The decision of the Court of Appeal (Lord Burnett CJ, Turner and McGowan JJ) to quash the finding of contempt in the case of R v Stephen Yaxley-Lennon (alias Tommy Robinson) [2018] EWCA Crim 1856, in which Louis Mably QC appeared as Advocate to the Court, marks the most recent instalment of this high-profile case that has rarely been out of the headlines since he was first jailed in May. Hailed by his supporters and some sections of the media as a victory for free speech (the phrase is used only twice in the transcript, and played no part in the ultimate decision of the Court of Appeal), the judgment examines an area of criminal practice and procedure that it is apparent contains pitfalls even for experienced practitioners. Not for the first time, a failure to have proper regard to the Criminal Procedure Rules, in this case Rule 48, resulted in serious errors being made and a first instance decision being set aside.
As is well known, on the morning of 25th May 2018, Robinson attended Leeds Crown Court. There, he recorded a video of himself standing outside the court building which he livestreamed on the internet via Facebook. The recording, which lasted for about an hour and a half, concerned a trial which was the subject of a postponement order under section 4(2) of the Contempt of Court Act 1981.The order prohibited the publication of any report of the proceedings until after the conclusion of that trial and of a related trial which was yet to take place. Robinson’s ‘report’ (his journalistic credentials are unclear) was recorded close to the entrance used by the defendants and jurors. In it, he referred to the trial, the identity of the defendants, the charges against them and to charges which had not been proceeded with against some of the defendants. He had confronted some of the defendants as they arrived at court. His ‘report’ also referred to the supposed religion of the defendants, the ethnicity of the alleged victims, the costs of the prosecutions and questioned why publication was prohibited. This was not the first occasion upon which he had engaged in this sort of activity. He was the subject of a suspended sentence of 3 months’ imprisonment, imposed by a judge at Canterbury Crown Court in May 2017, in respect of similar behaviour at a trial held there.
Once Robinson’s activity came to his attention, the judge at Leeds Crown Court commenced summary contempt proceedings of his own motion the same day. Having invoked the procedure, and Robinson having ‘admitted’ the contempt, he heard from Robinson’s counsel in mitigation and proceeded to sentence Robinson that afternoon to an immediate term of imprisonment of 13 months. This term comprised 10 months for the contempt at Leeds consecutive to the activated 3 month suspended sentence from Canterbury.
The appeal to the Court of Appeal was initially only in respect of sentence, but it became apparent that a number of procedural flaws existed in the way that the case had been dealt with at Leeds. During the appeal, criticisms were levelled by Robinson’s counsel at the process before the Canterbury court too. The Court of Appeal considered these to be without merit. Notably a criticism that Robinson had not been provided with a statement of the particulars of the alleged contempt prior to it being found was given short shrift in the light of an advice from his counsel (in respect of which privilege had been waived) from which it was apparent that a deliberate tactical decision had been made not to seek greater particularity. The Court of Appeal refused permission to appeal against the substantive decision and the sentence, save to amend what had been recorded as a suspended sentence of imprisonment to a suspended committal for contempt.
The chief complaint made in respect of the Leeds matter – that the judge had been too hasty in dealing with and concluding the proceedings – was considered to be well-founded. As the Court noted (per Lord Burnett CJ at para 60 of the judgment): “In contrast to the procedure followed in Canterbury, where the appellant had over a week to secure representation and to prepare his response to the allegations against him, the appellant at Leeds was commencing a term of imprisonment of thirteen months within five hours of the conduct complained of. Such haste gave rise to a real risk that procedural safeguards would be overlooked, the nature of the contempt alleged would remain inadequately scrutinised and that points of significant mitigation would be missed. Those risks materialised.”
Put simply, there was no particular need for the judge to do as he did. Robinson had offered to, and did, remove the offending material from the Facebook page. This removed the immediate risk to the fairness of the proceedings that were at that stage ongoing. Once that had been done, there was no pressing need for the contempt proceedings to continue immediately. A more appropriate course would have been to adjourn to permit the hearing to proceed on a better informed basis.
In swiftly embarking on the summary procedure, as opposed to inviting the Attorney General to take contempt proceedings, the judge had failed properly to particularise which aspects of Robinson’s ‘report’ breached the postponement order. Of greater concern was the consequence that, while Robinson had ‘admitted’ the contempt (and the Court of Appeal was in no doubt that some of the material did breach the postponement order) it was unclear what to what his purported admission related. Some of the more potentially inflammatory material may have constituted a free-standing contempt in its own right, but did not breach the relevant postponement order.
A further difficulty from the speed at which the proceedings were conducted was the absence of time for Robinson’s counsel to marshal mitigation and, in particular, to ensure that the Court had proper information concerning his family situation, something that could have been obtained through a pre-committal report. Had this been a criminal case, the Court would have been obliged, unless it thought it unnecessary, to obtain and consider a pre-sentence report. The Court of Appeal observed that “it would be unusual, to say the least, for a man with three young children to be sent to prison at a first hearing without some independent inquiry into his family’s circumstances”. The level of detail which could be provided to the court concerning the potential impact of a custodial term or its duration upon the appellant’s wife and children was very limited indeed as a result. Furthermore, there was no opportunity for his legal representatives to obtain support from third parties in the form of character references or the like.
Last, but not least, the fact that the Robinson’s sentence was expressed as being a sentence of imprisonment under the Criminal Justice Act 2003 as opposed to a committal for contempt meant that he was wrongly categorised within the prison system (those committed for contempt enjoy the same privileges as unconvicted persons). By categorising him as serving a sentence of imprisonment, the judge’s order had the effect of depriving Robinson of privileges relating to visits by his doctor or dentist, the freedom to choose what clothes to wear and the absence of restrictions on prison visits and the sending and receipt of letters. It also affected the regime upon his release (those committed for contempt are released automatically after half of the sentence; those who are imprisoned are subject to release on licence with the attendant risk of recall).
It should not be thought that the Court of Appeal’s judgment will inevitably mean that all matters of contempt will now have to be dealt with less speedily. Lord Burnett CJ remarked that “a sense of proportion must be retained. Sudden outbursts of misconduct in the face of the court leading to a very short period of detention will not normally merit such circumspection”. However practitioners faced with the threat of such proceedings would be well advised to be familiar with Rule 48 of the Criminal Procedure Rules, and, where appropriate, to invite any judge considering embarking upon a hearing immediately to take time before doing so. Indeed it may be appropriate to invite the court to consider whether it should proceed by way of a referral to the Attorney General rather than the summary procedure. Lord Burnett CJ quoted with apparent approval the words of Lawton LJ in in Balogh v St Albans Crown Court [1975] Q.B. 73 at page 93:
“In my judgment [the] 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.”
Practitioners should also take heed that the Court of Appeal was less than impressed at the failure of all parties before the court in Leeds to have proper regard to relevant sections of Blackstone’s and Archbold, noting “there is much material readily to hand to enable all concerned to navigate these unfamiliar waters and whenever the circumstances allow the short amount of time needed for review of that material, should be taken”. To that corpus of work should be added the decision in Yaxley-Lennon itself, since the judgment contains, at its conclusion, a valuable restatement and summary of the relevant principles to be considered when considering sentence for such matters.
On that point, while Robinson has now been released on bail, time will tell whether he may yet be required to return to custody: the Court of Appeal directed that the matter be reheard before the Recorder of London as soon as possible.
