A common saying is "A lie can travel halfway around the world before the truth can get its boots on." This was illustrated recently by the Tommy Robinson case. His case resulted in a vast amount of ill-informed comment and distortion of the truth which it is difficult, if not impossible, to eradicate. Let's look at the situation.
Recently, Stephen Yaxley-Lennon (aka Tommy Robinson) was committed to prison for contempt of court and this resulted in enormous publicity for him personally and drew attention to the law of contempt.
“Contempt of court” - (Interference with the administration of justice) - covers a wide variety of conduct which undermines or has the potential to undermine the course of justice, and the procedures which are designed to deal with them. The law governing contempt of court is vast" - Law Commission 2012. Examples of both contempt at common law and statutory contempts are in this document -
The Law Commission did not cover all aspects of the law of contempt as shown by this paragraph in the Consultation Paper -
From outside the Crown Court at Leeds, Mr Robinson used Facebook Live to broadcast in relation to an on-going trial. The broadcast took place as defendants arrived at court for the morning court hearing. It is reported that, prior to his arrest (related to breach of the peace), the broadcast lasted for over an hour and that Police Officers outside the court building were aware for most (perhaps all) of that time that he was "live streaming." A "reporting restriction" applies to that trial.
Media reports indicate that it is a "postponement order" under Section 4(2) of the Contempt of Court Act 1981. (NB: It still applies and so no more must be said about the on-going trial). On section 4(2) see this post of 24th September 2012 where His Honour Judge Gilbart QC (later Mr Justice Gilbart) said:
".... the punishment of a man or woman charged with crime can only happen in a free democratic society if he is convicted after due process. It is critical to the maintenance of that due process that any Defendant who denies a charge receives a fair trial, in which trial the jury must decide the case on the evidence it hears put before it in court, presided over by a judge. It cannot and must not be decided on the basis of material published otherwise ...."
For more on section 4(2) orders see R v Sarker [2018] EWCA Crim 1341
On the same day, the trial judge at Leeds (His Honour Judge Geoffrey Marson QC) dealt with Mr Robinson for contempt of court. At the hearing Mr Robinson admitted the contempt and was represented by Matthew Harding, an experienced barrister called to the bar sixteen years ago. Mr Robinson was committed to prison for 13 months - 10 months for the conduct at Leeds and 3 months due to activation of a suspended term imposed at Canterbury in 2017. The Canterbury judgment (Her Honour Judge Heather Norton QC) is HERE and Mr Robinson was clearly warned that a further contempt of court would result in the suspended term being activated.
At the Leeds hearing it is reported that the judge viewed "the video footage" - LeedsLive 29th May. According to the Yorkshire Evening Post 29th May 2018, Mr Robinson expressed "deep regret" and thought that what he was saying was already in the public domain.
Whe committing Mr Robinson for contempt, the judge imposed a reporting restriction. The purpose of this was to try to avoid any prejudice to the on-going trial. However, following representations by the media, the restriction relating to Mr Robinson was lifted - Press Gazette 29th May - but not the restriction relating to the on-going trial.
It is not unusual for some contempts of court to be dealt with summarily by the judge and contempt of court does not attract trial by jury.
The summary procedure for contempt presents a number of problems such as inadequate time to properly prepare the case. It is obviously crucial that the individual facing committal for contempt is given a proper opportunity to know the detailed allegations and to be able to prepare for the hearing. The hearing in Mr Robinson's case was held within hours and it is debatable whether adequate time was allowed to prepare a defence.
Generally, resort to the summary procedure will be justified where there is a need for the court to act decisively, to show that its authority has not been undermined, and to demonstrate that behaviour of the kind perpetrated will never be tolerated and that it will be dealt with quickly and severely. On this see Balogh v St. Alban's Crown Court [1975] 1 QB 73 . That may - I am not sure - have been the situation at Leeds since, as reported The Guardian 29th May, Mr Robinson broadcast from outside the court via Facebook Live for over an hour. He attempted to film defendants entering the court and spoke about the case. The video was viewed thousands of times. Potentially, there was a substantial risk of serious prejudice to the on-going trial should jurors see the video published by Mr Robinson. That is the very thing that the reporting restriction was intended to avoid.
A further ill-informed comment about Mr Robinson's case is that he was tried in secret. This was NOT so. The hearing was in public and was attended by media representatives. However, the judge imposed the reporting restriction referred to earlier and which was later removed.
The judgment of HHJ Marson has not been published at the time of writing this post. This ought to throw a fuller light on the facts and the court's reasoning. Either a written judgment or a transcription of an oral judgment should be provided in accordance with this Practice Direction - (paras 14 and 15). This post will be updated if necessary following the publication of any judgment.
The Criminal Procedure Rules Part 48 deal with Contempt of Court. See also Crown Prosecution Service
Court and Tribunals Judiciary - Examples of Contempt
Prisoner Safety:
At the Leeds hearing it appears that representation was made to the judge that, in prison, Mr Robinson could be a risk of attack by other prisoners. The Yorkshire Evening Post reported that Mr Robinson's counsel told the judge that - " ... Robinson had served time in prison before and had been the victim of assaults in custody .... there had been "a price on his head" during his last prison term and inmates had been offered the reward of drugs and mobile phones to kill him."
It is worth noting that the prison system allows for segregation of prisoners - see Prison Rules - Rule 45. (Segregation was examined by the Supreme Court in the Bourgass case - [2015] UKSC 54). I have no further information at this time about whether any action is being taken in this regard in Mr Robinson's case.
Contempt of Court generally:
Moving away from the Robinson case, a great deal more could be written about contempt of court.
In Attorney-General v Punch [2002] UKHL 50, Lord Nicholls said at para 2 - "Contempt of court is the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice. It is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms ....."
For those wishing to explore this subject further, I recommend reading the Law Commission's Project on Contempt and, in particular, Contempt of Court: Court Reporting. It will be seen that a significant concern was to address the question - "How does anyone know that a reporting restriction is in place?" The Commission recommended:
- ensuring that postponement orders on court reporting are all posted on a single publicly accessible website, and
- including a further restricted service where, for a charge, registered users can access the terms of the order and sign up for automated email alerts of new orders.
The Commission stated - "Under section 4(2) of the Contempt of Court Act 1981, the courts have a power to order that contemporary court reporting be postponed, where this is necessary to avoid a substantial risk of prejudice to those or other imminent or pending legal proceedings. There is presently no formal system for communicating the existence of such orders to the media, which creates obvious practical problems and reduces the efficacy of the regime."
Clearly, such orders are a significant exception to the usual "open justice" principle. One aspect of orders under section 4(2) is that reporting may take place once the order ceases to have effect. By then the details of what happened in court will be stale news and often will not be adequately reported.
See also the 2016 Guide on Reporting Restrictions issued by the Judicial College. The need for precision in formulation of orders is set out in the guide.
The conduct of contempt proceedings is the subject of Part 48 of the Criminal Procedure Rules.
For appeals in contempt cases see the Administration of Justice Act 1960 section 13.
Further useful material is available via Albion Chambers - Contempt Proceedings and Contempt of Court - The Compendium
The Secret Barrister 25th May
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