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Explainer: Contempt of court and the potential for an indefinite prison term

Ireland’s contempt of court laws are derived from the ancient Common Law catalogue of past case law.

CONTEMPT OF COURT has hit the headlines this week as a teacher was at the centre of a breach of an order by a High Court Judge.

Enoch Burke appeared before court on Wednesday, refusing to purge his contempt and comply with the temporary injunction imposed by the order. As a result, he was returned to Mountjoy Prison. 

The events have led to international coverage – and also many questions about how the Irish system operates. 

The law governing contempt is complex and multi-layered but it comes from the ancient system of Common Law. 

Common Law is essentially a body of various laws derived from the judgments of countless judges over centuries of judicial activity. 

Ireland has two systems – statute which includes various Acts passed by the Oireachtas and Common Law under which our rules on contempt rest. 

The concept of contempt is multi-faceted but essentially breaks down into criminal and civil. 

Criminal contempt is where the person disrupts a sitting court, makes false allegations against a judge or where someone publishes details of a court case that could prejudice a fair hearing.   

An offence of criminal contempt is committed when a person acts in a disobedient manner which interferes with judicial decision making or the course of a trial. 

Civil contempt is committed when someone refuses to abide by an order or injunction imposed on them by a judge in non-criminal proceedings.  

In the case of Enoch Burke the contempt was of the civil variety – he was subject of a High Court order, an injunction to not attend the school where he was employed. 

He did not comply with that injunction and so was found to be in contempt by the judge who made that order. 

Compel

Dr Fiona Donson, a senior lecturer at the Law School in University College Cork said civil contempt is designed to compel the person to cooperate with the system.

“Civil contempt is coercive, not punitive. It’s not a punishment, it’s to force someone to abide by a court order. So this is where someone has been subjected to an order, and they refuse to follow it.

“It’s quite specific that they say we’re not punishing someone, we want someone to comply,” she said. 

Donson said that it is rare for such injunctions to result in imprisonment. 

“The idea is, the court issues an order – the courts have to have powers to make someone abide by those orders and for the most part people do because they’re afraid of the courts or whatever.

“But just in case, the court must have powers to deal with someone not willing to listen to them.”

This is why, on a regular basis, the person is brought back to court and given an opportunity to “purge” their contempt. 

A well-known example of this was the Rossport Five from Mayo who were imprisoned for 94 days for defying a court order to not protest against the works carried out by Shell in County Mayo in 2005.

That imprisonment of the men, brothers Philip and Vincent McGrath, Micheál Ó Seighín, Willie Corduff and Brendan Philbin ended when lawyers for the company decided that there was no prospect of works at the site. 

Another well-known contempt imprisonment was that of anti-war protestor Margaretta Darcy who refused to sign a court undertaking to stay away from Shannon Airport.  

In a 2016 Consultation Paper on Contempt of Court, the Law Reform Commission considered that it was “beyond argument” that there should be some element of coercion in the enforcement of orders of the court.

The fact that a judge can place someone in prison to achieve this is, on the face of it, a draconian measure. 

Donson said: “There’s a tension, of course. If the court doesn’t have powers to try and exert, or impose on them; if the court doesn’t do anything about that, then that undermines the authority of the court. 

“Equally, sending someone to prison is a very extreme sanction and, of course, it’s not like someone is sent to prison for a limited period of time, this is an open-ended process, and they can also be subject to additional financial penalties to try and focus the mind even more.

“Any examination of those contempt processes – there are obligations to actually be careful, it might be that we would want these kinds of rules put down more clearly in legislation.

“There has been an attempt to reform the law. The Law Reform Commission did write a report in 1994 and there has since, in recent years, an attempt to pass legislation.”

The Supreme Court has examined contempt in the Irish Bank Resolution Corp Ltd v Quinn and Others – it involved the long-running court battle between Anglo Irish Bank, members of the Quinn family and a number of other people. 

The case was centred around the imprisonment of Sean Quinn Junior for contempt – on that occasion he was sentenced to a “definitive, punitive sentence” for past refusal to comply with an order but was also give an indefinite committal to imprisonment to coerce the accused to comply in the future.  

Amorphous 

The Law Reform report drew attention to the Supreme Court’s concerns that the current contempt law was “amorphous” – lacking definition.

The Supreme Court held that, in the circumstances, the definite sentence was justified but should not have been combined with the indefinite coercive committal.

The Law Reform report found: “Apart from the blurred distinction between criminal and civil contempt, the current law creates the difficulty that a person committed to prison for civil contempt may be deprived of liberty without the procedures that would apply in a criminal trial.

“Further difficulties arise because the law of contempt of court is almost entirely common law, so that there are no statutory rules setting out precisely what that law is. As a result, the law is open to the challenge that it is unclear and difficult to understand.”

The Rule of Law, an ethereal concept which the courts’ and legal system uses as a guide in how it conducts its business, suggests that the law must be clear and concise, lacking arbitrary decision making and equitably applied to all. 

Whether or not the current contempt apparatus is in keeping with that concept has already been tested as seen above in the Quinn judgement and in a number of other cases.

Regardless of such academic debates on the merits of how contempt is addressed in Irish courts, Enoch Burke will soon find himself back before the High Court.

These repeated visits to Mr Justice Max Barrett and his detention in Mountjoy will only end when Burke agrees to abide by the order or if the sides involved find a way, agreeable to each position, to end it.  

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