O'DONNELL, J. --- Introduction
1. At a hearing at the Circuit Court in Waterford on 31 May 2016, the appellant, David Walsh, was convicted of contempt of court and sentenced to two weeks' imprisonment. On 2 June 2016, a third party , Mr. sought an inquiry under Article 40.4 of the Constitution on Mr Walsh's behalf. Barrett J. made an order for an inquiry . Unusually , and in the light of the circumstances, Noonan J. then made an order for the production of the digital audio recording (-D.A.R.") of the hearing in the Circuit Court. The inquiry proceeded before the High Court (Humphreys J.) on 3 June 2016, following which he made an order directing that the appellant be released from custody . A written judgment ([2016] IEHC 323) was delivered on 13 June 2016. The essential ground of the High Court's judgment was that, while the learned judge considered that the appellant was Undoubtedly guilty of contempt of court, the contempt was of a "common or garden" variety that could have been dealt with by less drastic methods, such as an order of exclusion from the courtroom. The imposition of a term of imprisonment was therefore disproportionate, and the detention accordingly unlawful.
2. The order of the High Court was reversed by the Court of Appeal in a judgment delivered on 25 March 2017 ([2017] IECA 106). Mahon J. (with whom Birmingham and Edwards JJ. agreed) confirmed that the court had listened to the D.A.R., and had concluded that. in all the circumstances, the Circuit Court judge's order was reasonable, proportionate and lawful. Accordingly , the Court of Appeal directed that the appellant be taken into custody to serve the 14-day sentence imposed upon him with credit for the period already served, but also stayed the order for seven days to allow the appellant to attend before the Circuit Court judge to purge his contempt. It appears the appellant took no steps to do so, and therefore on 30 March 2017 the Court of Appeal directed that the warrant should issue. On 5 May 2017, this court granted leave to appeal on the sole issue of whether the proceedings in the Circuit Court on 31 May 2016 were in accordance with fair and appropriate procedures before the appellant was found in contempt of court ([2017] IESCDET 53). The court made it clear that it was not suggesting that there had been any breach of fair procedures, but rather that it was appropriate that the matter be the subject of further consideration.
3. Before addressing the factual and legal issues in this case, it is, I think, necessary to make some observations on the procedure adopted, in order to establish the focus for the legal issues. These proceedings come before the Superior Courts as an inquiry under Article 40.4 of the Constitution. grounded, moreover , on an afftidavit of a third party . Mr. Beades, who was not present in court on the day in question and accordingly cannot offer any evidence in relation to what occurred. It is not suggested that he has any prior connection with the case; Or knowledge of the underlying circumstances. While the appellant in this case was undoubtedly in custody at the time of the application, 1 nevertheless have some doubts as to the appropriateness of Article 40 as a vehicle for addressing the appellant's complaints (or at least the complaint upon which he appears to have succeeded in the High Court relating to the proportionality of his sentence particularly when they are based on an evidential foundation that is necessarily unsatisfactory . An appeal would have provided an opportunity for a full review of the matter , including the sentence imposed, where, moreover , in order to succeed, the individual would merely , have had to show the sentence was excessive, rather than attempt to discharge the considerable burden of showing that it was so disproportionate as to render the detention unlawful.
4. Here, the court has available to it both the transcript of the proceedings in the Circuit Court on 31 May 2016 and a copy of the D.A.R. Furthermore, solicitor and counsel appeared for the appellant pursuant to the ad hoc voluntary scheme established by the Bar Council and Law Society for representation in the Supreme Court and who made helpful submissions. The case was also heard in conjunction with another appeal concerning the law of contempt (Tracey v. McCarthy , Supreme Court Record No, 135/2016) in which the Irish Human Rights and Equality Commission ("IHREC") made submissions, which, it was agreed, could also be considered for the purposes of this case. These developments are welcome. They mitigate somewhat the difficulties created by the limited (and indirect) evidential record, and have allowed the court to address the important issues raised against a more detailed and comprehensive background than might have been the case. Finally , the determination, in granting leave to appeal in this case and in Tracey makes it clear that the focus of the appeal is not the proportionality of the order of committal, but rather the fairness of the procedures which preceded it, which is properly a matter capable of being raised on an application under Article 40. However , it remains an importan t point that an application for an inquiry under Article 40 should not be treated as a form of appeal from an order of committal for contempt.
5. The species of contempt of court of which the appellant was found guilty was contempt in the face of the court (in the Latin phrase, contempt in facie curiae ): that is, contempt occurring in the court room itself or in its precincts and disrupting the court proceedings. Accordingly , it is apparent that this case does not involve consideration of the well-established law relating to civil contempt. The old-fashioned term, the Latin tag, and the fact that much of contempt in facie curiae involves disruptive behaviour , can lead to suggestions that punishment for criminal contempt in such circumstances is an excessively authoritarian and pompous response to behaviour which is encountered in everyday life in, public meetings, university lectures, and even schoolrooms, where the requirement to maintain order does not usually give rise to the possibility of an immediate committal to prison. This, however , is in my view the wrong starting point for understanding the law of criminal contempt as it applies in this context, and runs the risk of leading to the wrong conclusion.
6. No-one, not even a wholly successful party vindicated by the outcome of proceedings, can pretend that going to court is an enjoyable experience. Apart from the stress and anxiety involved in having the merits of a person's actions, conduct and behaviour debated, sometimes challenged, and adjudicated upon, the courtroom also imposes certain requirements of tolerance on all participants which they can find extremely difficult. Judges must listen to arguments and evidence that strain both patience and credulity . Witnesses must submit to cross- examination, and may sometimes hear submissions that reflect upon their credib ility, or contrary evidence which they believe to be misguided or even deliberately false. Judges may sometimes be required to give decisions they find uncongenial and contrary to their personal views, and lawyers and litigants must accept and abide by decisions with which they may profoundly disagree. This is not a complete catalogue of all the difficulties encountered in a given day by anyone attending court, but it leads to a recognition that it is central to a court's capacity to administer justice that it should be capable of maintaining order . This in turn allows competing claims - sometimes highly charged, and always of importance to the participants - to be ventilated, fairly and dispassionately considered, and adjudicated upon. As was said long ago, of all the places where law and order must be maintained, the first place is in the courtrooms themselves. The administration of justice demands of parties that they trust this system and accept its outcomes. Parties are required to accept the decision of the court on the case itself, and on intermediate issues, even when they strongly disagree . Most individuals recognise that this is a price that must be paid, because it is an unavoidable component of the administration of justice. That is the idea, and perhaps the ideal, that disputes between parties (and indeed between parties and the State itself) can be submitted to an independent adjudicator where the outcome is to be determined by reason and law alone, rather than the physical or financial strength of the parties, their position, status, or influence, or their popularity or lack thereof in public discourse or on social media. A courtroom should provide an opportunity for any person to have their say on exactly the same terms as every other person coming to court, whatever their position, class, race, religion, sexual orientation, wealth, reputation, or political affiliation. It provides an opportunity , moreover , that any dispute will be determined only on the evidence adduced and argument advanced in that courtroom, and will be resolved by a decision pronounced in public. This ideal is not easily realised, but an essential component in achieving it is that a courtroom is as it were, a safe space for everyone who comes to it to be heard, in particular perhaps the victimised, the marginalised, and the weak, those who are shy, reticent and often overlooked, and those temporarily or permanently unpopular and to whom no one else is obliged to listen fairly and dispassionately .
7. The disruption of proceedings, the refusal to accept court rulings, and an insistence on continuing to speak when a matter has been determined by the judge, should not be mischaracterised as speaking truth to power , or merely challenging authority . A judge sitting in a crowded courtroom has little power other than respect for the law itself.
The refusal to accept rulings and decisions, the constant interruption of court proceedings, and the making of offensive interjections and comments is at best rude and inconsiderate to all other court users who are obliged to accept the necessity for calm in court proceedings, but more often amounts to simple bullying. When carried out in a concerted Manner , it is, and is often intended to be, menacing and intimidatory . These are serious concerns which should not be ignored or lightly dismissed. Disruption of proceedings attacks the very essence. of a fair hearing which it is the court's obligation to provide, and every litigant's right to obtain.
Facts
8. The 31 May 2016 was not the first time that Mr. Walsh was in court in relation to this matter . The proceedings, however , did not involve him. They were between. the Bank of Ireland and Ms. Feana Walsh, his sister . The proceedings were an application by the Bank of Ireland in respect a mortgage which it had entered into with Ms. Walsh. There was an outstanding sum of 68,145.34 on the mortgage Arrears had built up on the mortgage in the sum of 19,760. The last payment in relation to the mortgage had been made three and half years previously , in December 2012. The property itself was valued at Gray--75.000. None of this was in dispute, or has been disputed since. Ms. Walsh's case, it appears, was not the only case listed for that day. The courtroom was crowded, and the atmosphere tense and somewhat unruly .
9. It appears from the transcript that this matter had been in court on three previous occasions. On the first occasion in March 2015, Mr. Walsh (the appellant) had appeared and sought to contend that he was entitled to address the court on his sister's behalf, claiming a formal appointment for that purpose. It is very clear law that a party in this jurisdiction may represent themselves or be represented in court by a lawyer qualified to appear in court. A litigant in person may be assiste d by a McKenzie friend, who may with the person take notes and offer quiet suggestions. However , for reasons of policy which are shared by very many jurisdictions, and upon which it is not necessary to expand, there is no entitlement for an unqualified third party to represent a litigant in court.
Accordingly , the judge was fully entitled in law to refuse to \hear Mr. Walsh, and to proceed to hear the application then and there. However , the court permitted Mr. Walsh to make representations as to his entitlement to represent his sister , and then ruled that he could not do so, indicating that his sister should either be represented, or would have to appear herself. No one, either then or since, has suggested this ruling was wrong, or sought to appeal it or have it reviewed. The court then adjourned the matter to July 2015, to allow for Ms. Walsh to attend in person, or to arrange representation. 'On that occasion,., it seems there was no appearanc e, but the matter was further adjourned to May 2016. On that day the case appeared before a different judge, Judge O'Donoghue. That judge, it appears, reiterated that Ms. Walsh, the defendant, should appear in person, and adjourned the case to 3I May 2016. Letters were written to Ms. W alsh to that ef fect. None of this is disputed.
10. On 31 May 2016, however , Ms. Walsh did not appear , and was not represented by anyone with a right of audience. Instead, Mr. Walsh once again sought to argue her case. Nothing was said at the outset of the application, but at an early point, a reference was made to the directions of Judge O Donoghue that Ms. Walsh should attend on that date. At this point Mr . Walsh interjected:- `Objection your honour , that wasn't an order . I'm sorry about that, your honour , but it wasn't (sic) Order ."
At that point, the judge told him that he had no right of audience before the. court. Mr. Walsh insisted that he did, and continued:- "Clearly the' Power of Attorney Act clearly states that plus 'the Constitution says that only. the' Oireachtas has the solely exclusive of power to make laws of the State. I do have a right. My sister is unable, I have medical evidence there which was presented to the court to say that' she is unable to defend herself. So this court is doing an injustice to my sister when they don't allow me as her brother to defend her .
"Clearly the Power of Attorney Act clearly states that plus the Constitution says that only the Oireachtas has the solely exclusive of power to make laws of the State. I do have a right. My sister is unable, I have medical evidence there which was presented to the court to, say that, he is unable to defend herself. So this court is doing an injustice to my sister when they don't allow me as her brother to defend her ."
11. The judge asked for the power of attorney and she rose to consider it. It should be said at this stage that no evidence was presented suggesting that Ms. Walsh was too ill to represent herself, or was otherwise incapable of doing so. Nor has it been suggested in these proceedings, at any stage, that Mr. Walsh either had a general right to represent his sister , or That there were particular circumstances giving him an entitlement to do so. Nevertheless; the judge did consider the terms of the power of attorney , and after a short adjournment, correctly informed Mr. Walsh that he could not represent his sister, although the power of attorney could permit him to appoint a solicitor for her, if he wished. This prompted Mr. Walsh to protest that the court had no jurisdiction. Again, it should be said that there is no legal basis for this contention. He >continued to interrupt and disrupt the proceedings, maintaining that they could not proceed:- "You can't proceed, there is no jurisdiction. You can't have a court without jurisdiction there is no competent witness and this woman [counsel for the bank] is standing up there now telling you what is blatant lies because she is disobeying the court order ."
Again, the court rose briefly , it appears, simply to allow the situation to calm down.
12. When the case resumed, there was commotion in the courtroom, as is evidenced by the transcript. An unidentified speaker asked everyone to "leave the courtroom "to cool down a small bit". That request went unheeded, and there was further disruption. Mr. Walsh repeated his assertion that the court had no jurisdiction. The judge tried to tell him that the court had, but she was interrupted, repeatedly , by Mr. Walsh. The proceedings reached a low point when the judge, having explained to Mr. Walsh that he had no standing or entitlement to address the court, was again interrupted by Mr. Walsh's assertion that "YouTube says I have and so does the law".
The appellant continued to interrupt the judge and to assert he had. "jurisdiction under public Constitution". The judge told him that if he did not desist from interrupting the court she would have to find in contempt. The appellant responded, "fine if you want to make me in contempt make a charge and bring a separate case against me but you have no jurisdiction to hear this case. This barrister is misleading the court, she is telling lies". There were further interruptions and interjections during which Mr. Walsh sought to have the judge recuse herself from hearing the case. Then he claimed he was entitled to rescind Ms. Walsh's contract with the bank, purported to do so, and asserted that this deprived the court of any entitlement to determine the dispute. Again, the judge warned him that a continuation of his interruptions would result in him being found in contempt of court. Mr. Walsh responded, "fine, do that. Take me to the court and come in as a witness. There is no jurisdiction for this case here today". It should be said that it has not been suggested that there was any justification in law or fact for any of the matters asserted by Mr. Walsh in these exchanges. , When counsel for the bank attempted to resume the proceedings, Mr. Walsh again asserted that she was telling lies to the court. At, that point, the judge found him in contempt and directed that he be removed from the courtroom.
13. However , that was by no means the end of the proceedings. There was commotion in court. As Mahon J. in the Court of Appeal observed, the atmosphere was near anarchy . The judge rose to allow the situation to calm down.
She attempted to resume the hearing of the application, and was interrupted by a number of individuals. Again, the judge 'warned them that they were at risk of being found in contempt of court. One speaker maintained that he did not need permission because, as he said. "I'm a man. I am a man". Another had said, "I have a right to talk here today". When the judge addressed a person at the back of the court and asked them to identify themselves the speaker said, "1 have many names". The judge said, "well I am speaking to you, you know who you are now", to which the speaker replied, "my son calls me father and me mother calls me son, what name exactly do you want?".
Eventually , the judge found another perso n to be in contempt of court and directed they too be removed from the courtroom. This provoked further commotion, with a female speaker shouting, "you have blood on your hands, lads". Subsequently , the judge resumed the hearing of the-case, and, being satisfied that the matter had been established (including service on Ms. Walsh), made an order for possession. However , she granted a lengthy stay of eleven and a half months, and refused to order Costs. Plainly , these were extremely difficult circumstances in which to conduct a hearing. Nevertheless, it has not been suggested that there was any error in the manner in which the judge proceeded, or that the outcome was not manifestly fair in the circumstances to Ms. Walsh, who, it should be recalled, did not participate in the proceedings.
14. The Judge then directed that Mr. Walsh be brought back to court together with the other individual a Mr. Kavanagh, who also had been removed. She indicated that she would deal with both matters after the rest of the list had been disposed of.
15. When the matter of contempt was addressed, the transcript records that the judge offered- legal aid to Mr. Walsh on a number of occasions, which he refused. He repeated that he did not want a solicitor . The judge repeated this offer to Mr. Kavanagh in Mr. Walsh's presence, and he too said that he did not want to avail of a solicitor . Mr. Walsh then asked if he was being held in criminal contempt in a civil case, and the judge confirmed that this was so. He continued to interrup t the judge. When the judge then said that she was finding him to be in criminal contempt, there were further outbursts. At that point, Mr. Walsh said, "no. I have no, no please lads, I have no issue". When the registrar called for silence. Mr. Walsh continued, "I have it with me if the court wants to, make a charge against me for they believe to be criminal contempt by all means make the charge, but let's have a case ... this is of a-judge, get in the witness box and swear on the bible and let's have the case because I have issues surrounding whether this court has jurisd iction over me because there was no competent witness in the case ...".
The judge then said that she had made her orders and found him in contempt of court. She observed there were two solicitors in court "ready willing and able to defend you in any way". Mr. Walsh continued to interject and interrupt. The judge explained in detail why it was she was finding him to be in contempt of court. She asked him had he anything to say before she procee ded to sentence him. In particular , she asked him whether he wanted to apologise. Again, Mr. Walsh interrupted, "1 would apologise to anybody because I am man enough to do it but I don't know where I've done wrong. That's the problem". The judge then explained to him again why he was being found in contempt. Mr. Walsh interjected. Ultimately , the judge found him in contempt and sentenced him to two weeks' imprisonment. Mr. Kavanagh was then dealt with. He was asked if he was sure he did not want a solicitor .
He suggested he did not understand what the court was saying and that he would apologise to the court, saying, "but I do believe I stood up in honour". Having been asked to confirm that he apologised, he confirmed that he did, and the judge told him he was free to go, but would not be allowed to persist as he had behaved that day. After a further break, Mr. Walsh was brought back into court. He had asked about the poss ibility of an appeal. He was told by the judge that the position was uncertain in relation to appeal, but that he was nevertheless entitled to get legal advice. She also offered him a final 'oppo rtunity to apologise for his behaviour . Mr. Walsh maintained he had done nothing wrong. At that point, he was remo ved from court and taken into custody , which in due course gave rise to these proceedings.
The law in relation to contempt in facie curiae
16. The justification for law of contempt is as old as the law itself. Some of the history of the procedure is traced in the judgment delivered by McKechnie J. A courtroom cannot be a forum where the rule of law is applied unless those rules of law which promote a calm atmosphere and the orderly resolution of issues are maintained. That atmosphere of order may be taken for granted in most courts on most days, but it cannot be achieved without the possibility , even if rare, that persistent and deliberate breach will attract a serious sanction. The enforcement of order must be immediate. The commencement of separate proceedings to be heard by a different court at some later date cannot be an effective way to deal with the immediate issue. Furthermore, in serious cases of deliberate breach, there would be a risk of endless replication of proceedings if a contemnor proceeded to disrupt each of the proceedings in turn. While this may be only a possibility , it is by no means unrealistic, as the experience of any modern Irish courtroom will show . If the justice system could not immediately protect the courtroom proceedings from disruption, it would become correspondingly difficult not just to transact the business of the court, but also to persuade litigants, witnesses, and all others who have to have recourse to the courts system to trust it and to continue to abide by its decisions, even when they disagree with them. Yet that acceptance of outcomes is central to any civilised society based on the rule of law. These considerations were set out in the observations of the Law Reform Commission of Canada which were quoted with approval by the Law Reform Comm ission in its report entitled Contempt of Court (L.R.C. 471994), at para. 4.7:- "First, the judge must, remain in full contr ol of the hearing. If it is interrupted by misbehaviour in the court-room, he must take steps to restore order as quickly and effectively as possible. The time factor is crucial: dragging out the contempt proceedings would mean a lengthy interruption to the main proceedings, thereby paralysing the court for a time, and indirectly impeding the speed and ef ficiency with which justice is administered.
Secondly , the judge's power to control the court proceedings would be weakene d if contempt proceedings were heard by another court. The second court would have to hear evidence about the act, with a judge before whom the disruption had taken place as principal witness. And should the accused again misbehave in court, the contempt case itself would have to be referred to still another court, and so on. The administration of justice could be brought to a complete standstill.
Accordingly , Jo ensure the effective administration of justice, the presiding judge must remain in control of the proceedings. He must therefore be able to use the classical summary procedure for cases of misbehaving in court."
17. There are .difficulties, recognised in many jurisdictions, in reconciling the featu res of the summary jurisdiction for contempt with modern developments in the law more generally . While few people are actually found guilty of contempt in the face of the court, and fewer are committed to prison for a period of more than days, nevertheless the fact that the penalty for a criminal contempt is potentially unlimited has led to the argument that it is anon-minor offence giving a right to trial by jury under Article 38 of the Constitution. In State (D.P.P.) v. Walsh [1981] I.R. 412, the Supreme Court, in a number of judgments giving different reasons, held that the High Court had the power to try the matter summarily . It has also been argued that, since it is nominally a criminal matter (albeit an unusual one) which can lead to a loss of liberty , a prose cution for criminal contempt necessarily gives rise to an entitlement to be legally represented, and, in cases where the party cannot afford a lawyer , to have legal aid consistent with the entitlement identified in State (Healy) v. Donoghue [1976] I.R. 325: Furthermore, the specific field of contempt in facie curiae was the subject of the decision of the European Court of Human Rights ("ECtHR") in Kyprianou v.
Cyprus (App. No,73797/01) (2007) 44 E.H.R.R. 27, which suggests that a court cannot be the trier of fact where the allegation of contempt involves comments directed against the presiding judge or judges, or which may be thought to be personally of fensive to them.
18. Finally , there has been some discussion, (touched on in the extract from the Law Reform Commission of Canada publication quoted in the Law Reform Commission report cited abov e) as to whether , if separate proceedings are commenced, the original judge -would become a necessary or even a compellable witness. These and other issues are now routinely discussed on social media, and, indeed, as the evidence in this case perhaps suggests, information is in circulation in that context which is not always accurate. In the present case, it is possible to see traces of different legal arguments in the exchanges in the transcripts. Certainly , it appears from the exchanges that Mr. Walsh was not encountering the concept of contempt of court for the first time when the proceedings on 31 May 2016 took the turn they did. It is the case that the disruption of proceedings by the repeated advancement of contentions in relation to the nature of the contempt power , which appear imperfectly comprehended and are certainly not easily comprehensible, is an increasing phenomenon. There are, however , undoubted conceptual issues in seeking to reconcile the ancient law of contempt with procedures now routinely required in modern criminal proceedings. But the difficulty of accommodating some of the aspects of the ancient law of contempt with recent developments in the law should not lead to the conclusion that the law of contempt is an anomaly which should be removed from the law , or quietly abandoned.
19. The power to fine, or commit a person to prison for contempt in facie curiae serves at least two interlinked purposes. The first, and most immediate, is the maintenance of order in the particular courtroom. The second is the punishment of persons who simply refus e to obey the orders of the court, and seek to disrupt proceedings and prevent them from taking place in the atmosphere of calm objectivity which is most conducive to a fair hearing..
Obviously , these objectives are interconnected: pursuit of that latter will make achievement of the former more likely . Traditionally , therefore, the justification for a fine or imprisonment for contempt was seen as inextricably linked to the requirement for an immediately effective maintenance of order in a courtroom. However , the decision of the High Court in this case, reflecting in this regard some academic commentary , raises the possibility of a distinction between the two approaches. In particular , the High Court judge considered that it was not necessary , and was therefore disproportionate, to order the imprisonment of the appellant to maintain order . On this approach, it followed that the detention was unlawful. It will be necessary to consider that reasoning in a little more detail later in this judgment, but for present purposes, the That that a distinction is made between removal from court and punishment for contempt is significant.
20. The IHREC draws a similar distinction in its submissions in Tracey v. McCarthy , Supreme Court Record No, 135/2016. Building on the case law of the ECtHR, Ms. Lacey S.C. suggests that the immediate disciplinary function may be achieved by orders excluding the offending party from the courtroom and even going so far as providing for a short detention and the imposition of a not insignificant fine. It is submitted that, as a matter of the law of the European Convention of Human Rights ("ECHR"), such measures do not constitute punishment for a criminal offence. Accordingly , they do not fall to be analysed under the terms of the law applicable to Article 6 ECHR, and do not attract the procedural guarantees of that Article. It is suggested that a similar analysis can be adopted as a matter of Irish constitutional law , and the common law .
21. The IHREC points out that in a series of cases the ECtHR has addressed the power of courts to maintain order , and in doing so has held. that certain measures taken by courts for that purpose fall outside the scope of Article 6 ECHR, and therefore the procedural requirements of that Article. in Ravnsborg v. Sweden (App. No, 14220/88)
(1994) 18 E.H.R.R. 38, the court addressed certain disciplinary , sanctions including a small fine and exclusion from the courtroom, and even detention in custody during the sitting of the court. At para. 34 of its decision, the court said:-- "Rules enabling a court to sanction disorderly conduct in proceedings before it are a common feature of legal systems of the Contracting States. Such rules and sanctions derive from the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings. Measures ordered by courts under such rules are more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal offence. It is, of course, open to States to bring what are considered to be more serious examples of disorderly conduct within the sphere of criminal law, but that has not been shown to be the case in the present instance as regards the fines imposed upon the applicant.
For these reasons the Court reaches the conclusion that the kind of proscribed conduct for which the applicant was fined in principle falls outside the ambit of Article 6. The courts may need to respond to such conduct even if it is neither necessary nor practicable to bring a criminal charge against the person concerned."
22. In Putz v. Austria (App. No, 18892/91) (2001) 32 E.H.R.R. 13, the court addressed measures in the Austrian Code of Criminal Procedure concerning responsibility for keeping order at hearings, which permitted quite significant sanctions. Nevertheless, the court was prepared to hold that such matters fell outside Article 6 ECHR. At para. 37 of the judgment, the court said:-- "The Court notes that Article 235 of the Code of Criminal Procedure concerning responsibility for keeping order at hearings provides for the imposition of a fine not exceeding ATS 10,000 or, where essential for maintaining order , a custodial sentence not exceeding eight days. ...
In this respect, the Court notes a number of dissimilarities between the instant case and the Ravnsborg case, in which the amount of die 'fines could not exceed 1,000 Skr and the decision to convert them into custodial sentences required a prior hearing of the person concerned. This finding, however , 'is qualified' by three features of the instant case: firstly , as 'in the Ravnsborg case, the fines are not entered in the criminal record; secondly , the court can only convert them into prison sentences, if they are unpaid, and an appea l lies against such decisions, as it does against custodial sentences imposed straight away at the hearing where that course was essential for maintaining order; lastly , whereas in the Ravnsborg case the term of imprisonm ent into which a fine could be converted ranged from 14 days to three months, in the instant case it cannot exceed 10 days.
However real they may be the dissimilarities, which reflect the characteristics of the two national legal systems, therefore do not appear to be decisive. In both cases the penalties are designed to enable the courts to ensure the proper conduct of court proceedings.
Having regard to all these factors the Court considers, like the Government, that what was at stake for the applicant was not suf ficiently important to warrant classifying the of fences as `criminal'."
23. Subsequently , in Pecnik v. Slovenia (App. No, 44901/05) (Unreported, Europ ean Court of Human Rights, 27 September 2012), the court sounded a note of caution, and found certain court management procedures which were not classified as criminal in domestic law to be nonetheless subject to the guarantees contained in Article 6 ECHR: In essence, that was because the fines could be converted into substantial prison sentences in the 'absence of procedural guarantees. At paras. 30 and 34, the court said:-- "30. The Court reiterates that the question whether the criminal head of Article 6 applies has to be assessed in the light of three alternative criteria laid down in the. Court's case-law , namely the classification of the offence in domestic law , the nature of the of fence and the nature and severity of the penalty
34. While the Court does not find it necessary to decide whether in the present case the amount of the fine imposed and the one risked might have by themselves attained a level that made the sanction "criminal", it considers that the risk of conversion into.: such a substantial prison sentence and the lack of any guarantees, attached attached to the conversion indicated the degree of severity which brought the proceedings in question within the criminal sphere of Article 6."
24. The approach in this ECtHR case law is clear and reasonably consistent, and provides a useful perspective when viewing the requirement for fair procedures under the Constitution. Maintaining order , on the day in a courtroom by the exclusion of a person 'from the court, by the imposition of fines, or even by detention for a short time, does not amount to the trial of a charge or a determination of a civil dispute attracting the procedural protections guaranteed by Articles 34 to 38 and 40.3 of the Constitution, and Article 6 ECHR. However , there are difficulties in translating this approach directly into the context of the Irish constitutional order . It is sometimes, and rather casually , assumed that the increase in rights-guaranteeing instruments which have effect in Irish law can only lead to a greater protection of the rights of the individual. That, however , assum es that the various instruments analyse and define rights in the same way, and provide for them, on the same register. However , a number of the instruments taking effect in Ireland operate at an international level and have regard to many different legal' systems. There are many different ways of dealing with behaviour designed to disrupt court proceedings; and it, is quite possible that under the Irish Constitution the common law has developed in a way that provides a distinctive but fair and balanced approach to Such conduct, and that, for example, the analysis necessary under the ECHR approaches the situation differently , but also achieving a fair and balanced result. Nevertheless, when the two systems are superimposed upon each other , the result may be incoherent and Unbalanced. While, for example, the jurisprudence of the ECtHR took a more restrictive view than the traditional common law of the application of contempt jurisdiction in cases akin to Kyprianou v. Cyprus (App. No,73797/01) (2007) 44 E.H.R.R 2.7, Irish law, for its part, cannot so easily accommodate the concept of administrative sanctions and non-criminal fines. As Hardiman J. observed (dissenting) in DPP v. Independent Newspapers (Ireland) Ltd [2008] IESC 8, [2008] 4 I.R.
88, at p. 94 (quoting no less an authority than Palles C.B. in Attorney General v . Kissane (1893) 32 L.R. Ir . 220):- "There is in my view no answer to the point made by Palles C.B.: Now no-one will contend that the jurisdiction to fine and imprison is not essentially criminal."
In any event, even if: Such extra criminal sanctions were possible, it would still follow as a matter of Irish law that fair procedures would be required.
25. However , the distinction sought to be made is nevertheless useful, and, as already observed; finds an echo in the judgment of the High Court in this case. In my view, it is useful to consider whether the traditional, single, one- size-fits-all approach to contempt, where the threat of punishment (with the theoretical possibility of unlimited punishment) is deployed for all cases of disruption of court proceedings, cannot be refined somewhat. Even within the rubric of traditional contempt law, what fair procedures require for measures designed simply to ensure that order is maintained at a particular hearing may be quite different from, and less elaborate than, the measures required before punishment such as a fine or imprisonment can be imposed for breach of the law .
The power of removal to maintain order in court
26. The observation of the ECtHR that a court must have the indispensable power to ensure the proper and orderly function of its own proceedings is equally applicable in Irish law, and perhaps more so, given that Irish law, by European standards, is relatively expansive both in principle and in practice where it comes to permitting representations to be made by litigants, or on their behalf. However , as the High Court judge observed here, there is often merit in not reacting to every slight and each instance of bad behaviour . Court can be a stressful experience for all participants - particula rly for those who are attending for the first time, or those whose home, livelihood, family structure, or some other important aspect of their life may be threatened in the proceedings. It is often wise to allow some things to pass. In my view, Irish courts do this regularly . There are, I suspect, many more contempts of court committed than are ever raised by a court, let alone pursued beyond the point of apology and resulting in imprisonment: Where, however , behaviour cannot be ignored, or it is a threat to the conduct of the proceedings being heard -- and the presiding judge is really the only judge of this -- a court has full power to address the matter , and if necessary order that a person who will not desist from such conduct is removed from the court. If he or she persists, and seeks to re-enter the court, then such conduct would constitute a breach of the order , and would give rise to the possibility of further proceedings and sanction.
27. The power to remove a person from the courtroom (and order that they not be permitted to return) probably flows from the same source in the common law as the law of contempt, that is, the objective of maintaining order . It is not necessary that there should be a determination that the conduct amounts to contempt (although, if sufficiently serious, such a determination may be made). This power has long been established as part of the common law. In Arlidge, Eady and Smith on Contempt (5th edn., Sweet & Maxwell, 2017), para. 10-112, the authors state that "[41 courts have power to order a person interrupting or hindering their proceedings to leave court, and to have him removed if he fails to leave", citing R v. Webb ex p. Hawker (The Times, 24 January 1899). An article in the Journal of Criminal Law on the power of magistrates to deal with contempt, 'Contempt in the face of a court of summary jurisdiction'(1939) J.Crim.L 291, cites an earlier case Willis v. Maclachlan (1876) 45 L.J.Q.B. 689 for the proposition that "[d]espite the absence of a specific power either at common law or by statute, in practice justices have sufficient power to ensure, save in exceptional circumstances, that justice shall be administered unhindered and with proper decorum. A person may be turned out of court if in fact he is hindering the business of the court by disturbance or misconduct or contempt or for any other reason which renders expulsion necessary to ensure due decorum in the proceedings of the court [...]". These observations, made at a time when the magistrates' court in England and Wales was not a court of record, must apply if anything with greater force in this jurisdiction, where all courts are established pursuant to the Constitution and administer justice under Article 34, and all are now also courts of record. Removal from court does not require elaborate fair procedures. The process must be capable of being conducted reasonably summarily , since otherwise the proceedings (which it is the function of the court to determine) will be disrupted and diverted; a situation which would itself be fundamentally unfair to the participants involved, and particularly those who abide by the court's directions. There is no constitutional restriction on removal of a person from court for the purposes of maintaining order . It is the case that, pursuant to Article 34.1 of the Constitution, the administration of justice must lie carried out in public, save in such special cases as are provided' for by law. The requirement that the court will perform its function in public is an important guarantee of a courts system to which members of the public may have access as of right, and therefo re of the transparency of court proceedings. That, however , does not give any individual member of the public an entitlement to behave in, a courtroom in a manner that would not be tolerated elsewhere. The exclusion of one or more individual members of the public does not mean that the hearing is not being conducted in public, or that the public do not have access, which is what the Constitution requires. 28 The procedures necessary before an individual non-litigant can be removed are simple and summary . The person should be warned that their behaviour , if persisted in, may result in exclusion from the courtroom, and they should be given an opportunity of making any representation, whether by way of explanation and excuse, or apology , or an undertaking not to repeat the conduct, before the order is made and the person is removed. This is the minimum required by fair procedures. Howe ver, it will often be the case, as indeed the present case illustrates, that judges will take further steps and give further opportunities to avoid the making of an order . There is a distinction between what is required by law and what is suggested by good sense and an understanding of human behaviou r. Court proceedings are stressful. Emot ions often run high, and people, including judges, say and do things they later regret. It is wise for the judge to allow things to calm down if possible, to explain the procedure and the need for it; and to rise to allow matters to settle down and to permit time for some reflection. However , while wisdom, forbearance, and patience are very desirable virtues, the validity of any exclusion from court is not to be determined by considering, in hindsight, if there might have been other ways of resolving matters. As long as the person is first warned, and, if he or she nevertheless persists, is given an opportunity to make representations, then the court may have him or her removed from the courtroom. This is not dependent on any finding of criminal contempt or the exercise of any contempt jurisdiction.
29. When the person whose conduct is such that a court may consider it necessary to have them removed is themselves a party to the proceedings. then the situation is more difficult. A court would normally be very reluctant to remove a litigant from the proceedings, especially if representing themselves. In such circumstances, adjournment of the proceedings may be a preferable option. But even in such a case, a litigant can be excluded if there is no other means of ensuring that the proceedings can be determined: see The People (Attorney General) v.
Saunders & Jasinski (1962) I Frewen 283, The People (Attorney General) v. Messit [1972] I.R. 204, the judgment of the High. Court (Murphy J.) in Lawlor v. District Judge Hogan [1993] 1.L.R.M. 606 at p. 609, and the judgment of Charleton J. in O'Brien v. Judge Coughlan [2016] IESC 4 (Unreported, Supreme Court, 11 February 2016), para. 6.
Where facilities are available to allow a person to continue to observe and participate remotely through video link, this may be a useful course to adopt, but the power to exclude in serious cases remains. Even a case, of this type, however , arrangements should be made to ensure that the D.A.R. is made available to the person as soon as possible thereafter , so that they are aware of what has occurred in their absence. One practical aspect of this, however , is that any order the court makes in this regard must be capable of being enforced promptly . It is an essential aspect of the separation of powers that the executive branch enforce the orders of the judicial branch.
That means that members of An Garda Siochana must be available and present in court if necessary .
The powers of the court under the contempt jurisdiction
30. The step a excluding somebody from court, while itself rare, will often be enoug h to permit the court to proceed.
However , there will, be cases where the conduct is considered particularly serious, and that may occur where the conduct is persistent, deliberate, or where it is part of a concerted activity . Similarly if a person breaches the court's order and attempts to re-enter the courtroom, a court may well consider that the breach of the order may be capable of constituting contempt. In eithe r case, a court may consider that it is necessary to invoke the contempt jurisdiction and hold a hearing to consider whether the conduct warrants punishment in the nature of a fine or imprisonment. If so, then more by way of fair procedures is required.
31. In those circumstances, the person must first 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 insuf ficient). It is not always necessary to proceed to such a hearing immediately , although in the nature of things it is not desirable that if should be unduly delayed. However , it may be necessary , and even` beneficial, to postpone a hearing for a short period, to allow the defendant to arrange legal representation, and permit some reflection and calmer counsel. The court may order the person to leave the courtroom during that time, in order to remove any immediate threat to the proceedings. While it may only rarely arise, the court has a power ancillary to the contempt jurisdiction to have the person temporarily detained to permit the contempt hearing to take place at a later point: see R. v. Cohen [2015] EWCA 2170. This, however , is a power to be carefully exercised and should not be for more than a day .
32. The accused person may be represented at the hearing. Although in many cases the hearing may proceed on the basis that the facts are not contested , where a factual dispute arises, the D.A.R. will provide a record of what occurred, and it should not be necessary to call other evidence as to what happene d in court, particularly since the judge and the individual were, by definition, both present. In most cases, the only questions are whether the conduct (which, when verbal, can often be established definitively by the D.A.R) amounts to contempt, what attitude the individual now adopts, and the court's conclusion. The procedure should be explained and the specific conduct or actions in respect of which the, summary contempt jurisdiction is invoked should be stated. It can when be established whether the individual contests the facts, or merely wishes to make submissions as to whether the matter amounts to contempt, or, if so, as to matters in mitigation. While it is difficult to see that there could be a live factual controversy in most cases, if a genuine dispute is raised, it will be appropriate to determine it. But since this occurs very shortly after the incident in the courtroom, it should not be necessary to have formal proof: it is sufficient if the party is informed of the behaviour or incident of concern. While this type of contempt is in its nature a criminal matter , since punishment may be meted out and proof must therefore be beyond reasonable doubt, it is sui generis in a number of respects, and cannot be shoehorned into standard procedures designed for different proceedings. There are substantial safeguards and guarantees of fairness. The criminal standard of proof applies.
Any decision is subject to appeal.
33. In the case of proceedings which come within the circumstances such as those considered by the ECtHR in Kyprianou v. Cyprus (App. No,73797/01) (2007) 44 E.H.R.R. 27, it will not be possible for the hearing to be determined by the judge who presided at the original hearing. That is because the law recognises that, where it appears that a judge has become personally involved in the issue because of a personal imputation made or for some other reason, it may also appear that a judge is making a decision in which they have become interested, in the legal sense of having a personal stake in the outcome, and any hearing giving such an appearance falls short of the self-evident requirements of impartiality the law demands. McKechnie J. suggests it may be possible to doubt the particular application of the principle in Kyprianou , but the principle itself is not in doubt, whether as a matter of constitutional law, the law of the ECHR, or the traditional Common law. In such circumstances, it would be necessary for the original judge to direct that the proceedings are heard by another judge. One way in which this may be achieved is by referral to the Attorney General to consider bringing procee dings for contempt, which might be brought in the High Court, which has full and original jurisdiction to hear all matters. Once again, the availability of a record (the D.A.R.) is of considerable assistance.
34. It is necessary to address the argument made in some commentary , and now regularly advanced by unrepresented litigants, that any contempt hearing must involve the judge becoming a witness and the subject of cross-examination by the litigant. Traces of this argument are to be found in this case, as exemplified by some of the interventions made by Mr. Walsh and recorded at paras. 12 and 15 above. Again, it is difficult to envisage a circumstance in which it would be necessary , and therefore appropriate, to require the original judge to give evidence. The judge is not the complainant or injured party: the essence of the offence is interference with the administration of justice. It is generally inconsistent with the obligation of a judge to be a dispassionate adjudicator for that person to become a participant in litigation relating to what occurred in a courtroom. For this reason, it is; for example, generally recognised as undesirable that a judge should swear an affidavit in judicial review proceedings, or indeed be made a party thereto: see, for example, Collins. and O'Reilly , Civil ,Proceedings and , Me State (2nd edn., Thomson Round Hall, 2004) at paragraph 5-67 and the cases there cited, and also the ,provisions of O. 84, r. 22(2A)(a) RSC. On the other hand, the law of contempt exists to prevent deliberate or mischievous interference with proceedings, and it is easy to envisage circumstances where-the procedure of a hearing for contempt could, itself be abused if it were to be reduced to a further dispute between a member of the public or litigant and the individual judge. For those reasons, any attempt to have a judge become a witness should be carefully scrutinised by the court hearing the proceedings. While it is impossible to be definitive about factual circumstances in every case, it is dif ficult to envisage circumstances where a judge would be a necessary witness.
35. This is the position at common law, mediated by the requirements of the Irish Constitution and the ECHR.
However , the reform of the law of contempt is under consideration by the Law Reform Commission: see, for example, its recent issues paper entitled Contempt of Court and Other Offences Involving the Administration of Justice (L.R.C. LP. 10-2016). The enactment of a modern statute providing for an effective law of contempt is long overdue. It would be helpful if procedures were clearly established and laid down in statute. Moreover , there are matters of evidence and procedure which could usefully be addressed. It is desirable that any legislation should have the benefit of a comprehensive, report and survey of the law by an exper t body . Any such developments remain matters to be considered by the Law Reform Commission and the Oireachtas, subject, however , to the requirement that any legislation must be compatible with the constitutional obligation on courts to administer justice. For the moment, however , the law of criminal contempt in Ireland is regulated by the common law, subject only to the more limited statutory provisions' contained in s. 6 of the Summary . Jurisdiction (Ireland) Amendment Act 1871 (in respect of proceedings within the Dublin Metropolitan District) and s. 9 of the Petty Sessions (Ireland)
Act 1851 (relating to District Courts outside Dublin). The common law, until amended or replaced by legislation, must operate ef fectively , but it must also operate consistently with the dictates of the Constitution and the ECHR.
Discussion
36. It is now necessary to return to the facts' of this case in the light of the observa tions set out above. It should be recalled that the proceedings are in the nature of an inquiry under Article 40 of the Constitution. While I can understand (without necessarily agreeing with) the view of the learned High Court judge that a lesser , sanction might have been appropriate in this case, the proceedings here are not an appeal against the severity of the sanction imposed, and the Superior Cour ts should in any event be astute to avoid the beguiling clarity of hindsight In order to succeed in an inquiry under Article 40, it would at a minimum be necessary to demonstrate not only that the sentence was excessive, but also that it was so disproportionate as to render unlawful an otherwise valid conviction for contempt. This is a high threshold, and in my view the Court of Appeal was correct in considering it had not been reached in this case.
37. The appellant insists that his conduct here should not be viewed as part of any organised attempt to disrupt the Circuit Court proceedings, notwithstanding the difficult and disruptive atmosphere in which the court was required to proceed. In the absence of any direct evidence in this regard, and since the court must be satisfied of any matter to the criminal standard of proof, I agree that the court should proceed on this basis, as indeed the High Court and Court of Appeal did. But the background is nevertheless relevant. As has been observed, there is a difference between shouting "Fire!" in a crowded theatre or cinema, and doing so in an empty field. Mr. Walsh's behaviour must be viewed against a background of highly unruly behaviour by a large number of members of the public, who, it appeared, had come to court either because they were involved in other similar cases, or possibly to support other litigants. Against this background, in particular , Mr. Walsh's behaviour was utterly unacceptable. The High Court agreed that it amounted to contempt. Given Mr. Walsh's obdurate refusal to accept the judge's rulings, and, indeed. his continued interruptions and insistence on his own views to the point where it'was difficult for the judge or anyone else even to speak, let alone carry on the business of the' court, it is hard to see how it could be viewed otherwise. If every litigant, or indeed any member of the public present in court, considered they were free to behave in a similar fashion, then it would be impossible for the courts to deal with cases, and to carry out their constitutional function of administering justice. It cannot be said that the sanction here was so disproportionate as to tender the detention unlawful.
38. In this court, however , the principal focus of the argument was on the procedur es adopted and the steps taken, with particular emphasis on the extent to which the appellant was informed of an entitlement to legal aid (always assuming that it could be demonstrated that he was not in a position to obtain a lawyer from his own resources) before the procedure was invoked. However , the assessment of the fairness of procedures is not a mechanical box-ticking exercise. A view must be taken of the overall fairness of the proceedings. In Nicholls v. Nicholls [1997] 1 W.L.R. 314, Lord Woolf M.R. observed, at p. 327: "[a]s long as the contemnor had a fair trial and the order has been made on valid grounds the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside except in so far as the interests of justice require this to be done."
I agree that the test is one of the overall fairness of the proceedings, taking due account of the atmosphere of the hearing, the sometimes chaotic and confused circumstances in which the issue of contempt arises, and being conscious of the dangers of hindsight. In this context, there are a cumber of features of which account must be taken. First, this was not the first occasion on which the case had been in court, nor even the first time the issue of representation had arisen. Indeed, because Mr. Walsh maintained that he had an entitlement, to represent his sister , the proceedings themselves had been considerably delayed. It is also apparent that Mr. Walsh was familiar with the concept of contempt of court, even if the source of his knowledge was dubious. On the other hand, it was noteworthy that, once he had been imprisoned pursuant to the order of the Circuit Court, he did not seek the benefit of the Legal Aid -- Custody Issue s Scheme for these proceedings. It is 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. Taken in the round, it is very clear both that he was repeatedly offered legal assistance and informed of an entitlement to obtain legal aid, and encouraged to seek it and accept it Furthermore, the issue involved could hardly have been simpler . Even the most truculent person must understand that if they continue to disobey a person in authority , they may face some punishment. In my view, it is also very clear from the proceedings that had Mr. Walsh been willing at any stage to agree to abide by the court's ruling, that the matter would not have proceeded to the imposition of a sanction, and that, had he apologised - even in the limited way that Mr. Kavanagh did - the matter would have been treated as closed. Counsel for the fifth respondent has pointed out that there were thirteen warnings, the court rose on four occasions, and the nature of the offending behaviour was explained several times. Any interested and fair-minded observer of proceedings in the Circuit Court on 31 May 2016 might be forgiven if they considered that there was a cavernous discrepancy between the law and reality if it were to be solemnly prono unced that in the events of that day it was Mr. Walsh who had been treated unfairly . Nevertheless, counsel who represented him in this court argued with some force that, when closely analysed, the offer of legal aid and legal assistance came after the first occasion the judge had said that she found that Mr. Walsh was in contempt of court. The subsequent offers of legal aid, it is said, cannot cure that defect. However , even taking this approach (which focuses so precisely and perhaps unrealistically on the sequence of events , rather than on the procedure as a whole) it is 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. All that had happened at that early stage of the procee dings was that Mr. Walsh was removed from the court. As already observed, that process could be carried out summarily . It did not require elaborate procedures, and still less the opportunity for legal assistance or legal aid, or any determination of contempt. When Mr. Walsh returned to court, and the question of imprisonment was raised, he was informed on a number of occasions of his entailment to legal aid, and given ample opportunity to address the issue. In all the circumstances, I am satisfied that fair procedures were complied with in this case and no injustice done to the appellant.
39. I have had the opportunity of reading in draft the judgment about to be delivered by McKechnie J. It contains the valuable and insightful aCCOUllt of both the history of the law of contempt, and its continuing justification. For myself, I would not view the judgment of Wilmot L.C.J. in Rex v. Almon (1765) Wilm. 243, as illustrating anything other than the antiquity of the law of contempt. That decision concerned a controversial form of contempt of court known as "scandalizing the court", treate d as virtually obsolescent in England and Wales in Secretary of State for Defence v. Guardian Newspapers Ltd. [1985] A.C. 339 at p. 347, formally abolished in that jurisdiction in 2013, and rarely invoked in this jurisdiction in recent times. At a minimum, the law of scand alizing is ar dubious, source of reinforcement for the law of contempt in facie, curiae , if such is required. However , and more importantly , I do not understand the judgment which I have delivered as in any way questioning the fundamental justification for the law of contempt of court, and in particular contempt occurring in the' courtroom and disrupting the proceedings.
40. It is apparent that McKechnie J. and I come to the same conclusion on this case, and the companion case of Tracey v. McCarthy , Supreme Court Record No, 135/2016. Accordingly , any differences between the judgments are essentially matters of, nuance and perhap s emphasis. I do ,not consider the approach taken in this judgment to be particularly radical or involving any signific ant restructuring of the law, and it is certainly , not intended to weaken the capacity of the law to, protect the integrity of court proceedings. Rather , the judgments seek to lay down clearly the approach a court should take when contemplating a determination of contempt, and the steps to be taken to ensure a fair hearing can take place in .a caim atmosphere. They emphasise that a court may exclude a person from court without any necessary finding of contempt, and that a court may properly exercise the summary jurisdiction for contempt, but Must do in accordance with basic fair procedures as required by the Constitution. Furthermore, and in the absence of legislation, it seeks to clarify the procedure which would allow the effective prosecution of those limited cases in which the behaviour involves the personal imputation of a judge so as to give rise to any perception of unfairness if that issue was to be beard by the judge the subject of the imputation or attack. In that regard, it is not, in my view , a far-reaching adjustment of the law , but rather a clarification and reinforcement of it.
41. It is, in my view, not just a counsel of prudence, but a performance of the judicial function to take account of modern insights and developments in other jurisdictions. I do not agree that it can be said that the law of contempt in facie curiae has never fallen foul of either the Constitution or the ECtHR: manifestly the decisi on in Kyprianou v.
Cyprus (App. No,73797/01) (2007) 44 E.H.R.R. 27 amounted to a finding that the application of the traditional common law power of contempt in facie curiae , at least in some circumstances, was a breach of the ECtHR.
Perhaps more importantly , the judgments in recent times, most notably that of Henchy J. in State (D.P.P.) v. Walsh [1981] I.R. 412, demonstrate that there has been a continuing process of courts (and not only those in this jurisdiction) addressing the law of contempt to ensure that it is compatible with the elementary requirements of justice which are required to be observed in any proceedings. I do not consider that the law is either so clear or effective in practice, or so free from doubt, that it does not need reconsideration. While respectful of what past decisions can teach us, it is important to recognise the significant developments in the perceptions of what justice requires. A consideration of history is useful in showing the continued importance of an effective law of contempt, but later generations may have differing views as to how the requirements of an effective law of contempt are to be achieved. In that regard, I do not perceive a significant difference between the approach taken in this judgment and that of McKechnie J., but that, again, is a matter for future courts. For the present, I would join with him in dismissing this appeal.
42. It has now been held by each court which has considered this matter , from the Circuit Court to this court, that the conduct in question amounted to contempt. Moreover , the arguments which Mr. Walsh insisted upon, i,e, that he had some entitlement at law to make representations in his sister's case and/or that the court lacked jurisdiction, were plainly wrong. At no stage of these proceedings has it been argued that he was right or even entitled to take this view. It is a disappointing feature of the case, therefore, that although considerable time has elapsed since the Circuit Court proceedings in question, he 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. This contrasts sharply and unhappily with his continued insistence that it was the Circuit Court judge who was in error. 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 proceeding s. 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.