Haw and another v City of Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thomas |
| Judgment Date | 12 December 2007 |
| Neutral Citation | [2007] EWHC 2960 (Admin) |
| Docket Number | Case No: CO/5019/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 December 2007 |
[2007] EWHC 2960 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thomas and
Mr Justice Gross
Case No: CO/5019/2007
Mr Guy Vassall-Adams (instructed by Bindman & Parters ) for Mr Haw
Ms Catrin Evans (instructed by Treasury Solicitor ) for the Respondent
Mrs Tucker appeared as a litigant in person
Hearing dates: 28 November 2007
1. This is the judgment of the court.
The jurisdictional issue to be determined
2. On 29 March 2007 the appellants, Mr Brian Haw and Ms Barbara Tucker, were convicted of contempt of court contrary to s. 12 of the Contempt of Court Act 1981 at the City of Westminster Magistrates' Court by District Judge Daphne Wickham. Mr Haw was fined £250 and Mrs Tucker £50. Both were ordered to pay costs of £50. The case against them was that on 26 March 2007 they had wilfully interrupted proceedings in the face of the court.
3. On 12 April 2007 the appellants appealed to the Southwark Crown Court on the grounds that their actions on 26 March did not amount to contempt of court, either in fact or in law.
4. The question was immediately raised at Southwark Crown Court as to whether an appeal lay to that court on the issue of conviction. As we shall endeavour to explain, in the light of some observations in a previous decision of this court and the lack of any authoritative decision, there is a debated issue as to the correct route of appeal for a person convicted and sentenced in a Magistrates' Court under s.12 of the Contempt of Court Act 1981. The appellants also filed a notice of appeal to this court on 18 June 2007; directions were subsequently given for the issue of jurisdiction to be determined by this court; if it was determined that this court had jurisdiction, then this court should determine whether the appeal was by way of rehearing or review. It is accepted, on all sides, that the appellants acted in time for whichever route of appeal is appropriate.
5. There are, in essence, three possibilities, which we will consider in turn:
i) an appeal to the Crown Court under s.12(5) of the Contempt of Court Act 1981;
ii) an appeal to the Administrative Court under s.13 of the Administration of Justice Act 1960;
iii) an appeal by way of case stated or an application for judicial review to the Administrative Court.
(i) What appeal lies to the Crown Court?
(a) The statutory provisions: s. 12 of the Contempt of Court Act 1981
6. Prior to the Contempt of Court Act 1981, the Magistrates' Courts had no power to punish for contempt in the face of the court. They only had power to order a person to leave the court, to punish disobedience to their orders and to punish recalcitrant witnesses. The power to punish for contempt in the face of the court was given by s.12 of the Contempt of Court Act 1981 which provides (as amended):
“(1) A magistrates' court has jurisdiction under this section to deal with any person who –
(a) wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or
(b) wilfully interrupts the proceedings of the court or otherwise misbehaves in court.
(2) In any such case the court may order any officer of the court, or any constable, to take the offender into custody and detain him until the rising of the court; and the court may, if it thinks fit, commit the offender to custody for a specified period not exceeding one month or impose on him a fine not exceeding £2,500, or both.”
7. The right of appeal was provided by sub-section 5 of s.12 in the following terms (as amended):
“(5) Section 135 of the Powers of Criminal Courts (Sentencing) Act 2000 (limit on fines in respect of young persons) and the following provisions of the Magistrates' Courts Act 1980 apply in relation to an order under this section as they apply in relation to a sentence on conviction or finding of guilty of an offence; and those provisions of the Magistrates' Courts Act 1980 are sections 75 to 91 (enforcement); section 108 (appeal to Crown Court); section 136 (overnight detention in default of payment); and section 142(1) (power to rectify mistakes).”
Section 108 of the Magistrates' Courts Act 1980 provides by subsection (1) as follows:
“A person convicted by a magistrates' court may appeal to the Crown Court –
(a) if he pleaded guilty, against his sentence;
(b) if he did not, against the conviction or sentence.”
8. An appeal at the Crown Court takes place by way of a complete re-hearing of the matter in accordance with long standing customary practice: s.79 of the Supreme Court Act 1981. The prosecutor calls his witnesses, the defendant calls his witnesses and the judge of the Crown Court, sitting with magistrates (usually two), makes a determination completely afresh on the evidence they hear.
9. It might have been thought that there was nothing exceptional in providing a simple route of appeal of this kind to the Crown Court as that is the ordinary route of appeal for convictions in the Magistrates' Courts and the only route where factual issues relating to the conviction are in issue. At first blush that would appear to be the natural meaning of s. 12(5), not least given the cross reference to s.108 of the Magistrates' Courts Act and the scope of that section. Indeed it is clear that this view is a view commonly held: in Lane v Gloucester Magistrates' Court [2006] EWHC 3198 (Admin) this court stated at paragraph 5:
“The Administrative Court office wrote to Mr Lane on 22nd November, almost a week ago, pointing out that the right of appeal against orders made under section 12 of the 1981 Act consists of a right of appeal to the Crown Court under section 108 of the Magistrates' Courts Act 1980, not to this court. That is indeed the position. Section 12(5) of the 1981 Act states that section 108 applies to an order under section 12 and in its turn section 108 creates a right of appeal to the Crown Court. No right of appeal to this court, whether by case stated or in any other form, is created. However, what is possible in these circumstances is to seek permission to begin judicial review proceedings. They are not excluded by any statutory provision. Judicial review may lie if something has gone wrong with the decision-making process, but, as we have explained to Mr Lane this afternoon, it does not provide a means of challenging a decision on its merits which appears to form at least part of what Mr Lane seeks.”
10. Unfortunately, however, the position is not so simple, largely because of some observations made in this court in R v Havant Justices ex parte Palmer (1985) 149 JP 609. The observations (which were expressed by the judge who made them as unnecessary to the decision in that case) pointed to a different interpretation of s.12(5); it was said that s.12(5) was confined to appeals against sentence only and not to appeals against conviction.
11. The correctness of those observations is challenged by counsel for Mr Haw, Mr Guy Vassall-Adams. Miss Catrin Evans who has appeared on behalf of the respondent, instructed by the Treasury Solicitor, has put forward before the court the arguments to the contrary; she has done so in effect as an amicus, as the respondent has taken the position that it is neutral on this issue. We must record our immense indebtedness to them both for the very diligent research they have carried out and for the excellence and clarity of the arguments they have advanced.
(b) The legislative history of s.12
12. Before dealing with the correctness of the observations made in ex parte Palmer, it is, we think, necessary to set out the background to the legislation.
13. In December 1974 a committee under the chairmanship of Phillimore LJ reported on Contempt of Court (Cmnd.5794). At paragraph 25 of that report it was pointed out that Magistrates' Courts in England and Wales had no power to punish disruptive conduct in court, and that there had been recent instances of such conduct. At paragraph 36 they recommended that as Magistrates' Courts dealt with about 98% of all criminal cases in England and Wales, those courts should be given powers to deal with contempt in the face of the court similar to those enjoyed by the County Court. At paragraph 37 they concluded:
“As in the case of superior courts, there should be the safeguard of an appeal which would need to be swift in the case of a custodial sentence. We recommend that appeals should lie to the nearest Crown Court, and that arrangements should be made for dealing with them expeditiously.”
14. It was not until 1980 that a Bill was brought forward to implement those proposals. The provisions with regard to Magistrates' Courts were modelled on powers that had been given to the County Courts on their creation in 1846 and were then contained in Clause 11 of the Bill. On the second reading of the Bill on 19 December 1980 the then Lord Chancellor (Lord Hailsham of Saint Marylebone) outlined the purpose of that clause:
“Clause 11 confers powers on magistrates to punish disruption or contempt in the face of the court and allows appeal up to the Crown Court, as indeed appeals to the Crown Court are universally allowed from magistrates. This follows paragraph 36 of the Phillimore Report but with rather heavier sanctions after six years than Phillimore then recommended.”
15. Clause 11 was considered at the Committee stage on 20 January...
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