HM Solicitor General v Ms Sophie Holmes

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Coulson
Judgment Date10 June 2019
Neutral Citation[2019] EWHC 1483 (Admin)
Docket NumberCase No: QB-2019-000742
Date10 June 2019

[2019] EWHC 1483 (Admin)

IN THE DIVISIONAL COURT

IN THE MATTER OF AN APPLICATION

FOR AN ORDER OF COMMITTAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Coulson

and

Mr Justice Spencer

Case No: QB-2019-000742

Between:
Her Majesty's Solicitor General
Applicant
and
Ms Sophie Holmes
Respondent

Mr Aidan Eardley (instructed by Government Legal Department) for the Applicant

Mr Mark Brookes (instructed by Mohammed Hussain Solicitors) for the Respondent

Hearing Date: 22 nd May 2019

Approved Judgment

Lord Justice Coulson
1

Introduction

1

This is the judgment of the court, to which we have both contributed.

2

By a claim form issued under CPR Part 8 on 4 March 2019, the applicant sought an order for committal against the respondent, following what is said to have been her clear contempt in the face of Bradford Crown Court on 18 October 2018. At the hearing on 22 May 2019, the applicant sought permission to apply for such an order. Despite what ought to have been the straightforward nature of such an application, a number of jurisdictional and procedural issues arose. However, at the end of the hearing, we dealt briefly with those issues and granted permission. We said that we would provide full reasons for our decision in writing: these are they.

3

We shall set out those reasons in the following way. Having set out the Factual Background (Section 2) and the issues that arose at the hearing on 22 May (Section 3), we then answer the questions as to the jurisdiction of the Divisional Court (Section 4); whether permission is required (Section 5); and the applicable test on a permission application (Section 6). Thereafter, we explain briefly why permission was granted in this case (Section 7). There is a short summary of our conclusions at Section 8. We are very grateful to both counsel for their written and oral submissions.

2

The Factual Background

4

During the early hours of the morning of 20 October 2017, Paul Serrant and the respondent were in bed at 18, Hill Top Road, Bradford, the home of Paul Serrant. A number of men arrived on a motorbike and smashed the windscreen of the respondent's car. A large number of shots were then fired into the house from an automatic rifle. Many shots penetrated the living room and kitchen but miraculously no-one was injured.

5

Charges were brought against a man called Michael Webster and two others. Webster was in an “on-off” relationship with the respondent and the prosecution case was that the attack was driven by Webster's jealousy. Neither Serrant nor the respondent were prepared to provide witness statements to the police or assist in any way. In Serrant's case, this may have been because of concerns about his own criminality. Agreed Facts 4–12, which were put before the jury, related to his potential involvement in a number of firearms incidents. It was not known whether, by the time of the trial in October 2018, the respondent's relationship with Webster had resumed.

6

The trial began on 9 October 2018 before His Honour Judge Rose. On 18 October, Webster was being cross-examined by prosecuting counsel about his relationship with the respondent. Suddenly, the respondent, who was in the public gallery, stood up and, ignoring the judge's request to sit down, began to shout. According to the transcript, she shouted:

“I'm Sophie, and the shooter were Jordan Ross, and he already knows. I've admitted it to him. He told it to me. Jordan Ross, and all remember that, yeah? He's in jail for threatening me with a machete.”

It is agreed that the reference to ‘Ross’ was an error on the part of the transcriber and the reference was to Jordon Rawson. This has been confirmed by the judge and DC Roebuck, the officer in the case who was also in court. It is also accepted on behalf of the respondent by Mr Brookes.

7

Following this outburst, the judge sent the jury out. Thereafter, we consider that he acted in an exemplary way, concentrating on the most relevant consideration, namely the fairness of the trial. He said to counsel:

“While, fortunately, we know perfectly well who she is. How do you want to do this, because this is going to be done and it is going to be done properly and it's going to be done in a way that is fair to this man [Mr Webster] who is currently an innocent man in the midst of being cross-examined by the prosecution, so we have to balance everybody's interests here but primarily for the moment the right to a fair trial… I am thinking of the trial. In respect of Sophie Holmes, the court has powers that it can proceed against her. There is no urgency to exercise those powers, save and except the order that I make that she is prohibited from entering this courtroom again unless it is in respect of her own conduct. But you will need to give me chapter and verse before I do anything further about that.”

8

The judge immediately made an order under Section 4(2) of the Contempt of Court Act 1981 prohibiting publication of anything to do with the respondent's outburst. Detailed representations were made by counsel the following day. The judge discharged the jury and ordered a new trial. The retrial could not take place until March 2019. At the end of the retrial, the three defendants were convicted, and significant prison sentences were imposed.

9

The judge referred the question of the respondent's outburst to the Attorney General. For the reasons set out in his referral of 31 October 2018, the judge concluded that this was a better course than dealing with the matter himself.

10

Having considered the papers, on 21 December 2018, the applicant wrote to the respondent outlining the incident and telling her that he was considering whether to bring proceedings against her for contempt of court. A response was sought within 14 days. No response was forthcoming.

11

The Part 8 claim for an order for committal was issued on 4 March 2019. It was served personally on the respondent on 19 March, together with supporting documents and the letter from the court fixing today's hearing. There was no acknowledgement of service, either within the prescribed 14 day period or at all. On 7 May 2019, solicitors now engaged on behalf of the respondent wrote to seek an adjournment on the basis that the respondent would be away on a pre-booked holiday. However, at the hearing on 22 May, Mr Brookes confirmed that the adjournment application was no longer pursued.

3

The Issues

12

A number of issues arose for the court's decision. They were:

(a) Does the Divisional Court have the jurisdiction to deal with this application?

(b) If so, is permission required?

(c) If permission is required, what is the applicable test?

(d) Should permission be granted in this case?

4

The Jurisdiction of the Divisional Court and CPR Part 81

13

The first issue which arises concerns whether or not the Divisional Court has the jurisdiction to deal with this application at all. The issue arises because of the wording of CPR Part 81. It is necessary to set out the law and the procedure in a little detail, in order to explain how and why the jurisdiction is undoubted, and to explain that any uncertainties have been created by infelicitous rule-drafting, rather than anything more significant.

14

From an examination of the authorities and the development of the Rules of the Supreme Court, it is plain that the Divisional Court has always exercised a supervisory jurisdiction in relation to contempts committed in criminal proceedings at first instance, concurrently with the jurisdiction of the judges of Assize, and (since the Courts Act 1971) the judges of the Crown Court. There is a valuable historical analysis in the reported arguments of counsel in Balogh v St Albans Crown Court [1975] 1 QB 73, at page 76–81. See also Short and Mellor, The Practice of the Crown Office (2 nd ed, 1908), at pages 341–346.

15

In Balogh, Lord Denning MR explained that there was a concurrent jurisdiction in respect of a committal for contempt. The trial judge could act on his own motion, but he could also leave it to the Attorney General to make an application to this court. Lord Denning said:

“The power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the court and to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately – so as to maintain the authority of the court – to prevent disorder – to enable witnesses to be free from fear – and jurors from being improperly influenced – and the like…

As I've said, a judge should act of his own motion only when it is urgent and imperative to act immediately. In all other cases he should not take it upon himself to move. He should leave it to the Attorney General or to the party aggrieved to make a motion in accordance with the rules in R.S.C.Ord.52. The reason is so that he should not appear to be both prosecutor and judge: for that is a role which does not become him well.”

At pages 92H–93B, Lawton LJ came to the same conclusion, saying that “contempts which are not likely to disturb the trial or affect the verdict or judgment can be dealt with by a motion to commit under R.S.C.Ord.52, or even by indictment.”

16

This court reached the same conclusion in DPP v Channel 4 Television Co Limited [1993] 2 All E.R. 517, where Lord Woolf referred to this “choice of jurisdiction” and indicated specific limitations on the trial judge's ability to deal with committals for contempt. Similarly, in R v M [2009] 1 WLR 1179, the Court of Appeal (Bean J) said:

“There are two possible ways of dealing with criminal contempt: one by the exercise of the summary jurisdiction, the other by an application to Divisional Court.”

17

The predecessor of CPR Part 81.12 was RSC 52, r.1, introduced in 1965. Quoting it in full, Rule 1(2) provided:

“(2) Where...

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3 cases
  • HM Attorney General v Stephen Yaxley-Lennon
    • United Kingdom
    • Queen's Bench Division
    • 9 July 2019
    ...point has been re-emphasised in a case decided since the permission hearing in this case. Her Majesty's Solicitor General v Holmes [2019] EWHC 1483 (Admin) was a case about contempt in the face of the court, which is expressly covered by Section V of Part 81. The Court had to grapple with ......
  • HM Attorney General v Stephen Yaxley-Lennon
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 9 July 2019
    ...point has been re-emphasised in a case decided since the permission hearing in this case. Her Majesty's Solicitor General v Holmes [2019] EWHC 1483 (Admin) was a case about contempt in the face of the court, which is expressly covered by Section V of Part 81. The Court had to grapple with ......
  • Ocado Group Plc and Another v Raymond John McKeeve
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 8 February 2021
    ...other cases, was concerned with an alleged dishonest statement of truth. In the Divisional Court case of Solicitor-General v Holmes [2019] EWHC 1483 (Admin) the alleged contempt was contempt in the face of the court. The court there considered what the applicable test was in such a context......

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