been completed prior to the determination of the appeal, had it run its course without interruption.
8.2 While not making any concession in this regard, counsel for Mr. Walsh was not in a position to advance any contrary argument. Accordingly, the Court will proceed on the basis that, should it so determine, it has jurisdiction to direct that Mr. Walsh serve the balance of the sentence imposed by the Circuit Court judge. The little that can be advanced on behalf of Mr. Walsh at this stage is set out in the letter of his solicitors of 28 March 2019. It was said there that:-
"The Applicant has instructed that a) in all the circumstances, he will not apologise for his conduct; b) in this regard he does not wish to show disrespect to any judge personally or otherwise; c) he would not in further continue to assert a right to speak in the face of a final determination by a judge that he was not entitled to so; but that d) he will not apologise under threat of a finding that he engaged in criminal conduct or under threat of the activation of a criminal sanction."
8.3 It was, however, submitted in the letter of 28 March 2019 that the Court could and should impose an unconditional stay on the order and in doing so, take account of the following matters:- "a) The passage of time since the passage of time since the imposition of the original sentence;
b) the time, effort, inconvenience, and expense and stress to which the applicant was subject as a result of participating in the legal proceedings, in the High Court, the Court of Appeal and the Supreme Court; and
c) the fact that he was willing to agree to be represented by a solicitor and counsel which resulted in
8.4 It is notable that Mr. Walsh does not set out any personal circumstances in mitigation, either by way of explaining his conduct, or in suggesting any circumstances that would mean that the punishment was inappropriate or would be too severe. The characterisation of the opportunity afforded to him to purge his contempt, under the judgment of this Court and that of the Court of Appeal, as being one under a "threat of a finding that he engaged in criminal conduct" or a "threat of the activation of criminal sanction" is plainly misconceived. It is not clear why matters such as his willingness to be legally represented or the making of submissions by his lawyers should be considered relevant to the issue. While some time has passed since the original Circuit Court order, that has been because of proceedings issued by Mr. Walsh, which have failed both in the Court of Appeal and this Court. In those circumstances, this Court cannot see that any basis has been established for interfering with the operation of the judgment of the Court of Appeal and will accordingly affirm the order of the Court of Appeal concerning the reissuance of the warrant of committal, so that Mr. Walsh will serve the remaining ten days of the sentence imposed on him on 31 May 2016. 