Tuesday 21 May 2019

Shane Phelan: 'Quick contempt decision by judge ruled out of order'


Kevin Tracey had appealed a decision by Judge Aeneas McCarthy to jail him for seven days
for contempt. Picture: Courtpix
Kevin Tracey had appealed a decision by Judge Aeneas McCarthy to jail him for seven days for contempt. Picture: Courtpix
Shane Phelan

Shane Phelan

Judges will have to adopt elaborate procedures in future when considering whether unruly defendants or litigants are in contempt of court.

In a significant ruling, the Supreme Court clarified how disruptive behaviour and contempt should be dealt with.

The ruling is likely to slow down the process through which a judge finds someone in contempt. It will place an onus on judges to follow a list of procedures, such as giving consideration to holding a separate contempt hearing, as well as providing the defendant with the opportunity to secure a lawyer if they are not represented and to seek legal aid if they can't afford one.

If the alleged contempt consists of allegations against the judge, it will be necessary for another member of the judiciary to hear the matter.

The ruling has been welcomed by the Irish Human Rights and Equality Commission (IHREC), which exercised its function as "a friend of the court" to make a submission.

But it remains to be seen how it will be received, particularly in the District Court, where judges already have heavy case loads to deal with.

Contempt can take a number of forms, such as contempt in the face of the court, where a person deliberately disrupts proceedings, and scandalising the court, where untrue allegations are made about the court or the judge.

The Supreme Court ruling arose from an appeal by Kevin Tracey against a decision by Judge Aeneas McCarthy to jail him for seven days for contempt. Mr Tracey contends he is the subject of victimisation by the legal system, which he traces back to a dispute with a neighbour who was a judge.

In the Supreme Court ruling, Mr Justice Donal O'Donnell said Mr Tracey had made "many complaints" and was "by now well known to the Irish courts".

In May 2006 he appeared in Judge McCarthy's court on a charge of driving without due care and attention.

The hearing was to ascertain how he intended to plead and to set a date for a hearing. But Mr Tracey said he wished to make a statement to the court.

Judge McCarthy refused to allow this, but Mr Tracey persisted, saying he had endured "six years of abuse… orchestrated by one of your colleagues".

The judge asked a garda to remove him from the court, but matters took a further turn when Mr Tracey said: "How crooked. And you think you will get away with this. How crooked you are."

Mr Tracey would claim this comment was directed at the garda rather than the judge.

But the judge requested he be brought back and told him he was being held in contempt.

When Mr Tracey said he had nothing to say in response, the judge sentenced him to seven days in jail.

IHREC, in its submission, argued Mr Tracey was not provided with adequate time to consider and react appropriately, either to defend himself, apologise or take other action.

Quashing Judge McCarthy's decision, Mr Justice O'Donnell said in the circumstances, more elaborate procedures were called for.

"It may be that if such a hearing was accorded to Mr Tracey, the outcome may have been the same, or indeed worse for him, but the issue raised here is the fundamental fairness of the procedures which were followed, and in my view he was entitled to have a separate hearing, the possibility of obtaining legal assistance, and, if appropriate, legal aid," Mr Justice O'Donnell found.

Irish Independent

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