If you have been reading the papers, either in print or online, over the past few days, you may have come across articles about a Social Media Bill going before the Dáil. Why is there such a big focus on something which is still far away from becoming law? The Tribune is on hand to explain the basics behind it in a two-part series.
The Contempt of Court Bill 2017
The Bill at the heart of the matter is the Contempt of Court Bill 2017 (number 117 of 2017). It is a Private Members Bill from Josepha Madigan, a Fine Gael TD for the Dublin Rathdown constituency. Private Members Bill are often introduced much attention in the Oireachtas. Without government support, they are unlikely to ever become law.
This Bill is unusual for a number of reasons. Madigan practised as a solicitor before her career in politics, and wrote a book on Alternative Dispute Resolution. A quick look through it will tell you it appears to be well drafted. Madigan began to draft the Bill in question over the summer. She spoke to the Irish Independent at the time about death threats her husband and children had received on social media, alongside the level of abuse a politician is subjected to online.
The Bill is notable for proving a legislative definition for the civil and criminal offences of contempt of court. Civil and criminal contempt have been subject to much commentary. In Keegan v de Barra, the court distinguished between the pair. Criminal contempt was to punish an offender, whereas civil contempt was to force compliance with a court order. In DPP v Walsh, Chief Justice O’Higgins said that the purpose of criminal contempt was to discourage and prevent the repetition of conduct which, if became habitual, would be destructive of all justice. The action itself was upheld by the European Court of Human Rights in Sunday Times v UK.
Criminal contempt is rather rare. Students are responsible for one of the most recognisable criminal contempt cases in the twentieth century. In Morris v The Crown Court (1970), around twenty students involved in a protest in support of the Welsh language entered a London court, while a case was being heard. They handed out leaflets, sang songs, and started chants.
A judge imposed £50 fines on those who apologised, while the rest got three months in jail. The Court of Appeal held that the sentences were not excessive. The appeal was heard after their first week in prison. The judge agreed to let them out on the basis they remained on good behaviour in the following months. One of the judges in that case was the iconic Lord Denning. Known for his dissents, he reportedly had a lucky escape that same year, after a woman allegedly threw two books at him because of a verdict. He declined to hold her in contempt.
The Bill – Civil Contempt
Section 3(1) states that ‘civil contempt arises where there is a disobedience to an order of the court by a party to the proceedings, whether by actions or failures to act.’ Per section 3(2), ‘a person who has obtained an applicable court order may apply to the court for an order that the other party has failed to comply with the order.’
Section 3 (3) states that ‘a court must be satisfied in this application: (a) that the court order has been made in clear and unambiguous terms and is binding on the contemnor; (b) the contemnor has knowledge or proper notice of the terms of the court order being enforced; and (c) the contemnor has without reasonable excuse, intentionally failed to comply with the applicable court order.’
This means the court order must be both clear and unambiguous, and binding. The burden of proof is on the applicant, with the standard being beyond a reasonable doubt. This imposes the criminal standard of proof. A person having a ‘reasonable excuse’ for non-compliance is included as a defence.
Section 2(1) gives a wide definition of criminal contempt. It ‘consists in behaviour calculated to prejudice the due course of justice. This shall include, but is not limited to; contempt in the face of the court, scandalising the court, words written or spoken or acts calculated to prejudice the due course of justice, disruptive behaviour in court, disobedience to a Writ of habeas corpus by the person to whom it is directed, or failure to answer a subpoena.’
It includes the various categories of criminal contempt that have developed over time. A judge can deal with it summarily before the court, ‘where the conduct has occurred in the presence of the judge; and the judge considers that the conduct presents an immediate threat to the authority of the court or the integrity of the proceedings then in progress unless dealt with in a summary manner.’
A judge is immune from giving evidence in a contempt case where it is not dealt with summarily, but the court transcript, witness testimony, and other evidence is admissible. Other witnesses can be compelled to appear. Section 2(7) deals with the summary procedure, and follows basic fair procedures.
Section 12(1) notes that the ‘maximum sentence for contempt is life imprisonment and/or an unlimited fine.’ Plenty of offences carry this penalty, as a way to give a judge discretion as to the punishment imposed. A conviction from a District Court hearing has maximum penalties of ‘imprisonment for one year and/or a class A fine’, which follows the normal maximum punishments available to the court at that level. A costs order can be imposed on a person for the proceedings they disrupted. In reality, this would likely run to a far higher sum than a court imposed fine.
Part Two, in the next edition of the Tribune, will look at the potential impact of the Bill on social media, and on the reporting of ongoing court cases by the media.
Cian Carton – Business & Law Editor