Ireland: Kelly v. O’Neill and Brady
22 May 2000
After the defendant in a drug trial had been found guilty, but prior to sentencing, a newspaper published an article indicating that the police suspected the defendant of involvement in other crimes. The journalists were held in contempt and fined. They appealed against this decision.
Kelly v. O'Neill and Brady
 1 IR 354,  1 ILRM 507 (Supreme Court, Ireland)
|Theme:||Other content restrictions|
|Sub-Issues:||Administration of justice|
|Decision:||in certain circumstances it may be a contempt of court to publish an article before sentencing|
|Jurisdiction:||Ireland (Supreme Court)|
The plaintiff had been convicted by a jury of possession of a significant amount of cocaine for supply and was remanded for sentence. Prior to the sentence being handed down, The Irish Times published an article indicating that the national police force believed the plaintiff to be involved in a series of other crimes ranging from violent crime to fraud and drug smuggling. Finding that the article constituted contempt of court, the trial judge imposed a fine. The respondents appealed to the High Court, which stated a consultative case for the opinion of the Supreme Court. The questions on which the views of the Supreme Court were sought were:
(a) Can it be a contempt of court to publish an article in the terms of that complained of after a criminal trial has passed from the seisin of the jury and where the remainder of the hearing will take place before a judge sitting alone?
(b) Given the constitutional right to freedom of expression of the press, could the publication of the article complained of ever constitute a contempt of court when published after conviction and before sentence? (at 358)
It had been submitted that the application must fail in limine because the trial judge could not be affected by any publication but must, in accordance with the oath of office, confine himself only to evidence properly adduced before him. It was also submitted that if the applicant's contention was accepted it would, by analogy, no longer be possible to publish information about a convicted person between sentence and the hearing of an appeal, which could lead to the lengthy postponement of the publication of information.
In certain cases, publication in these circumstances could constitute a contempt of court.
The Court observed at the outset that the offence of contempt of court was created by common law to protect the administration of justice. Thus, contempt may exist in the interim between conviction and sentencing as at that time the process of the administration of justice is continuing. However, it stressed that given that a decision on the issues relating to an alleged contempt of court must find a balance between a variety of rights, namely between the due administration of justice and freedom of expression, the two questions posed should be amalgamated and considered as one:
Can it be a contempt of court to publish an article in the terms of that complained of after a criminal trial has passed from the seisin of the jury, where the remainder of the hearing will take place before a judge sitting alone, given the constitutional right to freedom of expression of the press, could the publication of the article complained of ever constitute a contempt of court when published after conviction and before sentence. (at 360)
The Court outlined the policy which has shaped the criminal contempt jurisdiction, in that regardless of the form in which it manifests itself, criminal contempt is regarded as necessitating punishment, given the consequences for public confidence in the administration of justice were it to go unpunished.
The policy which has shaped the criminal contempt of court jurisdiction is clear. Whichever form it takes - contempt in the face of the court, interference with witnesses, "scandalising" the court or breaches of the sub judice rule - criminal contempt has been regarded by the law as necessitating punishment, because, if it were to go unpunished, the consequences for public confidence in the administration of justice would be profound. (at 373)
While adverse publicity in the reporting of some crimes may represent an obstacle in the way of a fair trial, this is not invariably the case:
[T]he mere fact that there has been significant publicity does not necessarily mean that there has been such interference with the administration of justice that the trial of an offence will be unfair... it has been recognized that juries are robust and capable of hearing cases fairly even when there has been pre-trial publicity....(at 367)
Acknowledging the impartiality of the judiciary, the commitment to the balance favouring the right to a fair trial was underscored:
A judge, who has been trained in the law and who has made a declaration on taking office, must be capable of withstanding publicity potentially adverse to a trial. However, there still remains the other issues raised. If they, or any one of them, raised a real or serious risk that an accused would not receive a fair trial clearly the balance would be drawn in favour of the fair administration of justice. (at 367)
Affirming the central role of freedom of expression to democracy, the Court noted the degree of difficulty attendant on striking the right balance between competing fundamental rights, particularly where the matter concerns the public's perception of the judicial system:
Freedom of expression is not an absolute right under the Constitution, however it is a fundamental right of great importance in a democratic society. In striking a balance between that right of the freedom of expression and the administration of justice if there is a real risk of an unfair trial the balance should tip in favour of the administration of justice and the determination of a contempt of court. Also, if there is a doubt the balance should swing behind the protection of the administration of justice. However, if the matter of the perception of the administration of justice is the issue the situation is fraught with complexity. (at 370)
The decision as to whether the article was a contempt of court can only be made by the learned trial judge having regard to all the circumstances of the case. The balancing of interests required may be affected by matters including the burden of proof, mens rea and specific defences which were not argued before this court. Such issues may be important in the necessary reconciliation of the conflicting interests required by the trial judge. The full circumstances and defences should be raised before the learned trial judge to enable him to achieve the necessary balance.
Freedom of expression should prevail except to the extent necessary to protect the administration of justice:
Freedom of expression is undoubtedly a value of critical importance in a democratic society, but like every other right guaranteed, either expressly or by implication, by the Constitution it is not an absolute right. (at 381-382) ... There can also be no doubt that, in the area with which this case is concerned, i.e. the sub judice rule and that of "scandalising" the court, to give it the traditional, archaic description, the contempt of court jurisdiction should not be lightly invoked by the courts: the freedom of expression guaranteed by the Constitution should not be curtailed save to the extent necessitated in protecting the administration of justice. (at 374)
The Court also considered that while the judiciary, through their training and experience, may be better equipped to withstand the threat to their impartiality posed by an injurious article, there remains the possibility of prejudicial effects:
Judges no doubt are in a significantly different position from jurors when it comes to excluding potentially prejudicial material from their consideration of a case: their professional training and experience and the solemn declaration which they are required to make in public are powerful guarantees of their independence and impartiality. But they are also human and the law would be difficult to reconcile with common sense if it had to proceed on the basis that, unlike other people, they were incapable of being prejudiced in their views by material damaging to a particular litigant to which they had been unnecessarily exposed. I would not wish to venture into a field beyond the expertise of a judge, but even a rudimentary knowledge of psychology would suggest that a person conscientiously striving to reach a decision free from prejudice might be influenced at a subconscious level in his conclusions by material which he had made every effort to banish from his mind. (at 375)
Nonetheless, the mere discomfort that media reporting may cause to judges should not be treated as contempt of court:
... There are undoubtedly many cases which judges would feel happier deciding without a sense that public opinion - or, at all events, that sometimes elusive concept as reflected in the media - was leaning in a particular direction. But it would be extending the contempt of court jurisdiction to stigmatise as criminal comment in the media simply because it makes the judicial task less comfortable at times than judges would wish. (at 375-376)
Given the absence of an intention to interfere with the administration of justice on the part of the defendants, the offence of criminal contempt may not have been committed at all:
On any view, the circumstances of this case would clearly have called for the imposition of no more than a modest penalty and, for the reason I have suggested, the respondents might have been found innocent of any contempt. (at 380)
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