HM Attorney General v Dowie
| Jurisdiction | England & Wales |
| Judge | BEAN,PETER JACKSON,ASPLIN LJJ |
| Judgment Date | 30 November 2022 |
| Court | Court of Appeal (Civil Division) |
Contempt – Recording Children Act proceedings – Publishing recordings by uploading to YouTube – Whether intention to interfere with administration of justice required – Appropriate sentence – Consecutive sentences – Costs – Ability to pay – Open court requirement.
The father was involved in proceedings about his two children in the family court. These concluded in September 2017 and an order was made under s 91(14) of the Children Act 1989, providing that the father could not apply for an order regarding the children without the court’s permission, to last for 18 months. A non-molestation order was also made in favour of the mother and an injunction order prohibited the father from publishing images of the mother and children. The father was imprisoned for breaches of this order and the Crown Court imposed a restraining order on the father on 29 November 2019, under the Protection from Harassment Act 1997.
In June 2020, the father posted a video to YouTube titled ‘An Open Message To His Honour Judge Brown: Here Is The Evidence’. It included recordings from the private law proceedings involving cross-examination by the father of a psychologist, cross-examination of the Cafcass officer by the father and exchanges between the father and the district judge. Shortly afterwards, the father posted a second video titled ‘False Allegations In The Family Court’. It included further recordings from the same proceedings, involving the district judge asking questions of the mother and cross-examination of the mother by the father, including about an allegation of rape.
Once she became aware of it, the designated family judge notified the Attorney-General about the first video, stating that she considered it to be in breach of the Administration of Justice Act 1960, the Contempt of Court Act 1981 and s 97(2) of the Children Act 1989.
On 1 July 2020, the father posted a third video titled ‘CAFCASS And The Destruction Of My Children’s Rights’. This included a recording of evidence-in-chief given by the Cafcass officer.
On 7 August 2020, having seen all three videos, the Attorney General wrote to the father, who replied on 2 September 2020, accepting that he had made a series of recordings of hearings, claiming that he had reported himself to the police and that a judge had given him permission to use the recordings (such permission had not in fact been given).
In March 2021, the Attorney General applied for permission to make an application for an order committing the father to prison for contempt arising out of his alleged interference with the administration of justice.
On 12 August 2021, the father was convicted at the Crown Court on an eight-count indictment concerning breaches of the non-molestation order and the restraining order. He was sentenced to eight years’ imprisonment.
On 22 November 2021, a High Court judge granted permission for the Attorney General to bring committal proceedings.
On 4 January 2022, the Attorney General wrote to the High Court judge confirming that she would proceed with the contempt prosecution and explaining that she considered this course to be proportionate. She added that the Solicitor General considered the prosecution to be in the public interest. The section addressing the Solicitor General’s view included, as a factor supporting it being in the public interest, that ‘a ruling by the High Court on this [matter] could be provided to YouTube with a request that these posts be removed’.
At the hearing, the father asked to cross-examine the legal adviser to the Attorney General’s office, but the judge refused to allow him to do so, on the basis that the adviser’s evidence related only to the factual background and the father was not disputing any of the facts within the adviser’s affidavit. The judge went on to find that the father was in contempt of court, expressing the view that it was necessary for the Attorney General to prove beyond reasonable doubt that an alleged contemnor had intended to interfere in the due administration of justice, but finding as a fact that the father had so intended.
The sentencing hearing had to be adjourned, because of a failure to list the case in open court at the relevant court centre (it was listed, but in another court centre) in breach of Practice Direction: Committal/Contempt of Court – Open Court, of 26 March 2015 (as amended on 20 August 2020). At the adjourned hearing the father was sentenced to eight months’ imprisonment, consecutive to his current term of imprisonment.
The titles of both judgments stated that the hearings had taken place in public and in the first judgment the judge expressly directed himself on the procedural requirement that a committal hearing must be listed publicly and held in open court.
The Attorney General applied for her costs of the application, not including solicitor’s fees. Form N260 set out counsel’s fees in the sum of £9,498.33 (which did not include the costs of the aborted sentencing hearing). No evidence was provided or requested about the father’s ability to pay. The judge required the father to pay the Attorney General’s costs, summarily assessed at £9,400.
The father appealed on various grounds, including that: the committal hearing had been wrongly said to have taken place in private in a preamble spoken by the judge’s clerk at the start of the hearing; that he had wrongly been denied the chance to cross-examine the legal adviser to the Attorney-General’s office; that there had been a breach of the presumption of innocence and/or judicial bias; that the sentence was manifestly excessive; that it had been wrong to impose a consecutive sentence; and that it had been wrong to make a costs order. At the appeal hearing, the father appeared via CVP link from prison; he announced that he was pursuing the appeal only in relation to the costs order, but did not formally withdraw the other grounds of appeal. The Attorney-General invited the court to uphold the decision, but also to rule on whether an intention to interfere with the administration of justice was a necessary component of the mens rea for contempt under s 9(1) of the Contempt of Court Act 1981 and under s 12 of the Administration of Justice Act 1960. The Attorney-General submitted that it was, contrary to what the judge had said, enough for the recording or publication to have been deliberate and to have been done in the knowledge of the statutory prohibitions.
Held, allowing the father’s appeal only in relation to the costs order and making a new costs order—
(1) The court had not heard argument about the mens rea element of contempt because the judge’s finding that the father had in fact intended to interfere with the administration of justice had made the judge’s ruling on mens rea unnecessary to his decision (ie obiter) and a ruling on this issue could similarly make no difference to the outcome of the appeal (so anything this court said about it would be obiter as well). Furthermore, neither the judge nor this court had heard full legal submissions on the point. Accordingly, while the Attorney General’s argument appeared to the court to have considerable substance, it was best for it to be adjudicated upon after full argument in a case where the point might affect the outcome (see [27], [28], below).
(2) The committal and sentencing hearings had both been in public. In the absence of a transcript it was not possible to confirm what the judge’s clerk had said on the first occasion, but any inadvertent statement of that nature would clearly be of no consequence (see [31], below).
(3) The judge’s case management decision not to allow the father to cross-examine the legal adviser to the Attorney-General had not been a breach of the father’s art 6 rights under the European Convention on Human Rights, for the reasons given by the judge. This case management decision had not only been lawful but also obviously correct (see [34], [35], below).
(4) The court rejected the father’s claim that the email from the Attorney General to the judge on 4 January 2022 had been improper, pre-judging the father’s guilt, and that it was an attempt at illegal behaviour by the Attorney General because the judge had no jurisdiction over YouTube. The court also rejected the allegation that correspondence between the Attorney General and the judge was, in itself, evidence of judicial bias. The Attorney General had communicated with the court in terms fully set out by the judge. There had been nothing underhand or improper in the letter, which did not assume the father’s guilt or suggest that the court had any jurisdiction over YouTube. Overall, far from exhibiting bias, the judge had been impeccably correct in his treatment of the application (see [36], [37], below).
(5) Pernicious and persistent contempt of this nature would almost always warrant a custodial sentence. The maximum sentence for contempt of court was two years. Here there were a number of aggravating features and very little mitigation. There could be no possible complaint about the length of the sentence (see [39], below).
(6) The judge had been...
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