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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Yaxley-Lennon (aka Tommy Robinson), Re [2018] EWCA Crim 1856 (01 August 2018) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2018/1856.html Cite as: [2018] 2 Cr App R 30, [2019] 1 All ER 594, [2018] EWCA Crim 1856, [2018] WLR(D) 503, [2018] 1 WLR 5400, [2018] WLR 5400 |
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201802867 C4, 201802865 C4 & 201802864 C4 |
ON APPEAL FROM CROWN COURT AT CANTERBURY
AND CROWN COURT AT LEEDS
Her Honour Judge Norton and His Honour Judge Marson QC
S20170102 & S20180448
Strand, London, WC2A 2LL |
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B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
THE HONOURABLE MR JUSTICE TURNER
and
THE HONOURABLE MRS JUSTICE MCGOWAN
____________________
IN RE: |
||
STEPHEN ![]() (aka ![]() |
Appellant |
____________________
Louis Mably QC as Advocate to the Court
Hearing dates: 18 July 2018
____________________
Crown Copyright ©
The Lord Burnett of Maldon CJ:
The issues on the findings of committal
The Facts
Canterbury Crown Court
Leeds Crown Court
"Since it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in these proceedings, the publication of any report of these proceedings shall be postponed until after the conclusion of this trial and all related trials."
"This morning, well knowing that the jury in this trial were in retirement and well knowing that there was a prohibition on publication because you referred to it in your video, you stood outside this building where jurors pass in order to get into it and defendants arrive. Over a prolonged period, because this is a long video, you are referring to this case, the previous case and to the subsequent case and, whilst I accept that there are on a number of occasions times when you refer to the defendants being not guilty until the jury say so, the vast majority of what you were saying, particularly at the beginning at the part I saw, was reference to cases like this, to Asian men, to the grooming of 11-year-old girls and the number of cases like this. No one could possibly conclude that that was likely to be anything other than highly prejudicial to the defendants in the present trial. …
If the jurors in my present trial get to know of this video, I will no doubt be faced with an application to discharge the jury."
The Law
Contempt proceedings initiated by the court
"In my judgment this summary and draconian jurisdiction should only be used for the purpose of ensuring that a trial in progress or about to start can be brought to a proper and dignified end without disturbance and with a fair chance of a just verdict or judgment."
Contempt under section 1 and 2 of the Contempt of Court Act 1981
"1 The strict liability rule.
In this Act "the strict liability rule" means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.
2 Limitation of scope of strict liability.
(1) The strict liability rule applies only in relation to publications, and for this purpose "publication" includes any speech, writing, programme included in a cable programme service or other communication in whatever form, which is addressed to the public at large or any section of the public.
(2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced."
"Consent required for institution of proceedings
7. Proceedings for a contempt of court under the strict liability rule (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney General or on the motion of a court having jurisdiction to deal with it."
Conduct calculated to interfere with the course of justice
Section 41 of the Criminal Justice Act 1925
"Prohibition on taking photographs, &c., in court.
(1) No person shall—
(a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or
(b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof;
and if any person acts in contravention of this section he shall, on summary conviction, be liable in respect of each offence to a fine…"
The penalty on summary conviction is a fine not exceeding level 3 on the standard scale.
Postponement orders under section 4(2) of the Contempt of Court Act 1981
"Contemporary reports of proceedings.
(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.
(2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.
Procedure
"CONTEMPT OF COURT BY OBSTRUCTION, DISRUPTION, ETC.
Initial procedure on obstruction, disruption, etc.
48.5.(1) This rule applies where the court observes, or someone reports to the court—
(a) in the Court of Appeal or the Crown Court, obstructive, disruptive, insulting or intimidating conduct, in the courtroom or in its vicinity, or otherwise immediately affecting the proceedings;
(b) in the Crown Court, a contravention of—
…(e) any …conduct with which the court can deal as, or as if it were, a criminal contempt of court…"
(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) enquire into the conduct there and then; or
(c) postpone that enquiry…"
Postponement of enquiry
48.7.(1) This rule applies where the Court of Appeal or the Crown Court postpones the enquiry.
(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;
(b) notice of where and when the postponed enquiry will take place; and
(c) a notice that—
(i) reminds the respondent that the court can impose imprisonment, or a fine, or both, for contempt of court, and(ii) warns the respondent that the court may pursue the postponed enquiry in the respondent's absence, if the respondent does not attend.
Procedure on enquiry
48.8.(1) At an enquiry, the court must—
(a) ensure that the respondent understands (with help, if necessary) what is alleged, if the enquiry has been postponed from a previous occasion;
(b) explain what the procedure at the enquiry 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; and
(c) ...
(5) The court that conducts an enquiry—
(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."
"In all contempt cases, justice requires the court to take account of the interests of at least three categories of person, namely, (a) the contemnor (b) the 'victim' of the contempt and (c) other users of the court for whom the maintenance of the authority of the court is of supreme importance. The interests of the alleged contemnor require that he should have the right to be informed of the charges which he has to meet, to be advised and represented if he so wishes (subject to his being eligible for legal aid or otherwise able to finance his defence), to be given a full and fair opportunity of meeting those charges and, if found guilty of contempt of court, to be informed in sufficiently clear terms of what has been found against him. In all these cases the court has been concerned to ensure that these fundamental requirements are met in the way in which, particularly in the case of the county courts, they are intended to be and should be met. However, we have tended to overlook the fact that they may in some circumstance be met in other ways. Whilst this court should always be quick to identify and condemn any departure from the proper procedures, the interests of the victim and of maintaining the authority of the courts require that in deciding what use to make of its powers under section 13(3) of the Act of 1960, this court should ask itself whether, notwithstanding such a departure, the contemnor has suffered any injustice. It does not follow that he has. Nor does it follow that the proper course is to quash the order. If he has not suffered any injustice, the committal order should stand, subject if necessary, to variation of the order to take account of any technical or procedural defects. In other cases it may be possible to do justice between the parties by exercising the court's power under section 13(3) by making 'such other order may be just.' If the circumstances are such that justice requires the committal order to be quashed amongst the options available is that of ordering a retrial …"
"The guidance which can be provided for future cases is as follows.
(1) As committal orders involve the liberty of the subject it is particularly important that the relevant rules are duly complied with. It remains the responsibility of the judge when signing the committal order to ensure that it is properly drawn and that it adequately particularises the breaches which have been proved and for which the sentence has been imposed.
(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.
(3) Interests of justice will not require an order to be set aside where there is no prejudice caused as a result of errors in the application to commit or in the order to commit. When necessary the order can be amended.
(4) When considering whether to set aside the order, the court should have regard to the interests of any other party and the need to uphold the reputation of the justice system.
(5) If there has been a procedural irregularity or some other defect in the conduct of the proceedings which has occasioned injustice, the court will consider exercising its power to order a new trial unless there are circumstances which indicate that it would not be just to do so."
"34. While Mr West was thus made aware in advance of the hearing that contempt of court would be considered, the notices provided clearly fell short of the procedural requirements set out in the Crim PR. In the normal course, compliance with the strict provisions of the Crim PR can be waived by the parties or the court; in cases of alleged contempt, however, we have no doubt that strict observance of the provisions is essential. As Mr Cox observed, the contempt jurisdiction is a powerful tool which can directly impact on the liberty of the subject. Compliance with the Crim PR allows the "charge" to be fully formulated and beyond doubt; it provides a structure which forms the four corners of what is in issue and it avoids the very criticism that Mr Cox did advance in this case.
35 In the circumstances, given the significance of the jurisdiction of contempt of court, we have come to the conclusion that this failure of process invalidates the conclusion that the judge reached. We recognise that it is likely to have made little difference but we are not prepared to assert that; it is far more important to underline the vital importance, where issues of contempt arise in circumstances of this nature, of following the approach laid down by the Crim PR."
Discussion
Canterbury
"Other criticisms
26. Part 48 of the Criminal Procedure Rules applies to all contempt proceedings in the criminal courts. Rules 48.5 – 48.8 apply. The judge acknowledged in the first hearing that these paragraphs applied, yet they were not properly followed.
27. Rule 48.7 in particular is important:
48.7 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.
28. This rule clearly intends that a separate written statement akin to a charge sheet be prepared. Statements of witnesses such as were served before the hearing are not sufficient. And even if they are, it is not clear what "the conduct" is.
Our approach in the Crown Court
29. Part of the responsibility for the vagueness of the allegations lies with us, and was deliberate. We knew that spelling out the allegations clearly would not be entirely straightforward for the judge, and that she might not have had the opportunity to give sufficient thought to the details of the contempt hearing.
30. By the end of the discussion and argument I suspect the judge still felt a certain unease about nailing her colours to the mast. That unease was maintained by the tactical approach we took. On one view, her passing a suspended sentence reflected that.
31. If we had been more insistent that she properly spell out the specific actions that she proposed to find as contempt, she probably would have done so – and we would have been in a worse position as her sense of unease would have subsided."
"At once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective."
"I have to be super careful you see, because when I was coming to these court cases part of what the police did was they dawn raided me and they put me under a contempt of court charge which could mean that I could face prison or I'm on a suspended sentence because they don't want people reporting…" And later: "…I'm on a suspended sentence, suspended prison sentence which was supposed to prevent me or deter me from reporting on these sort of cases."
Leeds
"Of necessity, the exercise in a civilised society of freedom of speech means that individuals … are allowed to engage in behaviour which the majority may find to be offensive and unpalatable, and there may be many who ... have found that which [the appellant] says and does unpalatable, offensive and unpleasant. But … the issue here is, in some respects, an aspect of a civilised society which is even more important and that is the integrity of the court system. [He] now … feels deep regret for the breach of that integrity that his action this morning caused."
"Classification of prisoners
7.(3) Prisoners committed or attached for contempt of court, or for failing to do or abstain from doing anything required to be done or left undone:
(a) shall be treated as a separate class for the purposes of this rule;
(b) notwithstanding anything in this rule, may be permitted to associate with any other class of prisoners if they are willing to do so; and
(c) shall have the same privileges as an unconvicted prisoner under rules 20(5), 23(1) and 35(1)."
(i) It was inappropriate to proceed immediately on the motion of the court to deal with the alleged contempt after immediate steps had been taken to remove the offending video from the internet. An adjournment was necessary to enable the matter to proceed on a fully informed basis; in any event
(ii) The failure to comply with Part 48 of the Rules resulted in there being no clear statement, orally or in writing, of the conduct said to comprise a contempt for contravening the section 4(2) order in place;
(iii) It was unclear what conduct was said to comprise a breach of that order and the appellant was sentenced on the basis of conduct which fell outside the scope of that order;
(iv) The haste with which the contempt proceedings were conducted led to an inability of counsel to mitigate fully on the appellant's behalf.
Assessing the appropriate level of punishment
(a) the effect or potential consequences of the breach upon the trial or trials and upon those participating in them;
(b) the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made;
(c) the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied;
(d) the contemnor's level of culpability and his or her reasons for acting in breach of the reporting restrictions;
(e) whether or not the contempt was aggravated by subsequent defiance or lack of remorse;
(f) the scale of sentences in similar cases, albeit each case must turn on its own facts;
(g) the antecedents, personal circumstances and characteristics of the contemnor;
(h) whether or not a special deterrent was needed in the particular circumstances of the case.
(a) Trials may have to be abandoned irretrievably;
(b) Juries may have to be discharged and retrials ordered with all the consequent delays and expense;
(c) Witnesses, some of them perhaps vulnerable, may have to face the ordeal of giving evidence for a second time;
(d) The trial judge's decision upon how to manage the trial in response to the contempt may form the subject matter of an appeal which, whether or not successful, will generate additional anxiety, delay and expense.
Conclusion