The law on contempt of court is becoming a “minefield” that “threatens to undermine the administration of justice” and an overhaul of it is urgent and “long overdue”, a Supreme Court judge has said.
Court proceedings without the respect of those involved “may descend into farce” and, without enforcement, the law, “ultimately of practical impact, withers into a dead letter”, Mr Justice Peter Charleton said. “The time for restatement and codification of what has become a legal maze is long overdue.”
The comments, made in an academic article, come in the wake of several contempt cases exposing limitations of the contempt jurisdiction, including that of schoolteacher Enoch Burke, who has spent more than 300 days in Mountjoy Prison for contempt of court orders restraining his attendance at Wilson’s Hospital school in Co Westmeath.
Published under the headline, Try something else: contempt and confusion in the latest edition of the Irish Judicial Studies Journal, the article, co-written by Mr Justice Charleton and barrister Victoria O’Connor, a judicial assistant to the Supreme Court, says contempt has been led into “a thicket of contradictory and uncertain rules” and there is urgent need for “full statutory restatement and reform”.
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The issue that has plagued the development of contempt law is the distinction between criminal and civil contempt and the line between the two has become “increasingly blurred”, they say.
Criminal contempt is contempt in the face of the court in a criminal or civil trial and civil contempt concerns failure to obey a court order to do, or to desist from doing, something.
The authors say the “irony” is that, through decisions by judges, the power of the contempt jurisdiction has arguably been weakened to the extent some may be tempted to exploit “humane developments” in the law as a retreat.
In the administration of justice, the key objectives of a fair hearing and an enforceable order “depend markedly” on the ability “to punish those who make a mockery of the court process, either by targeted ridicule or by treating a court order as a piece of paper”, the article stresses.
Following two papers about reforming contempt law by the Law Reform Commission, and one lapsed Private Members’ Bill before Seanad Éireann, the situation concerning the law on contempt is “increasingly difficult to classify as satisfactory”. Contempt law has not developed in such a way as to result in “workable legal norms” and is “becoming a minefield that threatens to undermine the administration of justice itself”.
While the courts must do their level best to discover the truth of a case, a point may be reached where litigants may shut themselves out from a defence through conduct which fundamentally abuses the nature of the court process, the authors state.
It used to be that failing to do what a court ordered resulted in imprisonment, fine or sequestration [seizing and holding assets] to compel a litigant to obey a court order, the authors said.
However, since the Rossport Five case, involving the jailing of five people over noncompliance with an injunction restraining interference with the construction of Shell’s Corrib gas pipeline in Co Mayo, what may have once been a “bright line” between prosecution and compulsion had “dissolved”.
The High Court released the five after 94 days without them purging their contempt after saying imprisonment for civil contempt is primarily coercive and punitive imprisonment should only be used in cases where there has been serious misconduct in order to preserve the court’s authority
Imprisonment, the article says, “smacks of criminal punishment”, which is not the point of civil contempt, and is a “serious and dangerous” remedy. Why not first consider freezing remedies or other financially punitive measures, the authors ask.
There may be circumstances where no form of coercion, no matter how long a stay in prison, is going to induce a civil contemnor to change their mind, they note. The court may decide to release the contemnor after a significant period even though the order has still not been obeyed. While some courts reason the sanction has proved to be ineffective in securing compliance, it may also be that proportion in punishment has been achieved.
The longest ever term for contempt arose in a US case where a man spent 14 years in prison over alleged contempt of court orders made in a dispute with his ex-wife concerning his alleged disposal of about $2.5 million in marital assets, the authors noted.
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