Case may show up weaknesses of contempt law

Mon, Jul 23, 2012, 01:00

ANALYSIS:The jailing of Seán Quinn jnr for contempt of court was not a punishment but an attempt to force compliance with court orders

IT IS CLEAR from some of the commentary about the committal to prison of Seán Quinn jnr and his cousin Peter Darragh Quinn (though the latter remains at large) that there is some confusion among the public about why they are in jail, especially when others involved in the banking collapse have not been before the courts.

But the Quinns have not been charged with any offence, still less convicted.

The orders to imprison Seán Quinn jnr and his cousin arose from civil actions resulting from Seán Quinn snr’s disastrous decision to borrow money from what was then Anglo Irish Bank in order to buy its shares. He sought to avoid repaying that money by putting €500 million in assets beyond the reach of the bank, which is now owned by the taxpayers. The High Court ordered the Quinns to return the assets.

Imprisonment for failure or refusal to comply with court orders is the weapon of last resort for the courts. The committal to prison of the Quinns involves a failure to comply with orders concerning an enormous amount of money, and is the highest-profile committal for contempt since the jailing of Liam Lawlor in 2001 and 2002 for refusing to co-operate with the Flood tribunal.

But they are not unique in being jailed for contempt of court.

Until recently, committal for contempt was usually used in the District Court for failure to pay a debt, including maintenance payments. However, this was recently found to be unconstitutional where the debtor was unable to pay, and the law was changed.

Usually, civil contempt of court committals were low-key affairs.

A Contempt of Court Act was enacted in the UK in 1981, but there is no such Act here, though the Law Reform Commission reported on the subject in 1994, where it recommended codifying the courts’ powers in legislation. That never happened, and the law remains largely judge-made, arising from the need for the courts to ensure their orders are implemented.

There are two kinds of contempt of court: criminal and civil. Criminal contempt involves contempt “in the fact of the court”, scandalising the court, interfering with the administration of justice, breaching the sub-judice rule, and so on. This can result in a person being committed to prison for contempt, and released when he or she “purges his contempt”, normally by apologising to the court.

Civil contempt, which arose in the Quinn case, involves defiance of a court order. Its purpose is coercive, not punitive, and the imprisonment is theoretically open-ended; the person can remain in prison until he or she “purges his contempt” by obeying the court order.

This explains why Seán Quinn snr is not in jail at present. Though Ms Justice Dunne said she would consider committals for all three, it would be difficult for the three to do much about the return of the assets if they were all in jail, and as the central figure in the Quinns’ business empire, the judge clearly feels Seán Quinn is in the best position to work for their return.

It has now emerged that the Quinns are claiming they are unable to get their property back from the people with whom they entrusted it, raising the question of just how long Seán Quinn jnr can be kept in prison, whether his father will be sent to join him, and whether the extradition of Peter Darragh Quinn will be sought, if necessary, so that he too can be committed to prison.

Last July, a Co Limerick farmer, Daniel Doherty, was jailed for contempt for refusing to obey a court order to keep away from a farm at Rathcahill, which he claimed was promised to him by bachelor farmers Matt and Eddie Roche, despite the absence of a will.

This was contested by members of the Roche family, and the court found the farm was their property.

Mr Doherty refused to purge his contempt by giving an undertaking to stay away from the farm, but was released last month by Judge Carroll Moran, who said he could not keep him in jail “indefinitely”.

While this is not a High Court ruling, and therefore not binding on other courts, it indicates that, if it appears imprisonment is not working to achieve the intended goal of forcing compliance with court orders, the courts will look for other solutions.

The Law Reform Commission recommended in 1994 a system under which the superior courts would have power to punish contempt of court by the imposition of a fine “including, where appropriate, an accruing fine. In order to be fully effective the fine might in some cases have to be large,” it said.

But what would happen if the person being fined refused to pay it – or is already bankrupt? The only alternatives are prison or the seizure of assets in default – if the assets can be found.

The Irish courts have not, so far, had to deal with prolonged and open defiance of their orders, which the law on contempt of court is intended to address. It may be that the Quinn case will show up the weaknesses in this judge-made law and force the Oireachtas to look again at the need to legislate in this area.

Oireachtas may be forced to look again at need to legislate in area of contempt of court

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