A MATTER in which the Editor of The Irish Times and a staff journalist are appealing a Circuit Court finding of contempt of court and a £5,000 fine was adjourned yesterday in the Supreme Court.
The contempt of court case was brought by Eamon Kelly, who was found guilty on May 15th, 1993, after a three-week trial by a jury, of possession of £500,000 worth of cocaine for supply and unlawful possession of the cocaine.
Judge Cyril Kelly remanded him in custody for sentence on May 27th, when he was jailed for 14 years. The article complained of was written by Mr Paul O'Neill and published on May 17th, 1993, in The Irish Times. Judge Kelly found that The Irish Times was in contempt of court and imposed a fine of £5,000.
The appeal by the Editor of The Irish Times, Mr Conor Brady, and Mr O'Neill concerns two points. The first question to be considered by the Supreme Court is that, given a previous Supreme Court decision in a case concerning Ma gill magazine, was there any such thing as contempt of court where the only person who could be affected was the trial judge who was considering the sentence?
The second point was that, given the constitutional right to freedom of speech and freedom of expression, did there remain any room for the offence of contempt of court in this case?
Yesterday Mr Justice O'Flaherty, sitting with Mr Justice Barrington and Mr Justice Murphy, said the case concerned an important constitutional point and perhaps it could be heard by a court of three judges, but it would be better that it should be tried by a court of five.
Mr Justice Barrington said Mr Rex Mackey SC, who was appearing for Kelly, had in the Ma gill case some years ago presented the other side of the argument very successfully and persuasively before him when he was a High Court judge. He had found in Mr. Mackey's favour, but the decision was overruled by the Supreme Court.
The judge said now he found himself in a slightly uncomfortable position if that decision of the Supreme Court was to be looked at again. Mr Mackey said he recalled the case very vividly. Mr Justice O'Flaherty said they would direct that there should be written submissions.
Mr John Gordon SC, for The Irish Times, said they had prepared a compendium of authorities and they would prepare submissions. Mr Justice O'Flaherty said these should be written submissions.
Mr Gordon said another important case was being taken by The Irish Times and other newspapers against Judge Anthony Murphy in Cork Circuit Court, who banned day-to-day coverage of a drugs trial. It was an appeal against a judicial review hearing arising out of the trial. It was not a contempt of court case, but it was a freedom of the press case, a freedom of expression case.
That case was in for mention in the Supreme Court on April 21st to fix a date for a court of five judges for sometime later in the year.
Mr Justice O'Flaherty said he would also put this case in for mention on April 21st and in the meantime Mr Gordon should make as much progress as he could.
Mr Mackey said he was not quite clear about one matter. He was sorry to see that Mr Justice Barrington, having given a very important decision in his favour in the Ma gill case, was disqualifying himself from this case.
Mr Justice O'Flaherty said Mr Justice Barrington had not done that. He had said he would not necessarily need to disqualify himself in a court of five judges; Mr Justice Barrington said in a court of three he would feel uncomfortable.
Mr Justice O'Flaherty said Mr Michael O'Higgins, counsel for Kelly, had made written submissions and everything he did was thorough and far-reaching, but this time they might need to be elaborated a bit.
The judge said Mr Gordon had said he would now respond with a suet of submissions.