The Supreme Court yesterday reserved judgment on a challenge by The Irish Times to a decision that an article about a Dublin criminal, Eamon Kelly, published after his conviction on drugs charges but before his sentence, was a contempt of court.
Kelly (50), of Furry Park Road, Dublin, was convicted on May 15th, 1993, of having £500,000 worth of cocaine in his possession for supply in September 1992. On May 27th, 1993, he was jailed for 14 years. A similar sentence was imposed after a retrial and Kelly remains in prison.
The article about which Kelly complains was published in The Irish Times on May 17th, 1993, two days after Kelly's conviction and 10 days before he was sentenced. It was headlined "Gardai believe Kelly was involved in other major crimes".
At Dublin Circuit Criminal Court, Judge Cyril Kelly, while finding that he, as trial judge, was incorruptible, decided the article was a contempt and imposed a £5,000 fine on its author, Paul O'Neill, and a similar fine on the editor of The Irish Times, Mr Conor Brady.
That finding was appealed to the High Court, which asked the Supreme Court to determine two points arising. The matter was heard by a Supreme Court which included the former judge, Mr Hugh O'Flaherty, last February, but judgment was not delivered before his resignation and the matter had to be reheard.
The Supreme Court is asked to decide (1) whether it can be a contempt of court to publish the article complained of after a criminal trial has passed from a jury and where the remainder of the hearing will take place before a judge sitting alone; and (2) whether, given the constitutional right of freedom of expression of the press, the publication of the article complained of could ever constitute a contempt of court when it was published after conviction and before sentencing.
In court yesterday, Mr Richard Nesbitt SC, for The Irish Times, submitted the answer to question one was No and, in that event, question two did not arise. If it did, the answer was also No. The test for contempt lay in whether there was a serious risk of interference with the administration of justice.
Mr Brady and Mr O'Neill had, in affidavits, rejected the claims that they were, or were intended to be, contemptuous of the court. In his affidavit Mr Brady said he, The Irish Times and Mr O'Neill understood the proceedings had passed from the hands of the jury and believed themselves free to comment upon what they believed to be a matter of public importance.
The court should determine whether it was contempt to publish an article in such terms as the article complained of, Mr Nesbitt said. He could say in principle that articles like that could amount to contempt but because the matter related to this particular article and there was no risk of interfering with the court process, the answer to the first question must be No.
Counsel said a demand for a particular sentence in a case could amount to contempt but in this case this was simply an article imparting information about Kelly. It was not capable of being contempt because the matter had passed from the jury to the judge for sentence and the courts had held judges were incorruptible. Mr Rex Mackey SC, for Kelly, said contempt of court was a misdemeanour for which intent had to be established. Intent could be inferred even if disavowed.
There was no point to the article other than to bring before the court in an ex parte manner the type of person that Kelly was for the purpose of punishing him for his activities.
Mr Michael L. O'Higgins, also for Kelly, said The Irish Times had no more rights than a citizen. The newspaper had the right to express its views and put information in the public domain; Kelly had the right to a fair trial and the corollary to that was a right to a fair sentence hearing.
The question was whether The Irish Times was entitled to put this information into the public domain in circumstances where it could be presumed to be read by the sentencing judge who plainly saw it as an attempt to interfere with the administration of justice and had fined the newspaper.
While the judge said he was not affected and the jurisprudence said judges were incorruptible, the matter was not cut and dried. In this case, Kelly was jailed for 14 years, which was then the highest sentence for such an offence in the State's history.
The public was sophisticated and well able to infer from reading such an article that what was being said was that the person should get a very long sentence.
