Balogh v St. Albans Crown Court

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE STEPHENSON,LORD JUSTICE LAWTON
Judgment Date04 July 1974
Judgment citation (vLex)[1974] EWCA Civ J0704-2
Date04 July 1974

[1974] EWCA Civ J0704-2

In The Supreme Court of Judicature

Court of Appeal

Appeal by Stephen Bernard Balogh from judgment of Mr. Justice Melford Stevenson at the Crown Court at St. Albans on 22nd May 1974.

Before:

The Master of the Rolls (Lord Denning),

Lord Justice Stephenson and

Lord Justice Lawton.

Stephen Bernard Balogh
Appellant
and
The Crown Court, St. Albans
Respondent

Mr. JOHN VINELOTT, Q.C., and Mr. MICHAEL KENNEDY (instructed by Messrs. A.F. & R.W. Tweedie, agents for The Official Solicitor) appeared on behalf of the appellant.

Mr GORDON SLYNN (instructed by the Treasury Solicitor) appeared as amicus curiae.

THE MASTER OF THE ROLLS
1

There is a new Court House at St. Albans. It is air-conditioned. In May of this year the Crown Court was sitting there. A case was being tried about pornographic films and books. Stephen Balogh was there each day. He was a casual hand employed by solicitors for the defence. Just as a clerk at £5 a day; knowing no law. The case dragged on and on. He got exceedingly bored. He made a plan to liven it up. He knew something about a gas called nitrous oxide N2O. It gives an exhilerating effect when inhaled. It is called "laughing gas". He had learned all about it at Oxford. During the trial he took a half-cylinder of it from the hospital car park. He carried it about with him in his brief case. His plan was to put the cylinder at the inlet to the ventilating system and to release the gas into the Court. It would emerge from the outlets which were just in front of Counsel's row. So the gas, he thought, would enliven their speeches. It would be diverting for the others. A relief from the tedium of pornography. So one night when it was dark he got on to the roof of the Court House. He did it by going up from the public gallery. He found the ventilating ducts and decided where to put the cylinder. Next morning, soon after the Court sat, at 11.15 a.m., he took his brief case, with the cylinder in it, into Court No. 1. That was not the pornography Court. It was the next-door Court. It was the only Court which had a door leading up to the roof. He put the brief case on a seat at the back of the public gallery. Then he left for a little while. He was waiting for a moment when he could slip up to the roof without anyone seeing him. But the moment never came. He had been seen on the night before. The officers of the Court had watched him go up to the roof. So in the morning they kept an eye on him. They saw him put down his brief case. When he left for a moment, they took itup. They were careful. There might be a bomb in it. They opened it. They took out the cylinder. They examined it and found out what it was. They got hold of Balogh. They cautioned him. He told them frankly just what he had done. They charged him with stealing a bottle of nitrous oxide. He admitted it. They kept him in custody and reported the matter to Mr. Justice Melford Stevenson, who was presiding in No. 1 Court (not the pornography Court). At the end of the day's hearing, at 4.15 p.m., the Judge had Balogh brought before him. The police inspector gave evidence. Balogh admitted it was all true. He meant it as a Joke. A practical joke. But the Judge thought differently. He was not amused. To him it was no laughing matter. It was a very serious contempt of Court. Balogh said:-

2

"I am actually in the wrong Court at the moment. The proceedings I intended to subvert are next door. Therefore, it is not contempt against your Court for which I should be tried."

3

The Judge replied:-

4

"You were obviously intending at least to disturb the proceedings going on in Courts in this building, of which this is one. You will remain in custody tonight and I will consider the penalty in the morning."

5

Next morning Balogh was brought again before the Judge. The inspector gave evidence of his background. Balogh was asked if he had anything to say. He said: "I do not feel competent to conduct it myself. I am not represented in Court. I have committed no contempt. I was arrested for theft of the bottle. No further charges have been preferred."

6

The Judge gave sentence: "It is difficult to imagine a more serious contempt of Court and the consequences might have been very grave if you had carried out your express intention. I am notgoing to overlook this and you will go to prison for six months. I am not dealing with any charge for theft. I am exercising the jurisdiction to deal with contempt of Court which has been vested in this Court for hundreds of years. That is the basis on which you will have to go to prison for six months." Balogh made an uncouth insult: "You are a humourless automaton. Why don't you self-destruct?" He was taken away to serve his sentence.

7

Eleven days later he wrote from prison to the Official Solicitor. In it he acknowledged that his behaviour had been contemptible, and that he was now thoroughly humbled. He asked to be allowed to apologize in the hope that his contempt would be purged.

8

The Official Solicitor arranged at once for Counsel to be instructed, with the result that the appeal has come to this Court.

9

The first point is whether the Judge had any jurisdiction to commit Balogh summarily for contempt. The Judge was sitting in the new Crown Court. It was suggested that this Court has not the wide jurisdiction which was previously exercised by the Judges of Assize, but only a narrower jurisdiction controlled by Rules of Court.

10

THE JURISDICTION OF THE CROWN COURT

11

The Crown Court is a superior Court of Record (section 4(1) of the Courts Act 1971). In regard to any contempt of Court, it has the like powers and authority as the High Court (section 4(3)). The High Court has the same powers and authority as the Superior Courts used to have, and as the Judges of Assize had, see section 18 of the Judicature Act, 1925. The procedure is, however, governed by Order 52 of the Rules of the Supreme Court. Mr. Vinelott, Q.C., for Mr. Balogh, submitted that, under those Rules, this contempt of Court (if it were one) could only be punished by application to the Divisional Court; and that the Judge here had nojurisdiction to punish it himself. The Judge, he said, had only power to commit for contempt, "committed in the face of the Court", see Order 52 Rule l(2)(a)(ii). That expression, he said, was confined to cases where "all the circumstances of the alleged contempt are in the personal knowledge of the Court", see McKeown v. The queen (1971) 16 D.L.R. (3rd) 390 at page 408 by Mr. Justice Laskin, and Borrie and Lowe, The Law of Contempt, page 7. The Judge in this case had no personal knowledge of the circumstances. He only knew what was reported to him. So Mr. Vinelott said that the contempt was not committed "in the face of the Court".

12

Mr. Slynn submitted that the answer to this point was to be found in Order 52, Rule 5. It preserves the power of the High Court "to make an order of committal of its own motion against a person guilty of contempt of Court". That is a good answer, so far as it goes; but it leaves open the question: In what circumstances can the High Court make an order "of its own motion"? In the ordinary way the High Court does not act of its own motion. An application to commit for contempt is usually made by motion either by the Attorney-General or by the party aggrieved, see The queen v. Gray (1900) 2 Q.B. 36; Attorney-General v. Times Newspapers (1973) Q.B. at page 737 in this Court by me as corrected in the House of Lords (1973) 3 W.L.R. at page 303 by Lord Reid, and at page 319 by Lord Diplock; page 333 by Lord Cross of Chelsea: and such a motion can, in an urgent case, be made ex parte, see Warwick Corporation v. Russell (1964) 1 W.L.R. 613. All the cases cited in the notes to Order 52 Rule 5 are of motions by some one ex parte. None of them tells us when the High Court can make an order of its own motion. All I find in the books is that the Court can act upon its own motion when the contempt is committed "in the face of the Court". Chief Justice Wilmot in his celebrated opinion in The King v. Almon (1765) Wilm. at page 254 said:

13

"It is a necessary incident to every Court of Justice to find and imprison for a contempt to the Court, acted in the face of it."

14

Blackstone in his Commentaries, Book IV page 288, said: "If the contempt is committed in the face of the Court, the offender may be instantly apprehended and imprisoned, at the discretion of the Judges." Oswald on Contempt 2nd edition page 23, said: "Upon contempt in the face of the Court, an order for committal was made instanter" and not on motion. But I find nothing to tell us what is meant by "committed in the face of the Court". It has never been defined. Its meaning is, I think, to be ascertained from the practice of the Judges over the centuries. It was never confined to conduct which a Judge saw with his own eyes. It covered all contempts for which a Judge of his own motion could punish a man on the spot. So "contempt in the face of the Court" is the same thing as "contempt which the Court can punish of its own motion". It really means "contempt in the cognizance of the Court".

15

Gathering together the experience of the past, then whatever expression is used, a Judge of one of the Superior Courts or a Judge of Assize could always punish summarily of his own motion for contempt of Court whenever there was a gross interference with the course of justice in a case that was being tried, or about to be tried, or just over — no matter whether the Judge saw it with his own eyes or it was reported to him by the officers of the Court, or by others — whenever it was urgent and imperative to act at once. This power has been inherited by the Judges of the High Court and in turn by the Judges of the Crown Court. To show the extent of it, I will give some instances:-

16

(i) In the sight of the Court. There are many cases where a man has been...

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