1 August 2018
R v Stephen Yaxley-Lennon (aka Tommy Robinson)
On appeal from the Crown Court sitting at Canterbury and
Leeds
Judges: The Lord
Chief Justice, the Rt Hon The Lord Burnett of Maldon; The Hon Mr Justice
Turner; The Hon Mrs Justice McGowan DBE.
This summary in not
part of the judgment
BACKGROUND TO THE APPEALS
The appellant attended Canterbury Crown Court on 8 May 2017
during the trial of four defendants for rape. The jury had been sent out for
deliberation. The appellant carried out filming with a commentary on the steps
of and inside the court building, although he did not film in the courtroom
itself. He had intended to film the defendants but the trial judge had been
made aware of his activities and had diverted the defendants through another
exit. Notices throughout the court building made it clear that filming or
taking photographs at court was an offence and might amount to contempt of
court. The appellant had also been told to stop filming by security staff and
warned that if he continued he might be committing an offence or be in contempt
of court. He was arrested on 10 May 2017 and brought before Canterbury Crown
Court. Proceedings were adjourned until 22 May 2017 when the judge explained
that his filming could have the effect of substantially derailing the trial.
The appellant was represented by leading and junior counsel and apologised to
the court. The judge considered that the seriousness of the contempt called for
committal and committed the appellant to three months’ imprisonment suspended
for 18 months.
The appellant attended Leeds Crown Court on 25 May 2018. He
recorded a video of himself standing outside the court building which he
livestreamed via Facebook. The duration of the video was approximately 1.5
hours and concerned a trial which was the subject of a postponement order under
s.4(2) of the Contempt of Court Act 1981 and its broader circumstances as part
of a series of trials. That order prohibited the publication of any report of
the proceedings until after the conclusion of that trial and a related trial
which was yet to take place. The jury had retired for deliberation. The video
was recorded near the entrance used by defendants and jurors. In the video the
appellant referred to the trial, the identity of the defendants, the charges
against them and to charges which had not been proceeded with against some of
the defendants, and he confronted some of the defendants as they arrived at
court. The judge was alerted to the appellant’s conduct and he was brought into
court where the judge viewed part of the video in the presence of the
appellant. The appellant offered to delete the video from Facebook, which the
judge required as he was concerned that, if jurors saw it, it might derail the
trial and affect the trial yet to start. The judge initiated proceedings for
contempt of court against the appellant. Representation was found for the
appellant during a 33 minute adjournment. Counsel indicated to the judge that
they anticipated submissions of mitigation rather than a defence to the
contempt. The particulars of the contempt were not put to the appellant and the
appellant was not given the opportunity to admit or deny the contempt. Some
mitigation was advanced on behalf of the appellant and the judge proceeded on
the basis that the appellant had admitted contempt. The judge committed the
appellant to ten months’ imprisonment (reduced from fifteen months for the
admission) and activated the suspended committal imposed at Canterbury Crown
Court.
JUDGMENT
The judgment of the Court is to dismiss the appeal in
respect of the committal for contempt at Canterbury Crown Court and to allow
the appeal in respect of the committal for contempt at Leeds Crown Court. The
appellant is granted bail and the matter of contempt at Leeds Crown Court is
remitted to be heard again.
The records are updated to address errors of form at the
courts below.
REASONS FOR THE
JUDGMENT
Canterbury
The application was brought over a year out of time [5]. The
appellant had not previously disputed the finding or sentence imposed at Canterbury
Crown Court. The appellant’s complaints were that: (i) he was not served with a
written statement containing the particulars required by Crim PR 48.7 [51];
(ii) that the judge failed to make plain whether she was exercising powers
under s.41 of the Criminal Justice Act 1925 or her inherent jurisdiction in
respect of criminal contempt [56]; and (iii) the judge had, in passing the
suspended committal order, used terminology of criminal sentencing rather than
committal for contempt [57].
As to (i), the appellant had been served with four witness
statements, two of which were made by security staff and two by members of the
public, relating to the appellant’s activities on the day of the alleged
complaint [51]. No complaint was made at the adjourned hearing as to lack of
clarity about the nature of the allegations which the appellant faced; late
disclosure after the appeal hearing revealed that counsel had taken a tactical
decision not to ask the judge spell out in full the specific actions
constituting contempt [52-54]. Accordingly, there had been no real prejudice to
the appellant in the failure to particularise the contempt [55]. Whilst the
judge had made reference to s.41 CJA 1925 in her remarks, the matter did not
proceed in the Crown Court as a summary prosecution for a breach of s.41.
Instead, the judge had expressly stated that she found clear evidence of
contempt. The fact that she supplemented her finding of criminal contempt with
observations that the facts could also give rise to an offence under s.41 CJA
1925 does not invalidate her conclusions on criminal contempt [56]. Lastly, the
judge had indeed used terminology of criminal sentencing and wrongly purported
to pass a “sentence”. However, it was conceded that a court has power to
suspend a committal to prison for contempt. This is undoubtedly what the court
was seeking to achieve and it was what was understood by those representing the
appellant at the time. It was also plain from the content of the broadcast
outside Leeds Crown Court that the appellant understood that a second finding
of contempt of court within 18 months of the Canterbury offence would risk
implementing the suspended period of imprisonment [57]. There was no merit in
the underlying proposed appeal. Time would not be extended. The court directs
that the record be updated to use the language of committal and not criminal
sentencing [59].
Leeds
The application was brought 20 days out of time [5]. The
appellant’s complaints were that: (i) the judge should not have proceeded as
quickly as he did, initiating and completing proceedings that day [60]; (ii) no
particulars of contempt were put to the appellant [64]; and (iii) insufficient
mitigation was put forward as a result of the haste [68].
The court agrees that the judge
should not have commenced the hearing of contempt proceedings that day.
Once the appellant had removed the video from Facebook, there was no longer
sufficient urgency to justify immediate proceedings [62]. In those
circumstances it would have been preferable to adjourn, as had happened in the
Canterbury proceedings. No particulars of the
contempt were formulated or put to the appellant. There was a muddle over the
nature of the contempt being considered. In both the short explanation
given by the judge of the general nature of the alleged contempt and the
sentencing remarks, there was reference to matters that could not been a breach
of the section 4(2) order. [64]. The failure to follow Part 48 Crim PR was more
than technical [66]. There was no clarity about
what the appellant was admitting or on what basis he was being sentenced.
Finally, further difficulties arose from the limited opportunity that counsel
had to investigate mitigation [68]. There was little else which counsel
could have done within the constraints under which he was working. The level of
detail which could be provided to the court was very limited and there was no
opportunity to obtain character references [69]. A sense of proportion must be
retained. Where a custodial term of considerable length is being imposed, it
should not usually occur so quickly after the conduct which is complained of
[69]; a sentence of committal to immediate custody had been pronounced within
five hours of the conduct taking place [8].
The order at Leeds Crown Court
was also erroneously drawn up to suggest the appellant had been convicted of a
criminal offence rather than having been committed for contempt of court [70].
Errors like this have serious consequences upon the classification of
prisoners, resulting in the deprivation of privileges [74] and release on
licence [75]. In this case, it also resulted in the erroneous imposition of a
victim surcharge [76].
The finding of contempt in Leeds is quashed [77]. All
consequential orders fall away. The court remits the matter of alleged contempt
at Leeds Crown Court to be heard again before a different judge [78]. The
appellant is granted conditional bail pending the rehearing [86].
General guidance is given on contempt of court procedure
[79-82].
References in square
brackets are to paragraphs in the judgment.
Excerpt from the full judgement:
Leeds
60. A central
criticism advanced on behalf of the appellant of the proceedings in Leeds is
that the judge was wrong to proceed to deal with the contempt as quickly as he
did. We consider that there is merit in this point. In contrast to the
procedure followed in Canterbury, where the appellant had over a week to secure
representation and to prepare his response to the allegations against him, the
appellant at Leeds was commencing a term of imprisonment of thirteen months
within five hours of the conduct complained of. Such haste gave rise to a real
risk that procedural safeguards would be overlooked, the nature of the contempt
alleged would remain inadequately scrutinised and that points of significant
mitigation would be missed. Those risks materialised.
