Courts Service rapped for backdating of High Court order
Lay Litigant Kevin Tracey had a significant win in the Supreme Court when he succeeded in having a contempt of court order quashed after 12 years and 9 months. In the judgement delivered by O;Donnell J and supported by 3 colleagues including the Chief Justice it was found that he had not received fair procedures in the District Court. In his long struggle for justice there were many obstacles in his way. One of these was the Courts Service within whose walls someone backdated a Court order by nine months. This prevented him from appealing a High Court judgement within the permitted time limit. The long struggle for justice reminds me of the remark of a passing countryman to a mason called Mike who with my student brother was taking longer than expected to build build a hen shed: “Do you know, Mike, if every hen was as hard housed, a lot of them would shleep out”.
It’s not funny to recall in these days of homelessness, that many other lay litigants may be left literally sleeping out after the justice system in Ireland prolongs their agony in their efforts to obtain simple justice from that same justice system.
A landmark ruling in the Supreme Court has been welcomed by the The Irish Human Rights and Equality Commission and by Emily Logan, its chief Commissioner.
On Monday 25 February 2019 lay litigant Kevin Tracey was successful in his appeal when his conviction for contempt of court (May 2006) was finally quashed
The Court says Mr Tracey has many cases before the courts. He contends that he has been the subject of victimization by the legal system the origin of which he traces to a civil dispute with a neighbour who is a member of the judiciary. This was an essential background to the issue which arises in this case, the judgement states.
In the District Court on 31 May 2006, Mr Tracey was sentenced to seven days in prison for comments he made to the court. Later the case was heard in the High Court (McGovern J), 6 March 2008, where his efforts failed to have t the conviction quashed.
The Court also strongly criticizes the backdating of that High Court order by someone in the Courts Service. The backdating prevented Mr Tracey from appealing the judgement of McGovern J in the High Court and he later got permission from the Supreme Court to appeal.
No satisfactory explanation has been offered for this happening in the Courts Service. “The backdating of orders in this fashion is not acceptable in any circumstances, and indeed can give rise to much further unnecessary suspicion and contention,” the judgement states.
The Courts Service manages the courts. All litigants whether represented or not must rely on their assistance and expect them to carry out thieir duties in a professional and conscientious manner. For this reason alone the criticism from the highest court in the land is significant even though no sanctions have been applied.
The judgement is also significant in that it appears to change the rules governing contempt of court. These rules are long (covering over 4 foolscap pages); and unfortunately, at the time of writing the approved judgement has not been published on the Courts Service website.
The gist of the new rulings, as far as Mr Tracey is concerned, is that before a conviction for contempt can be obtained the person concerned should be warned and given the option of obtaining legal representation. The person must also be given a fair opportunity of defending themselves and the criminal standard of proof beyond reasonable doubt must apply.. Where the alleged contempt consists of allegations against a judge personally, another [different] judge must hear and determine the matter. In all cases there is a right to appeal.
Because some or all of these procedures were not adhered to in Mr Tracey’s case, his conviction was quashed.
The judgement is interesting in other ways. Firstly, in what it does not say. Mr Tracey had argued at length from European law, which since 2003 has become Irish law, that his conviction was invalid. In particular he cited the case of Kyprianou v Cyprus [December 2005], as did the Irish Human Rights Commission, in order to show bias in the District Court. The judgement bypasses the Kyprianou case in spite of its several similarities to the Tracey case and appears to arrive at a similar conclusion without invoking European law. The question of judicial bias was not addressed. This is disappointing, given the widespread belief, not just in Ireland, that judges will never find that any of their their peers may be biased. In this respect the Kyprianou verdict by the European Court of Human Rights (where the Cyprus judges were found to be biased) is a notable and praiseworthy exception
The second is the relative amount of respect shown to a lay litigant. In a culture where lay litigants are very often verbally lashed from the Bench for bringing frivolous and vexatious cases before it, it was encouraging to find a real degree of forbearance in the proceedings which preceded these. Therein a judgement by the Chief Justice allowed Mr Tracey to appeal despite the long delay of eight years, paying due regard to the special circumstances of the case including the backdating of the High Court Order and Mr Tracey’s serious illness in the intervening time. Even Judge O’Donnell’s remark in mentioning the Court's recourse to appointing an amicus curiae “I mean no discourtesy to him, [Mr Tracey] but it is necessary to record that both the submissions and papers submitted [by him] were somewhat diffuse” must sound like a lavish compliment in the ears of thousands of other lay litigants throughout Ireland.
This writer’s account of the proceedings -which is open to correction – can be seen below. Another report has been published in the Irish Independent by Shane Phelan, legal editor and can be found at: https://www.independent.ie/irish-news/courts/shane-phelan-quick-contempt-decision-by-judge-ruled-out-of-order-37855063.html
The Commission’s report can be found at:
The judgement recounts how, on 31 May 2006 in the District Court, Mr Tracey pleaded not guilty to a charge of “driving without due care and attention”. After entering his plea he then said he wanted to make a statement to the court. This request was refused but Mr Tracey persisted. He made reference to "six years of abuse orchestrated by one of your colleagues". He then made reference to the gardaí and stated that he had at least "twelve summonses, false summonses to court". When he repeated that he was handing in a statement, the judge ordered a garda to remove him from the court. In so doing the judgement states that the judge was acting within his jurisdiction.
However, as Mr Tracey was being removed, he said "You'll certainly hear about this, Judge". When, as it appears, the prosecuting garda was trying to pacify him, he said "How crooked! And you think you will get away with this? How crooked you are!" the judge called him back, told him he was holding him in contempt of court and asked if he had anything to say in regard to that. He replied "No." The subsequent warrant stated that he had accused the court of being corrupt. The transcript said that he had addressed the words to the garda but as the transcript was prepared by Owen Rice - an associate of Mr Tracey's - the court accepted the transcript only "as a broad guide to the relevant events, which are not in dispute". When Mr Tracey was detained, Owen Rice brought an immediate application to the High Court seeking an inquiry under Article 40. Herbert J refused this but granted leave to bring an application for judicial review, which leave he himself granted the following day, 1 June 2006.
Mr Tracey was released on bail.The judicial review application proceedings came before High Court Judge Brian McGovern who on 6 March 2008 dismissed the application - a decision that in effect revoked Mr Tracey’s bail and forced him to serve the balance of his sentence. This he did in Mountjoy jail.
“Mr Tracey always intended to appeal [against the High Court judgement] and at the time . . . appeal lay to the Supreme Court. However events took a further and very unfortunate turn. It appears now to be accepted and certainly was not challenged that the order of the High Court, which was a necessary basis for appeal, was perfected later, but backdated. The effect of the backdating was that, by the time Mr Tracey obtained the order, he was technically out of time to lodge an appeal. No satisfactory explanation has been offered for this.... [It] was entirely unsatisfactory, and particularly unfortunate, given what was by now Mr Tracey's own deep-seated suspicion of the legal system. it should be said clearly that the backdating of orders in this fashion is not acceptable in any circumstances, and indeed can give rise to much further unnecessary suspicion and contention, as this case shows".
The judgement relates how Mr Tracey, having received the perfected order too late for an appeal, sought consent from the opposing party for an extension of time but this consent was refused. Representing himself, he failed to bring a similar application to the Supreme Court “which would almost certainly have succeeded” for almost eight years. He brought it after that time when other appeals of his were being advanced. The appeal was by then largely moot but, “in the very unusual circumstances of this case and in part because of the unsatisfactory way in which the High Court order had been dealt with, this Court granted an extension of time to appeal on 10 February 2017 () IESC 7)”, the judgement states.Appeal limited to one Issue Only
Mr Tracey had appealed on several grounds, including subjective and objective bias on the part of Judge Mc Govern. However the Supreme Court directed that the sole issue to be considered on appeal was whether “the manner in which a finding of contempt in the face of the court was made against [Mr Tracey] breached his rights under the Irish Constitution, under the European Convention on Human Rights or unde European Union law.” - which was one ground of Mr. Tracey’s appeal. Because he is a lay litigant and the matter was so important the Court added the Human Rights and Equality Commission as a Notice Party. Their submissions were broadly supportive of Mr Tracey’s position.
The Court then summarizes the different procedures for maintaining order in a courtroom: on the one hand when it was a matter of discipline – as when a person had to be removed, and on the other hand when a person could be convicted and a punishment such as imprisonment imposed. In the latter case, the person concerned should be warned, told of the conduct that might constitute contempt, and given the option of a separate hearing, legal representation and a fair opportunity of defending themselves. Because Mr Tracey was not afforded such fair procedures on 31 May 2006, the order convicting him of contempt, although spent, was quashed by the Supreme Court.