Re v Stephen Yaxley-Lennon (aka Tommy Robinson)
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon CJ |
| Judgment Date | 01 August 2018 |
| Neutral Citation | [2018] EWCA Crim 1856 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201802593 A2, 201802867 C4, 201802865 C4 & 201802864 C4 |
| Date | 01 August 2018 |
[2018] EWCA Crim 1856
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT CANTERBURY
AND CROWN COURT AT LEEDS
Her Honour Judge Norton and His Honour Judge Marson QC
S20170102 & S20180448
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RIGHT HONOURABLE The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
THE HONOURABLE Mr Justice Turner
and
THE HONOURABLE Mrs Justice McGowan
Case No: 201802593 A2, 201802867 C4, 201802865 C4 & 201802864 C4
Jeremy Dein QC and Kerrie Ann Rowan (instructed by Carson Kaye Solicitors) for the Appellant
Louis Mably QC as Advocate to the Court
Hearing dates: 18 July 2018
Judgment Approved
To secure a fair trial for some accused of crime it is from time to time necessary for judges to make an order under section 4(2) of the Contempt of Court Act 1981 (“the 1981 Act”) postponing the reporting of the proceedings before them. In doing so they must balance the interests of justice in securing a fair trial to an accused together with other interests, including free speech and open justice. Such orders are not lightly made and are subject to the application of strict rules most recently discussed in R v Sarker [2018] EWCA Crim 1341 between paragraphs [20] and [36].
The appellant, Stephen Yaxley-Lennon, who uses the pseudonym Tommy Robinson for political purposes, was committed to prison for a total of 13 months on 25 May 2018 for breach of an order made under section 4(2) of the 1981 Act. The order had been made by His Honour Judge Marson QC in at Leeds Crown Court in a trial proceeding before him. In doing so the judge activated a suspended committal order of three months detention imposed by Her Honour Judge Norton at Canterbury Crown Court on 22 May 2017 for contempt of court. That arose from his filming in the precincts of the court.
The appellant initially appealed in time against only the sentence imposed in Leeds, but in due course expanded the appeal to seek extensions of time to appeal against the findings of contempt in both Leeds and Canterbury, despite his having accepted on both occasions that he was in contempt of court, and also against the sentence imposed in Canterbury. He contends that both sets of proceedings against him were unfair and, in particular, failed to comply with the requirements of the Criminal Procedure Rules [“the Rules”] governing applications to commit for contempt of court. He suggests that the sentences individually and cumulatively were too long.
On his behalf, Mr Dein QC points out that the records of proceedings in both Crown Courts treat the sentence as if it were one of imprisonment made under the Criminal Justice Act 2003 following conviction for a criminal offence with the consequences that entails. Those include the regime under which the prisoner is held in prison and release provisions. Those committed for contempt are entitled to be released having served half of the sentence and, by contrast with those sentenced for criminal offences, without condition or licence: section 258 of the Criminal Justice Act 2003. The court records are also inaccurate in referring to “conviction” as if the contempts were criminal offences. We accept that they should refer to findings of contempt and that the contemnor was committed to prison for the period in question (or record the suspended committal order). These criticisms, whilst justified, are of form not substance. A victim surcharge was also imposed which has no application to findings of contempt.
Appeals to this Court against any order or decision of a court in the exercise of its jurisdiction to punish for contempt of court are brought under section 13(2) of the Administration of Justice Act 1960. Leave is not required, but the appeal must be brought within 28 days (section 18A of the Criminal Appeal Act 1968) unless time is extended by the court. The challenge to the Leeds finding of contempt is 20 days out of time. With respect to all issues arising from the Canterbury committal, the applications are over a year out of time. The approach to an extension of time to bring an appeal under section 13(2) should be no less rigorous that when considering a similar question in a criminal appeal.
The issues on the findings of committal
Part 48 of the Rules governs the procedure to be followed by the Crown Court when it deals with the conduct of a person alleged to have acted in contempt of court. The appellant contends that both the Crown Court in Canterbury and the Crown Court in Leeds proceeded in breach of the provisions of Part 48 of the Rules.
First, the appellant's central position is that any failure to comply with the provisions of Part 48 is fatal to a finding of contempt, whether or not there has been an admission, and irrespective of its impact on the fairness of the proceedings. A technical or objectively inconsequential failure to comply with the Rules has the same effect as one that goes to the heart of the matter. In the alternative, he contends that even if the Court were to take a less absolutist approach to the consequences of failure to comply with Part 48 of the Rules then, on the facts underlying this appeal, the proper remedy remains to reverse the decisions of the Courts below.
Secondly, the appellant argues that neither court should have proceeded to deal with the alleged contempts in the way they did, that is summarily. The sentence of committal in Leeds was pronounced within five hours of the alleged contempt having occurred; in Canterbury there was an adjournment for two weeks, but still the matter was dealt with summarily rather than being referred to the Attorney General.
Thirdly, the appellant contends that at Leeds he was punished for matters falling outside the scope of his material contempt. The contempt related to the postponement of reporting order made under section 4(2) of the 1981 Act. The judge referred to conduct which did not fall within the scope of the section 4(2) order when sentencing and failed, in the course of the proceedings, to identify specifically or put to the appellant the conduct which he was treating as a contempt of court.
We are grateful to Mr Dein QC for the full arguments advanced in support of the appeal both in writing and orally; and to Mr Mably QC for his comprehensive arguments as Advocate to the Court. For the reasons which follow, we have concluded that the appellant has no legitimate complaint about what occurred in Canterbury Crown Court. However, we are satisfied that the finding of contempt made in Leeds following a fundamentally flawed process, in what we recognise were difficult and unusual circumstances, cannot stand. We will direct that the matter be reheard before a different judge.
The Facts
Canterbury Crown Court
On 8 May 2017, the appellant attended Canterbury Crown Court during the trial of four defendants for rape. The jury had already been sent out to consider their verdicts. There, he carried out filming on the steps of the court and then inside the court building. He did not enter the courtroom itself. He filmed two pieces to camera during the course of which he commented on the trial which he described as being of “Muslim child rapists”. His interest in that trial, and indeed the one in Leeds, was apparently sparked by the ethnicity or religion of the defendants by contrast with the alleged victims. He published the footage he had taken on the internet. By his own admission, he had intended to film the defendants but, in the meantime, his activities had been brought to the trial judge's attention. She took immediate steps to ensure that the defendants were escorted out of the building by another exit. On learning this, the appellant referred in his recordings to “going round their house” with the intention of capturing the defendants on camera there. Notices throughout the court building had made it clear that filming or taking photographs at court amounted to an offence and might also amount to a contempt of court. Furthermore, the appellant had been told by security staff to stop filming and that if he continued he might be committing an offence or be in contempt of court.
He was arrested at his home on 10 May 2017 and appeared later that day back at Canterbury Crown Court. Contempt proceedings were initiated against him but were adjourned until 22 May 2017 on which occasion he was represented by both leading and junior counsel. The judge emphasised that the contempt hearing was not about free speech, legitimate journalism or whether one political viewpoint was right or better than another. It was about ensuring that a trial could be carried out justly and fairly. The appellant had used pejorative language in his broadcast which prejudged the outcome of the case and could have had the effect of substantially derailing the trial. The appellant apologised to the court. The contempt, however, arose from filming in the precincts of the court. The judge considered that the seriousness of the contempt called for a custodial sentence. She committed the appellant to a period of three months' imprisonment but suspended for eighteen months. She took into account the risks that the appellant might face if required to serve a term of immediate custody, given his well-known views which are deeply offensive to many. The judge made it clear that if he were to embark upon similar conduct in future it was likely that he would face immediate custody.
As we have noted, the proceedings resulted in the generation of documents which were appropriate to a criminal conviction but not for a finding of contempt. They comprised a certificate of conviction for “taping a court record without permission” and the recording of a sentence of three months' imprisonment suspended for...
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