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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Jordan, R. v [2024] EWCA Crim 229 (12 March 2024) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2024/229.html Cite as: [2024] WLR(D) 120, [2024] EWCA Crim 229, [2024] 2 Cr App R 1, [2024] 4 WLR 30, [2024] Crim LR 474 |
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ON APPEAL FROM THE CROWN COURT AT INNER LONDON
HHJ Reid
S20230094
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE WARBY
and
MR JUSTICE BOURNE
____________________
REX |
Respondent |
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- and - |
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JOHN JORDAN |
Appellant |
____________________
Louis Mably KC (instructed by Crown Prosecution Service) for the Respondent
Hearing date : 24 January 2024
____________________
Crown Copyright ©
Dame Victoria Sharp, P:
The Crown Court proceedings
[1] It is alleged that on 30 March 2023 Mr Jordan was in the park which backs onto the Inner London Crown Court. This was at around 11am. He was playing amplified music whilst sitting on a bench through a megaphone which was pointed at the court.
[2] I noticed the music whilst Mr Till, the 4th defendant in my current trial, was giving his evidence in chief. After it had concluded I asked the jury to withdraw from court to see if Mr Till was being distracted by it. As the jury were leaving one of them complained to my usher about the noise from the music. It was clearly distracting them.
[3] I rose and went to a window of the court where I observed Mr Jordan as set out above. The music was very loud in the room I was in despite the windows being shut.
[4] Because of the disruption to the court proceedings and the importance of ensuring the jury were able to concentrate undistracted on Mr Till's evidence I ordered the arrest of Mr Jordan, whose name at that time I was unaware of.
[5] Mr Jordan was brought into court at some point after midday. I went through the procedure in CPR 48(5). He indicated he would wish to receive legal advice and confirmed he would wish to be represented by Hodge Jones Allen if possible. I contacted Raj Chada via email and he has arranged representation for Mr Jordan.
[6] I ordered Mr Jordan's temporary detention to seek to ensure there was no further disruption of the Court today.
[7] As well as disrupting my court, court 4, the music was disrupting court 3 and caused the windows of that court to have to be shut to lessen the impact of the noise.
[8] It is suggested that Mr Jordan has committed a contempt of court
1) By playing amplified music directed at the Court which disrupted court proceedings whilst a defendant was giving their evidence
2) Intending thereby to be heard in court and thereby disrupt the sitting of the Court
[9] In doing so he
1) Caused a defendant's evidence to be interrupted so the disruption could be dealt with
2) Caused distraction to a jury.
Q. Did you intend that the music would be heard in the courtroom?
A. I wasn't sure if it would be or not.
Q. Did you hope that it would be heard in the courtroom?
A. Not necessarily. It's nice when they can hear it when they're coming out. Usually that's when they can hear it, when the doors are open, so on their way out.
Q. If the court had heard it – so, thinking what was in your mind as you were going into the park, and then putting the music on, and then keeping on for a period of time - if the court had heard it, what did you hope the court would do about it?
A. Enjoy the music, I suppose, have a dance, have a think, realise that there's people outside watching them.
No, I didn't think it would be disruptive. As I say, I work in a call centre: you hear music all the time. I work in shops: you hear music all the time. I don't see that as necessarily disruptive.
The grounds of appeal
(1) Seriousness. It is argued that the appellant's conduct did not represent a serious enough interference with the administration of justice to amount to contempt, and that the judge erred in finding that it was.
(2) Specific intent. It is argued that the judge's factual conclusions on intent are legally essential to his finding that the appellant is liable for contempt but should be set aside as unsafe because of unfairness in the procedure that led to them.
(3) Fairness. The proceedings are said to have fallen short of the minimum standards of fairness prescribed by the common law and the Convention. The grounds complain that the judge acted with undue haste, in a way that needlessly compromised the appellant's fair trial rights. Mr Waterman has argued, further, that the nature of the case and the judge's decision to deal with the matter himself brought his impartiality into question.
(4) Incompatibility. It is said that in "showing solidarity" and playing music outside the court the appellant was exercising the fundamental human rights of freedom of expression and assembly protected by articles 10 and 11 of the Convention. The judge should have conducted a fact-specific proportionality assessment. This would have led him to conclude that summary proceedings for contempt were disproportionate or that the appellant's conduct was not a contempt.
(5) Excessive penalty. The imposition of a custodial penalty is said to have been an excessive response to peaceful protest.
The legal context
Contempt in the face of the court
Procedure
Contempt of court by obstruction, disruption, etc
Initial procedure on obstruction, disruption, etc
48.5. –
(1) This rule applies where the court observes …
(a) in the … Crown Court, obstructive, disruptive … conduct, in the courtroom or in its vicinity, or otherwise immediately affecting the proceedings; ….. . .
(2) Unless the respondent's behaviour makes it impracticable to do so, the court must –
(a) explain, in terms the respondent can understand (with help, if necessary)_
(i) the conduct that is in question,
(ii) that the court can impose imprisonment, or a fine, or both, for such conduct,
(iii) (where relevant) that the court has power to order the respondent's immediate temporary detention, if in the court's opinion that is required,
(iv) that the respondent may explain the conduct,
(v) that the respondent may apologise, if he or she so wishes, and that this may persuade the court to take no further action, and
(vi) that the respondent may take legal advice; and
(b) allow the respondent a reasonable opportunity to reflect, take advice, explain and, if he or she so wishes, apologise.
(3) The court may then_
(a) take no further action in respect of that conduct;
(b) inquire into the conduct there and then; or
(c) postpone that inquiry . . .
…
Postponement of inquiry
48.7
(1) This rule applies where the … Crown Court postpones the inquiry.
(2) The court must arrange for the preparation of a written statement containing such particulars of the conduct in question as to make clear what the respondent appears to have done.
(3) The court officer must serve on the respondent_ (a) that written statement; …
Procedure on inquiry
48.8 –
(1) At an inquiry, the court must-
(a) ensure that the respondent understands (with help, if necessary) what is alleged, if the inquiry has been postponed from a previous occasion;
(b) explain what the procedure at the inquiry will be; and
(c) ask whether the respondent admits the conduct in question.
(2) If the respondent admits the conduct, the court need not receive evidence.
(3) If the respondent does not admit the conduct, the court must consider_
(a) any statement served under rule 48.7;
(b) any other evidence of the conduct;
(c) any evidence introduced by the respondent; and
(d) any representations by the respondent about the conduct.
(4) If the respondent admits the conduct, or the court finds it proved, the court must_
(a) before imposing any punishment for contempt of court, give the respondent an opportunity to make representations relevant to punishment;
(b) explain, in terms the respondent can understand (with help, if necessary)
(i) the reasons for its decision, including its findings of fact, and
(ii) the punishment it imposes, and its effect; …
(5) The court that conducts an inquiry_
(a) need not include the same member or members as the court that observed the conduct; but
(b) may do so, unless that would be unfair to the respondent.
Human rights
Analysis
(1) Conduct: seriousness
(2) State of mind: specific intent
The intent required cannot depend on the foresight, knowledge or understanding which the ignorant or foolish might have of the ways in which his acts risk or actually do interfere with the administration of justice. The ignorant and foolish, who are unaware of the law or who read prohibitory notices but do not understand their purpose, and do not realise the risks which their acts may create for the trial or other court process, and who may be right when they say that the risk or the actual harm was not what they ever intended, could not be dealt with at all for contempt in the face of the court. Yet they may cause the most serious harm. A defence that the contemnor is not guilty because he did not realise what could happen, and intended no interference, would put the court proceedings at greater risk the more ill-informed the contemnor was prepared to say he was, or actually was. The power of the court to react swiftly to acts of this sort, which risk interference with the administration of justice, cannot be dependent on any further specific intent to interfere with the course of justice, without creating a serious risk of neutering the court in the exercise of its powers when it may need them the most.
We find no authority, still less any support, for the proposition that in order to prove a contempt it must be proved that the alleged contemnor intended to disrupt the proceedings. On the contrary, the description of the nature of a contempt given by Lawton LJ in Balogh at p 93 demonstrates the opposite.
We agree. The present case is indistinguishable on its facts.
(3) Fairness
(2) As long as the contemnor had a fair trial and the order has been made on valid grounds the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside except in so far as the interests of justice require this to be done.
(4) Penalty
(5) Freedom of speech and assembly
Summary of conclusions
(1) The judge personally observed disruption to proceedings in his courtroom caused by loud noise from outside. He became aware that the court next door had also suffered disruption. He saw and heard where the disruption was coming from and identified the appellant as its likely source.
(2) This was an interference with the administration of justice that was serious enough to justify proceedings for contempt. The judge was duty bound to take some action. He was entitled to deal with the matter himself by bringing the appellant into court and embarking on a summary process.
(3) The procedure the judge adopted complied with the requirements of fairness both at common law and under the Convention. There is no reasonable objective basis on which to question his impartiality.
(4) The judge was entitled to find the facts as he did. The actus reus was not in dispute. The appellant's conduct was plainly deliberate. A finding of specific intent was legally superfluous but in any event the judge's conclusions on that issue are unassailable.
(5) On the judge's findings the custody threshold was crossed. The period of committal was short and cannot be criticised. No complaint is made of the decision to suspend which was merciful. The conditions were legitimate. The judge was entitled to find it likely that unless restrained the appellant would engage in further disruption. Taken overall, the penalty imposed was suitably tailored to the appellant's past behaviour and the threat he posed and was just and proportionate.
(6) The proceedings were compatible with articles 10 and 11 of the Convention. We do not think they restricted with the appellant's freedom of assembly and we doubt they interfered with his right to freedom of expression. Assuming however that they did, the necessity and proportionality of the findings of contempt is sufficiently guaranteed by the law of contempt itself. It was therefore unnecessary for the judge to conduct a fact-specific proportionality assessment. Such an assessment would in any event have concluded that the measures taken were proportionate and justified. The penalty imposed also satisfies that test.