O'Brien 'could face contempt charge'

 

JUDICIARY REMARKS:BUSINESSMAN DENIS O’Brien could be prosecuted for contempt of court over remarks he made about the judiciary on Tuesday, according to legal experts.

Mr O’Brien said he may have lost his legal challenges to the Moriarty tribunal because the judiciary put a “ring of steel” around Mr Justice Moriarty to protect him as they knew he was not “up to the job”.

He made further criticisms of Mr Justice Moriarty, the judiciary and members of the legal profession in an RTÉ radio interview yesterday.

Contempt of court is not defined by legislation, but is an offence created by common (judge-made) law to protect the administration of justice. It arises when a court order is defied, but can also arise if the integrity of members of the judiciary is impugned or the judiciary is brought into disrepute.

The offence, known as “scandalising the court” arose in a 1981 case, The State (DPP) -v- Walsh,where it was suggested a fair trial was impossible in the Special Criminal Court, according to John O’Dowd, lecturer in law in UCD.

It was described by the then chief justice, Mr Justice O’Higgins, thus: “Such contempt occurs when wild and baseless allegations of corruption or malpractice are made against a court so as to hold the judges up to the odium of the people as actors playing a sinister part in a caricature of justice”.

Mr O’Dowd said the offence had not been abolished, though it has fallen into disuse. It is a criminal offence, punishable by an unlimited fine or imprisonment, he said.

It would be for the DPP to prosecute, but this was very unlikely. While it would be open for a judge to take a case alleging contempt of court “it is not considered wise” for a judge to do so, he said. “There would be a bias issue if a judge acted on his or her own motion.”

In the Walsh case, Mr Justice O’Higgins also said the courts themselves, rather than a judge and jury, should deal with such matters summarily in order to protect their own independence and not place it in the hands of a jury.

Fianna Fáil leader Micheál Martin called on Mr O’Brien earlier this week to withdraw from attacking the judiciary and warned of the danger this represented to democracy.

Mr Martin said he was “worried about consistent and sustained attacks on Judge Moriarty himself and the extraordinary attack yesterday on the judiciary”.