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Tommy Robinson's Conviction and Appeal: Considering Contempt of Court

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He is currently a trainee solicitor at a large national firm, sitting in the Real Estate department. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

Justice cannot be for one side alone, but must be for both.

Eleanor Roosevelt

On 1 August 2018, the news broke that far-right activist Stephen Yaxley-Lennon – more commonly known by the pseudonym ‘Tommy Robinson’ – was to be released from prison on bail, after successfully appealing against a contempt of court conviction by Leeds Crown Court in May 2018. The Court of Appeal in R v Yaxley-Lennon [2018] had quashed the conviction on the grounds of procedural flaws, and ordered a retrial.

The decision followed the turbulent #freetommy campaign launched by Robinson's supporters to protest his initial arrest. Gaining support across the world – with sympathetic statements coming from politicians in the Netherlands, Germany and the USA among others  the campaign also triggered large rallies that, in some cases, required the deployment of police officers in riot gear.

Unsurprisingly, the extent to which the campaign took off resulted in Robinson’s arrest, imprisonment and now (temporary) release attracting fervent media attention. Inevitably, given the polarising status of the former English Defence League's leader, the coverage it received often had a political element that over-simplified or ignored the legal issues at play.

In light of this, this article seeks to remedy this: after setting out the facts of the case, it examines how the Court of Appeal's application of the law resulted in Robinson’s appeal being partially successful, and explains what can be expected to happen next.

What Did Tommy Robinson Do?

The actions for which Robinson received convictions take place over the course of little more than a year, and can be organised into two events: those that took place outside Canterbury Crown Court in May 2017, and those that took place outside Leeds Crown Court in May 2018.

Canterbury Crown Court

On 8 May 2017, Robinson attended Canterbury Crown Court during the rape trial of four defendants. While the jury were deliberating in the jury room, Robinson filmed outside and inside the court building (though he did not enter the courtroom itself). He did so despite the fact that:

  1. There were many notices throughout the court building stating that filming or taking photographs could amount to an offence and/or contempt of court, and
  2. Security staff told Robinson to stop filming, and that he could commit an offence and/or contempt of court if he continued to do so.

Before Robinson was able to obtain footage of the defendants – which was his intention – the judge presiding over the trial, HHJ Norton QC, became aware of what was happening and took steps to ensure that Robinson did not encounter the defendants. The footage recorded by Robinson, in which he referred to the defendants as ‘Muslim child rapists’, was subsequently posted onto the internet.

Robinson was arrested on 10 May 2017 at his home and brought back to Canterbury Crown Court, where proceedings were adjourned until 22 May 2017. At the trial, HHJ Norton QC made it clear that Robinson had risked derailing the rape trial, and that contempt proceedings were therefore being brought in order to ensure those rape trials could be carried out justly and fairly. In her judgment in R v Yaxley-Lennon [2017], she explained:

[T]his is not about free speech, not about the freedom of the press, nor about legitimate journalism, and not about political correctness. It is about justice and ensuring that a trial can be carried out justly and fairly, it's about being innocent until proven guilty. It is about preserving the integrity of the jury to continue without people being intimidated or being affected by irresponsible and inaccurate 'reporting', if that's what it was.

HHJ Norton QC went on to conclude that the seriousness of the contempt of court Robinson had committed called for a custodial sentence. She therefore sentenced Robinson to a period of three months’ imprisonment, suspended for eighteen months. It was made expressly clear to Robinson that if he engaged in similar conduct in the future, it was highly likely that he would immediately be arrested and taken into custody.

Leeds Crown Court

On 25 May 2018 – within the eighteen month time-frame of the suspended sentence that he was given by HHJ Norton QC at Canterbury Crown Court – Robinson went to the Leeds Crown Court during the trial of several defendants, and live-streamed his attendance on Facebook to hundreds of thousands of viewers.

While the jury were deliberating on the case, Robinson – in the livestream  made various references to the trial, the identity of the defendants, the charges against them, the supposed religion of the defendants, the ethnicity of the defendants, the costs of the prosecutions, and questioned why publication was prohibited. Robinson also confronted some of the defendants with his camera as they arrived at court in the morning. All this risked jeopardising the trial.

Once HHJ Marson QC became aware of what was happening, he postponed the trial and ordered that Robinson be brought into the court. After watching part of the recording, HHJ Marson QC accepted Robinson's offer to delete the video so as reduce the risk of the trial being compromised. 

However, HHJ Marson QC then informed Robinson that contempt of court proceedings would be pursued against him. Legal representation was found for Robinson during a 33 minute adjournment. A postponement order was also made: this delayed Robinson’s trial until 2pm, at which point the hearing began, and prohibited any reporting on the matter in the press until its completion.

For the purposes of the hearing, HHJ Marson QC treated Robinson as if he had confessed to being in contempt. At its conclusion, he sentenced Robinson to thirteen months’ consecutive imprisonment: ten months for the events of that day – a figure reduced from an initial fifteen months, due to Robinson’s acceptance of his guilt – and three months added on account of the activation of the suspended sentence that he had been given in May 2017.

What is Contempt of Court?

The concept of ‘contempt of court’ is somewhat enigmatic. The laws governing it can be found in a variety of sources, including both case law and legislation. There are also different types of contempt, ranging from criminal contempt (for example, influencing members of a jury on an active trial) to civil contempt (for example, breaching an order of the court).

The Law Commission states that contempt of court ‘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’. Its breadth allows it to comprehensively meet its aim, which was explained by Lord Burnett CJ in R v Yaxley-Lennon [2018]:

The law of contempt exists to protect the course of proceedings from interference, to safeguard the fairness and integrity of proceedings and to ensure that orders of the court are obeyed.

As part of this, contempt of court is therefore ensuring juries must try cases solely on the evidence they hear in court; as such, the law goes to great lengths to prevent conduct – such as Robinson’s live-stream outside Leeds Crown Court – that could inappropriately influence jurors.

Of particular relevance to Robinson’s case is Section 2 of the Contempt of Court Act 1981 (CCA 1981). This contains a rule of strict liability, whereby – regardless of the intent of the publisher  a contempt of court under Section 1 of the CCA 1981 is committed following any ‘publication’ which ‘creates a substantial risk that the court of justice in the proceedings in question will be seriously impeded

It should be recognised, however, that not all reporting of ongoing cases is prohibited. Firstly, the reporting will constitute contempt only if it ‘creates a substantial risk that the court of justice in the proceedings in question will be seriously impeded’. Thus, reporting that does not disclose any confidential information or contain biased opinions will likely not be in contempt.

Secondly, even where the reporting would create such a risk, the CCA 1981 outlines a set of defences that negates the operation of the strict liability rule. As such, contempt of court does not arise following the publication of:

  1. Section 3(1) of the CCA 1981A report where, at the time of publication, the publisher – despite having taken all reasonable care – did not know or have any reason to suspect that the relevant proceedings had not yet concluded;
  2. Section 4(1) of the CCA 1981A fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith;
  3. Section 5 of the CCA 1981A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest.

Crucially though, these exceptions will not apply where the court has imposed a postponement order – otherwise known as a ‘reporting restriction’ – over a court. Such an order prohibits the public from publishing any report on the proceedings until after the conclusion of a particular trial or group of trials. Failure to adhere to these restrictions is therefore a contempt of court under Section 1 of the CCA 1981Such an order – granted under Section 4(2) of the CCA 1981 – are commonly imposed in cases involving multiple trials, so as to prevent a verdict given in an earlier trial from influencing the verdict in a later connected trial.

The case attended by Robinson at Leeds Crown Court on 25 May 2018 was subject to a postponement order implemented on 19 March 2018: it was one of three trials on the same matter. In light of this, Robinson’s comments about the trial on his live-stream were in breach of this order and gave HHJ Marson QC grounds to sentence Robinson to thirteen months in prison.

Robinson's Case in the Court of Appeal

Robinson's Arguments

According to reports, Robinson had initially intended to appeal only against the sentence he had received in Leeds Crown Court. However, it subsequently became clear that he also intended to appeal against the Canterbury Crown Court sentence, as well as against the actual findings of contempt in both courts.

The arguments made by Robinson, as outlined by the Court of Appeal in R v Yaxley-Lennon [2018], were as follows:

  1. There had been failures to comply with the requirements of the Criminal Procedure Rules (CrPR);
  2. Neither HHJ Norton QC or HHJ Marson QC should have dealt with the alleged contempts with summary trials;
  3. HHJ Marson QC punished Robinson for matters falling outside the scope of his material contempt;
  4. Both HHJ Norton QC or HHJ Marson QC treated Robinson’s conviction as one of a criminal offence, as opposed to one of contempt. This wrongly denied Robinson of certain privileges.

The Court of Appeal's Judgment

Criminal Procedure Rules

The CrPR dictate how criminal proceedings are to commence, continue and conclude. The most relevant provisions for contempt hearings are Part 48 of the CrPR. Of particular importance to Robinson's case were Part 48.5, Part 48.7 and Part 48.8 of the CrPR.

Robinson’s primary argument was that any failure by a court to comply with Part 48 of the CrPR is fatal to a finding of contempt, whether or not the defendant has admitted their conduct and irrespective of its impact on the fairness of the proceedings. In making this argument, Robinson relied on the Court of Appeal's decision in Re West [2015] 1 WLR 109, in which a finding of contempt was overturned because the appellant had not been served with a notice in advance of the hearing as the CrPR required. Justifying this decision, Sir Brian Leveson P concluded such a result was necessary:

[T]o underline the vital importance… of following the approach laid down by the [CrPR].

However, the Court of Appeal in R v Yaxley-Lennon [2018] disagreed that Sir Brian Leveson P had intended to lay down an all-encompassing rule. As Lord Burnett CJ explained, his statement should not be viewed as:

[S]upport[ing] the proposition that any and every breach of the rules invalidates a finding of contempt; rather that was the position “in the circumstances of that case”’.

Instead, the Court of Appeal in R v Yaxley-Lennon [2018] opted to follow the approach dictated by Lord Woolf MR in Nicholls v Nicholls [1997]: namely, so long as the appellant had been given a fair trial and the contempt order was made on valid grounds, a defect does not require the order to be set aside ‘except in so far as the interests of justice require this to be done’. This will not be the case unless the error caused prejudice against the appellant.

As a result – though it was true that Robinson had not been served with a written statement containing the particulars of the trial at Canterbury Crown Court, as required under Part 48.7 of the CrPR –  the Court of Appeal in R v Yaxley-Lennon [2018] held this was not a matter for much concern. Robinson had instead been served with four witness statements (two from members of the court security staff, and two from members of the police force) and – despite not meeting the exact requirements of Part 48.7 of the CrPR  they had not caused were any real prejudice to the appellant’ and were thus sufficient.

Summary Trials

Typical criminal trials of a serious nature will see the involvement of a judge  who makes decisions on the law governing the case  and a jury, which makes decisions of fact. However, in certain circumstances, it is open to the judge to decide to deal with a case using a summary trial. This sees the judge also take on the role of the jury, making decision of fact. 

The Court of Appeal in R v Yaxley-Lennon [2018] confirmed it is well-accepted that a judge can deal with certain contempts, including that committed by Robinson, with a summary trial. The power to order a summary trial is often exercised where the court needs to act quickly in order to prevent further damage to trials  such as where people in the public gallery in a courtroom are making ‘noisy and intemperate interruptions – but should be used ‘sparingly’. As Lawton LJ said in Balogh v St Albans Crown Court [1975] QB 73:

[T]his 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.

This need for caution was recognised by the Court of Appeal in R v Yaxley-Lennon [2018], which observed that – even where it seems necessary to proceed summarily  it is often wise, having sorted out the immediate concern, to adjourn the contempt hearing to a later date and sometimes before a different judge’. This has the benefit of avoiding any appearance of bias, whereby the judge appears to be a judge in his own cause’.

Regarding the Canterbury trial, the Court of Appeal found there was no problem: Robinson had been given a 12-day adjournment between initial arrest and the trial, providing plenty of time for his team to prepare. From any objective view, a fair process had been followed.

However, the same could not be said for the Leeds trial. Indeed, just five hours after Robinson had been filming at Leeds Crown Court, he was being forced to begin a thirteen-month prison term. As Lord Burnett CJ said in R v Yaxley-Lennon [2018]:

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.

While it felt HHJ Marson QC had been right to require Robinson to delete the video from Facebook, the Court of Appeal held that, once this had happened, the trials were no longer under an immediate threat of being improperly prejudiced. HHJ Marson QC should therefore have ‘taken stock of the procedure to be followed’, considered referring the matter to the Attorney General – as is general practice in contempt proceedings – or at least adjourned the proceedings ‘to enable the matter to proceed at a more measured pace’.

Considerations Beyond the Scope of Contempt

Before the Court of Appeal, Robinson argued that HHJ Marson QC had wrongly had regard to considerations beyond the breach of the postponement order made under Section 4(2) of the CCA 1981. In this respect, Robinson pointed towards the fact that, while Robinson's hearing before HHJ Marson QC seemed to revolve around the breach of the postponement order, remarks were also made about Robinson’s comments on the religion and ethnicity of the defendants in the grooming trial. This was clear from a passage in HHJ Marson QC's judgment, where he told Robinson that:

Over a prolonged period… the vast majority of what you were saying… was reference to case[s] like this, to Asian men, to the grooming of 11-year-old girls... 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 Court of Appeal accepted that argument, concluding that the cited passage demonstrated HHJ Marson QC's ‘wider concern that [Robinson's] broadcast was prejudicial to the interests of justice in the trial’. Even though these matters were ‘capable of amounting to a free-standing contempt of court’, it was concluded that these matters were outside of the prohibition under the postponement order, and it was not open to HHJ Marson QC to punish Robinson for them.

To reinforce this argument, Robinson also pointed towards the confusion caused by the fact that, contrary to the requirements under Part 48.7 of the CrPR, ‘no particulars of the alleged contempt were ever formulated’. This, it was argued, meant it was unclear as to the specific things Robinson was admitting and for what parts of his live-stream HHJ Marson QC considered Robinson to be guilty of contempt of court for breach of the postponement order under Section 4(2) of the CCA 1981.

The Court of Appeal again agreed, concluding that the failure to follow the requirements under Part 48.7 of the CrPR was 'much more than a technical failure’. Indeed, as Lord Burnett CJ said in R v Yaxley-Lennon [2018]:

In contempt proceedings, touching as they do on the liberty of the subject, there is a need for the contempt in question to be identified with precision and the conduct of the [appellant] identified with sufficient particularity to enable him, with the assistance of legal advice, to respond to what is a criminal charge, in all but name.

Contempt: Civil or Criminal?

The Court of Appeal in R v Yaxley-Lennon [2018] agreed with Robinson's arguments that there was a series of errors present in the judgments of HHJ Norton QC and HHJ Marson QC which, it cautioned, had 'serious consequences' and 'should not be allowed to occur again'.

Specifically, the judges in both cases had used language and made orders that gave the incorrect impression that Robinson had committed a criminal offence, as opposed to being found in contempt of court. For example, Robinson’s term of thirteen months was described as a ‘sentence’ (the criminal term) instead of a ‘committal’ (the contempt term).

As a result, Rule 7(3) of the Prison Rules 1999 which normally applies to prisoners committed for contempt of court  was neglected in Robinson’s case. This had the result that Robinson was deprived of several privileges, including 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.

Perhaps most importantly, the judges had wrongly considered Section 258 of the Criminal Justice Act 2003 – which provides a ‘person committed to prison for contempt is entitled to be released unconditionally after serving one half of the term for which he was committed’ – inapplicable to the Robinson's proceedings. As such, Robinson would have been treated as a normal convicted prisoner, meaning he would be subject to ‘release on licence with the attendant risk of recall’.

Finally, the Court of Appeal agreed that a victim surcharge had been wrongly imposed: The Criminal Justice Act 2003 (Surcharge) (Amendment) Order 2016 states that such charges are payable only in the event of the passing of a ‘sentence of imprisonment’ and not upon a committal for contempt.

Conclusion: What Happens Next?

Having agreed with three of the four arguments advanced by Robinson, the Court of Appeal in R v Yaxley-Lennon [2018] quashed the finding of contempt – and all consequential orders (namely, the prison sentence) – made by HHJ Marson QC in Leeds Crown Court, subject to a retrial to be heard by a different judge. However, it found no reason to quash the finding of HHJ Norton QC in the Canterbury Crown Court.

Crucially however, despite the celebratory reception the Court of Appeal's judgment was given by Robinson's supporters, it is likely that the retrial will result in imprisonment once more: the errors made were procedural rather than substantive, and Robinson has already admitted to the contempt. 

Nevertheless, this judgment remains an important one. It shows the importance which English law places on the need for courts to follow the correct procedure, no matter the individual(s) involved. This, of course, contradicts arguments made by many of Robinson's supporters, which contended that he was the victim of some institutional conspiracy intended to limit the right to freedom of speech. As the Secret Barrister writes:

[T]his is [not] a victory for freedom of speech [but] a victory for procedural rules, and a sharp reminder to the courts of the need to follow them.

This is not to belittle the vital takeaway from R v Yaxley-Lennon [2018]: nobody  however radical or controversial their views – deserves to be taken inside a courtroom and, within a matter of hours, find themselves carted off to prison for over a year without proper time to prepare and defend themselves. If this became common practise, the justice system in England and Wales could hardly be considered to deliver much ‘justice’ at all.

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Tagged: Criminal Law, Human Rights, Justice, Media, Rule of Law, Sexual Offences

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