Attorney General v Butterworth

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE DONOVAN,LORD JUSTICE PEARSON
Judgment Date16 July 1962
Judgment citation (vLex)[1962] EWCA Civ J0716-1
Date16 July 1962
CourtCourt of Appeal
Her Majesty's Attorney-General
and
George Butterworth and Others

[1962] EWCA Civ J0716-1

Before:

The Master of The Rolls (Lord Denning)

Lord Justice Donovan

Lord Justice Pearson.

In The Supreme Court of Judicature

Court of Appeal

THE ATTORNEY-GENERAL (Sir Reginald Manningham-Buller, Q. C.) and MR. ROBIN DUUN, Q. C.(instructed by the Treasury Solicitor) appeared on behalf of The Attorney-General.

MR. GUY T. ALDOUS, Q. C. and MR. DOUGLAS FALCONER (instructed by Messrs. Shaen, Rosooe & Co.) appeared on behalf of the Respondents.

THE MASTER OF THE ROLLS
1

In this case the Attorney-General seeks to commit car attach ten members of a Trade Union for contempt of Court. Until recently this Court had no jurisdiction in oases of criminal contempt; the decision of the Court of First Instance was final, but now under the 1960 Act an appeal lies to this Court by either side.

2

The case arises out of a matter which came before the Restrictive Practices Court concerning an agreement known as RENA which subsisted between the Newspaper Proprietors Association, Limited and the National Federation of Newsagents, Booksellers and Stationers, which is a trade union. The Registrar referred the agreement to the Court, and the Court heard evidence so as to determine its validity. On the 27th July, 1961 the Court declared that all the restrictions in the agreement were contrary to the public interest and void. Those proceedings will be found reported in 1961, 1 Weekly Law Reports, page 1149.

3

In the course of those proceedings one Harry Dunmore Green lees gave evidence on the 21st June, 1961 before the Restrictive Practices Court. He was a man who had taken an active interest in the affairs of the Federation; he had for some years been Honorary Treasurer of the Romford Branch and was at the time when he gave his evidence Honorary Treasurer of the Romford Branch and Delegate to the London District Council. His evidence before the Court was favourable to the case made by the Registrar and adverse to the Federation. It supported the view that the RENA agreement was contrary to the public interest, and indeed the Court so held when they came to give judgment.

4

Soon after the proceedings were concluded Mr. Greenlees found himself in trouble. In September and October, 1961 meetings were called of the Romford Branch at which his conduct in giving evidence was called in question. On the 18th September, 1961 at a Special Committee Meeting he was "hauled over the coals" and required to explain his conduct, and condemned for it. On the20th September, 1961 at a General Meeting of the Branch he was, according to a Trade paper, "put on trial". Mr. Butterworth, the Chairman, said he had "helped to drive this final nail into our coffin", and Mr. Boston said that he had "helped to sink our ship", but on a show of hands seven members showed approval, seven members disapproved, and four abstained. It might have been supposed that after that meeting the matter was finished with. Not so; Mr. Butterworth, the Chairman, and Mr. Etherton, the Secretary of the Branch, Immediately called another mooting which was hold on the 25th September, 1961. At it Mr. Boston said he thought Mr. Greenlees action merited his expulsion from the Branch. He was not, however, expelled because that required special procedure under the rules. But it was proposed that he should be relieved of his appointment as Branch Delegate to the London District Council and this was approved unanimously. On the 2nd October 1961 another Committee Meeting was held. It was then proposed and seconded that "this Meeting strongly deprecates the recent action taken by Mr. Greenlees in the RENA case as a Federation member which was contrary to the best interests of the Federation! agreed". Also that "Mr. Greenlees be relieved forth with of his position as Branch Treasurers agreed". I need not go further into the facts; they are all fully set out in the judgment of the Restrictive Practices Court delivered by Mr. Justice Russell which is reported in 1962, 2 Weekly Law Reports, and page 70. But I must state the findings of the Court as to the motives actuating the individual members.

5

In the case of Mr. Butterworth, Mr. Bailey and Mr. Etherton the predominant motive in the minds of each of those gentlemen was to punish Mr. Greenlees for having given evidence in the RENA case. In the case of Mr. Boston, Mr. Snape and Mr. Free the motive was in part to punish Mr. Greenlees, but this was not the predominant motive. But in the case of the other four gentlemen, Mr. Baldock, Mr. Davis, Mr. Ledgor-Beadell and Mr. Burden, there was no evidence on which to find that any of them intendedin whole or in part to inflict punishment on Mr. Greenlees for giving evidence.

6

I must pause here to say that the resolutions passed by the Romford Branch turned out afterwards to be inoperative because they had not been validly passed under the Federation Rules. Mr. Greenlees remained therefore Branch Delegate and Branch Measurer, but we were told that he has since resigned.

7

Soon, after the meetings, Mr. Greenlees reported the matter to the appropriate authorities. On the 3lst October, 1961 the Attorney-General applied to commit those concerned for contempt of Court in causing Mr. Greenlees to be relieved of his appointments. But there was great difficulty in finding out the names of those present at the various meetings; Mr. Greenlees had asked Mr. Etherton for them, but Mr. Etherton had not replied, so proceedings had to be started in the dark on such names as Mr. Greenlees could give. Eventually the correct names were given, but only after a considerable amount of costs had been incurred.

8

The Motion to the Court also alleged that the Respondents had "caused" Mr. Greenlees to be relieved of his appointment, whereas the resolutions turned out, as I have said, to be inoperative, so the Motion was amended at a late stage of the hearing so as to read: "Purporting or attempting to cause" him to be relieved of his appointment. I sea no possible prejudice to the Respondents on that matter. They knew well what the complaint was; it was the steps that they had taken at the meeting in depriving Mr. Greenlees of his positions in the Union. I am of opinion that the Amendment was rightly made, even though it was made at a very late stage.

9

The Restrictive Practices Court, under the Act which governs it, has the like powers to commit for contempt of Court as the High Court, provided always that one of the Judges of that Court pronounces the Order or gives his consent. But the Court refused this Motion; they said: "We do not find in all thecenturies during which the Courts have treated of criminal contempt, a case in which conduct adverse to a witness has been found to be (or suggested to be) a contempt where that conduct occurs after the case is over and all have gone home. The general tenor of authority indicates that the relevant conduct must be 'pending' proceedings".

10

I cannot agree with the decision of the Restrictive Practices Court. It may be that there is no authority to be found in the books, but if this be so, all I can say is that the sooner we make one the better. For there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimize him afterwards for having given it. How can we expect a witness to give his evidence freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by those who dislike the evidence he has given? After he has honestly given his evidence, is he to be liable to be dismissed form his employment, or to be expelled from his Trade Union, or to be deprived of his office, or to be sent to Coventry, simply because of that evidence he has given? I decline to believe that the law of England permits him to be so treated. If this sort of thing could be done in a single case with impunity, the news of it would soon get round. Witnesses in other cases would be unwilling to come forward to give evidence, or if they did come forward, they would hesitate to speak the truth, for fear of the consequences. To those who say there is no authority on the point, I would say that the authority of Lord Lansdale, the Master of the Rolls, in 1839 is good enough for me: "If witnesses are in this way deterred from coming forward in aid of legal proceedings, it will be Impossible that justice can be administered. It would be better that the doors of the Courts of Justice were at once closed" Littler v. Thomson, 1839 2 Beavan at page 131. I have no hesitation in declaring that the victimization of a witness is a contempt of Court, whether done whilst the proceedings are stillpending or after they have finished. Such a contempt can he punished by the Court itself before which he has given evidence; and, so that those who think of doing such things may know where they stand, I would add that if the witness has been dandified by it, he may well have redress in a civil Court for damages.

11

Whilst I agree that there is no authority directly on the point, I beg leave to say that there are many pointers to be found in the books in favour of the view I have expressed. I have already mentioned what Lord Langdale said. Next I would turn to what Mr. Justice Kay said in 1881 in Rowden v. Universities Co-operative Association, Ltd., 71 Law Times Journal, page 373. Pitman as servant had made an affidavit in support of a motion against his employers. The general manager thereupon suspended him at once from his duties. A motion was made to commit the general manager for contempt. It was contended on his behalf that the dismissal of a servant could not be interfered with by the Court. The defendants, it was said, were within their legal rights. Mr. Justice Kay rejected this argument in words which are worth repeating: "All that had to be considered in these cases was: did the act...

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