Terence Patrick Ewing v Crown Court Sitting At Cardiff & Newport Director of Public Prosecutions (1st Interested Party) Maurice John Kirk (2nd Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mr Justice Sweeney |
| Judgment Date | 08 February 2016 |
| Neutral Citation | [2016] EWHC 183 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4249/2014,CO/4249/2014 |
[2016] EWHC 183 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Burnett
Mr Justice Sweeney
Case No: CO/4249/2014
and
Terence Ewing (in person)
Ben Douglas-Jones (Instructed by the Crown Prosecution Service) for the 1 st Interested Party
Maurice Kirk ( in person)
Louis Mably (Instructed by the Government Legal Department) as Advocate to the Court
Hearing date: 2nd February 2016
Introduction
This claim for judicial review concerns the circumstances in which it is appropriate for a Crown Court judge to order that members of the public may not make notes of a hearing otherwise being held in public.
The claimant, Terence Patrick Ewing, is a "vexatious litigant". In December 1989, on the application of the Attorney General pursuant to Section 42 of the Supreme Court Act 1981, he became the subject of a Civil Proceedings Order. That was because he had "habitually persistently and without any reasonable grounds" instituted vexatious civil proceedings and made vexatious applications in civil proceedings. One consequence of being the subject of an order under section 42 is that the vexatious litigant may not issue proceedings without leave of the High Court. On 21 January 2015 Gilbart J gave permission to the claimant to issue these proceedings. On 15 May 2015 Kenneth Parker J granted permission to the claimant to apply for judicial review of decisions made by His Honour Judge Crowther QC during appeal proceedings in Cardiff Crown Court on 7 and 8 April 2014 and (adjourned part-heard to Newport Crown Court) on 30 June and 1 July 2014.
The judge directed that no member of the public could make notes of the proceedings without his permission and twice ruled that the claimant could not make notes.
The Facts
Those appeal proceedings were brought by Maurice John Kirk, the second interested party, in respect of his conviction for common assault at the Cardiff and Vale Magistrates' Court on 10 December 2013. The assault occurred on 21 September 2013. The victim was David Rogan, a prison officer serving at HM Prison Cardiff. Mr Kirk had been on remand in custody at Cardiff Prison until 2 September 2013 and apparently returned on 21 September to retrieve his passport. The detail of the incident and conviction do not need to be rehearsed. It is sufficient to record that following the four day hearing, Mr Kirk's appeal against conviction was dismissed. He appealed further by way of case stated to the High Court. That appeal was dismissed by Gilbart J. However, the underlying context provides the background to these proceedings and the claimant's interest in Mr Kirk's appeal. Mr Kirk has been the defendant in many prosecutions in South Wales and has been in conflict with "the authorities" for many years. Pursuing and defending court cases have become a dominant feature of his life. The papers contain many references to his website where (apparently) he details what he sees as his endless struggle against injustice. Mr Kirk's habit is to appear unrepresented and, unlike a professional advocate who owes duties to the court to conduct proceedings with reasonable dispatch and take only points reasonably arguable, Mr Kirk's approach is to take as long as possible, to raise endless technical objections and seek to use one set of proceedings to assist him in another. The judgment given by the judge at the end of the appeal suggests that Mr Kirk deliberately fomented the incident which led to this prosecution as he suggested himself "to make a fuss". He made "many ancillary applications" during the case, in particular futile and time-wasting applications for disclosure. The transcripts provide strong support for the proposition that he was manipulating the process and being deliberately difficult and contrary. He made lengthy and irrelevant submissions about his long-standing disputes with the South Wales Police and a forensic clinical psychologist. He made a hopeless application for the case to be dismissed at half time and followed that with an application for a stay as an abuse of process. The court concluded that he had pursued the appeal, which Mr Kirk himself described as "irrelevant", as a "means to acquire information for his other long running disputes". Mr Kirk disputes this analysis.
From the outset it was apparent that the appeal was being conducted by a difficult litigant and that it would be far from straightforward.
There was a pre-appeal hearing on 27 March 2014, which was not attended by the claimant. The appeal was fixed for hearing on 7 April. There was reference during the pre-appeal hearing to another unconnected appeal against a conviction for breach of a restraining order which Mr Kirk was pursuing in Bristol Crown Court. He had apparently arrested prosecuting counsel involved in the case. Mr Kirk mentioned a third appeal and two jury trials, although without detail. In the case stated for consideration by the High Court following the appeal there is reference to a "convention that members of the public require permission before taking notes". It was said that the convention exists "so as to prevent forbidden or prejudicial material from entering the public domain". That case refers to Mr Kirk's website "dedicated to his Court appearances" and that the judge had indicated on 27 March that "note taking by members of the public would not be allowed without permission having been granted".
The appeal was heard by the judge sitting with two magistrates. On 7 April the judge noticed someone in the public gallery making notes and indicated that he would hear any application to do so. He added
"[H]enceforth any taking of notes without permission will be regarded as a contempt of court and will be dealt with as such."
Mr Kirk asked that someone be allowed to make notes for him. The court agreed that one of his supporters could come forward to make notes. It ruled that the notes should be given to Mr Kirk. They were not to leave the court room except with Mr Kirk. The problem Mr Kirk had indicated with making his own notes was that he did not have any glasses with him. He was in custody for another matter at this stage. It was in these circumstances that the claimant found himself making notes on behalf of Mr Kirk. Later that afternoon Mr Kirk's glasses were located (he had hidden them in the spine of a file) and he asked for pen and paper. The judge told the claimant to stop making notes and return to the public gallery. As a result, Mr Kirk changed his mind about making his own notes but the judge indicated that no one else in court would thereafter make notes for him.
The claimant did not attend the appeal on 8 April. The judge repeated that no one was to make notes without his permission and added that "transcripts are available to anyone who wants them and for a modest fee".
The claimant wrote a letter threatening judicial review of the decisions of the court relating to note-taking. The court replied on 29 April 2014:
"1. Mr Kirk applied for the Court's permission that a member of the public be allowed to assist him by taking notes.
2. Mr Kirk made that application upon the basis that he did not have his glasses, and could not see to write.
3. That application was granted and a member of the public (who may have been Mr. Ewing) sat in the well of the court and took notes.
4. At 15:32pm of thereabouts, Mr. Kirk volunteered that his glasses were in fact amongst his property in the cells, and he retrieved them.
5. Thereafter he made his own notes, and the note-taker withdrew from court.
6. There was not a direction that no member of the public should take notes; rather that no member of the public should take notes without having asked the Court's permission.
7. This is a conventional rule and one which is designed to ensure that no prejudicial material leaves the Court through an inexperienced reporter.
8. It is not a rule which applies to representatives of the media and the Court was open.
9. At a previous hearing in Mr. Kirk's case, a member of the public had repeatedly sought to take notes covertly and without asking permission. He was warned that to continue to do so could constitute a contempt in the face of the Court — i.e. disobedience to a direct instruction.
10. No direction has been made that note-taking is forbidden. HHJ Crowther QC would expect that the Court's permission be asked in the usual way; and if Mr. Kirk indicates the notes of another are likely to help him conduct his case, then such permission would be given." (Typographical errors corrected)
The transcript in fact shows that after Mr Kirk retrieved his glasses during the afternoon of 7 April the judge directed that "no one else in court will take notes." The claimant attended the adjourned hearing on 30 June. The judge again made it clear that notes could not be taken without permission. A different friend of Mr Kirk, Jeffrey Matthews, asked for and was given permission to make notes having explained that he was there to assist Mr Kirk. He confirmed that he did not intend to use them for any purpose other than to assist Mr Kirk. Later that same day the judge noticed that the claimant was making notes and asked why he had not sought permission to do so. The claimant answered that he was "a member of the public and, as far as I am aware, there [are] no legal restraints on...
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