The assault on Jack Grealish – is 14 weeks’ imprisonment the right sentence?

Posted on March 12, 2019 by thesecretbarrister

I fired off a quick thread last night offering my rough take on yesterday’s conviction and sentence of Paul Mitchell, the Birmingham City supporter who ran onto the pitch during Sunday’s match between Birmingham and Aston Villa and assaulted Villa footballer Jack Grealish. Below are my provisional thoughts.

What were the charges?

Paul Mitchell was charged with battery, contrary to s39 Criminal Justice Act 1988. He was also charged with an offence of encroaching onto a football pitch (presumably s4 Football Offences Act 1991). He pleaded guilty to both offences at his first appearance today before Birmingham Magistrates’ Court, the offences having been committed yesterday. A good live account of today’s court proceedings can be found here.

Why was the case dealt with so quickly?

Many people have remarked on how quickly this case was processed – barely 24 hours between offence and sentence. But this is not unusual where a defendant is arrested, charged with a summary offence (one that can only be tried at the magistrates’ court) and refused police bail. The police have the power to charge this type of battery without needing the Crown Prosecution Service to authorise the charge (see the Director’s Guidance on Charging), so the process is quicker. A defendant charged and kept in police custody will be produced at the magistrates’ court the next day. If a defendant pleads guilty, the court will usually require a Pre-Sentence Report to be prepared by the Probation Service, to make recommendations as to how best deal with the offender. It’s now common for this to be done the same day. Given that the offence was captured from multiple angles by high-definition television cameras, there was little choice but to plead guilty.

What about the sentence? How did the court arrive at 14 weeks?

Mr Mitchell received 14 weeks’ imprisonment, as well as a 10-year football banning order. He was ordered to pay £100 in compensation to Mr Grealish, £135 in prosecution costs and a mandatory £150 Victim Surcharge.

When assessing sentence, the magistrates are required to follow the Sentencing Guideline for Assault. Here it is:

The maximum sentence for battery is 6 months’ imprisonment. (If injury had been caused, it would likely be charged as causing actual bodily harm, which carries a maximum sentence of 5 years). The maximum sentence for going onto the playing area is a fine.

A defendant who pleads guilty at the earliest opportunity – i.e. at his first appearance – is entitled to one third off his sentence. That applies to all defendants, even where, as in this case, the evidence is overwhelming.

This means that the maximum sentence the magistrates could have passed was 17 weeks.

14 weeks is therefore almost as high as they could go.

Looking at the Guidelines, in order to reach this sentence, the magistrates must have put this case in Category 1. This requires a finding of “Greater Harm” and “Higher Culpability”. On its face, it’s not easy to see how they did this (and without full sentencing remarks, we are somewhat in the dark).

There was no injury, and it was a single blow (rather than a sustained or repeated attack), so the only possible feature of Greater Harm was the particular vulnerability of the victim. It might be argued that as a man going about his job surrounded by tens of thousands of excitable spectators and relatively limited security, Mr Grealish qualifies as particularly vulnerable, although it’s a bit of a stretch.

Similarly, the features of “Higher Culpability” don’t immediately recommend themselves. Arguably there was an intention to cause greater harm than was in fact caused, but a single blow without a weapon makes this a tricky argument. Significant premeditation? Doesn’t look like it, unless Mitchell had told others in advance of his plans. Again, we may be left trying to characterise Mr Grealish as vulnerable to get this box ticked.

As for the other aggravating and mitigating features, there hasn’t been a lot of detail provided. The location and timing of the offence are aggravating features (the victim’s place of work in front of a national audience). We don’t know what the Pre-Sentence Report said about Mr Mitchell’s personal circumstances. We know that he had previous convictions for non-violent offences, but it’s not clear what they were and how relevant they were (whether, for example, they related to football). We know that his solicitor expressed remorse on his behalf, and that Mr Mitchell was a father of one with a second child on the way. How these were all balanced is unclear without knowing the magistrates’ full reasons.

I’m loath to draw any firm conclusions without knowing the magistrates’ reasoning, but on its face, it looks as if there would have had to be a fair bit of creative interpretation to get Mr Mitchell into Category 1 and towards the top end.

There is an alternative explanation. The magistrates made clear the need for deterrent sentencing for this kind of offence, and it may be that they held that, even though the offence would ordinarily fall within Category 2 or 3, the circumstances were such that it was in the interests of justice to move outside the category range on the Guideline and into Category 1. This, I’d guess, would be how they would justify the sentence.

The potential for widespread public disorder, as others have pointed out, may well have been a factor which the court treated as seriously aggravating. Context is everything. Those saying “he wouldn’t have got this for a punch in the street” miss the point. This wasn’t the street. It was a deliberate assault involving trespass onto a playing area, calculated to hurt and humiliate a man lawfully going about his job in front of a stadium of thousands and a television audience of millions. I have little doubt that Mr Mitchell has been treated particularly severely because this was a high profile assault; but he deliberately chose to make it high profile. He selected the location and the occasion. Those are aggravating features.

As ever, this whole exercise involves a fair bit of guesswork, because our justice system still struggles to do basic things such as providing a copy of the sentencing remarks in cases of enormous public interest. But that’s my rough take. A stiff sentence, but probably justifiable.

How does this compare to other cases of football spectator violence?

It is difficult and somewhat artificial to compare sentences, but one I’ll mention (because I’ve commented on it before) is the racially aggravated assault on Raheem Sterling. While taking place outside the training ground rather than on the football pitch, this offence involved a much more serious assault, with repeated kicking (characterised by the Guidelines as using a weapon) which caused bruising, and the use of racist language. The offender was sentenced to 16 weeks’ imprisonment (the maximum sentence for racially aggravated battery is 2 years). I wrote at the time that I thought this sentence, based on the reported facts, was lenient, and this case arguably casts it into even starker relief.

Why is the dangerous Anjem Choudary being released onto our streets?

Posted on September 12, 2018 by thesecretbarrister

Anjem Choudary, the Islamist preacher convicted in 2016 of inviting support for Islamic State, is to be released from prison next month, despite being described by prisons minister Rory Stewart as “genuinely dangerous”. How, it has been (not unreasonably) asked, can this be? And what, if anything, can be done about it?

The first rule of Law Club is that you do not talk about Law Club, or at least do not talk about law cases until you have read any available judgment. To this end, the sentencing remarks of Mr Justice Holroyde when passing the 66-month (5 and a half year) sentence on Choudary in September 2016 are essential. They tell you most of what you need to know about the facts and the way in which the judge approached the sentencing exercise. But to supplement them, some further legal background may help.

Any defendant sentenced to a “fixed-term” sentence is automatically released at the half-way point of their sentence. This is automatic (by virtue of s.244 Criminal Justice Act 2003). It doesn’t depend on good behaviour, or successful rehabilitation, or satisfaction of any other condition. Why? Well, this is something covered in some detail in my book, (Chapter 10: The Big Sentencing Con), but the justifications offered are two-fold. First, releasing a defendant on licence means that the authorities have a measure of control over an individual as they reintegrate into society. There are conditions attached to the licence, usually including supervision by the probation service, and if the defendant breaches those conditions or commits (or is even accused of) a further offence, they can be recalled to prison to serve the remainder of their sentence. The second, unspoken reason, is one of practicality and cost. Prison is expensive, and the budget was cut by 40% in 2010. Locking up all or most prisoners for the full terms of their sentence would push our already-overcrowded and ungovernable prisons beyond salvation. Automatic release operates as a valve to relieve pressure on the system. You may not like those reasons, you may consider the latter in particular a darn unsatisfactory justification (I certainly do), but unless and until there is a rush of popular support for vastly expanding the prison budget, or a radical reimagining of how often we reach for custody as a sentence, it’s easy to see the political appeal. Pretend hardened crims are being handed whopping sentences, then let them out early so we don’t actually have to pay for it. It is equally easy to see how the public often feel misled, as automatic release – although often explicitly stated by the sentencing judge – is rarely explained properly in news reporting.

Fixed-term sentences are the most common form of sentence. But they are not the only type. For offenders who are deemed “dangerous” by the courts (“dangerous” defined as posing a “significant risk to members of the public of serious harm” through the commission of further specified offences), other options are available. For the most serious offences, a life sentence is available; for other specified offences, an “Extended Determinate Sentence” (EDS) can be imposed. The effect of an EDS is that a prisoner is not automatically released at the half-way stage of their sentence; instead, at the two thirds point of the custodial term, their case is referred to the parole board. If they can satisfy the parole board that their incarceration is no longer necessary for public protection, they will be released on licence (and there is, after that, a further extended period of licence). So, to give a worked example, let’s say Jim commits a fairly nasty armed robbery and is sentenced to an EDS comprising a custodial term of 10 years and an extended period of licence of 5 years. He will be referred to the parole board at the 2/3 stage of his 10-year custodial term (so after 6.7 years). If he satisfies the parole board, he will be released on licence for the remaining 3.3 years plus the 5-year extended licence period. (Although potentially, following the groundbreaking challenge to a parole board decision to release in the case of John Worboys, such a decision to release may be capable of challenge by interested parties.)

If he doesn’t satisfy the parole board, Jim stays where he is, potentially until he has served the full 10 years, upon which point he will be released on licence for the 5-year licence.

Anyway, back to Anjem Choudary. The judge, when passing sentence, expressed his view that Choudary was dangerous. However, crucially, he also explained this:

Although I have expressed my view as to the likelihood of your continuing to spread your message, and as to your dangerousness, the offence under section 12 is not one to which the provisions of Chapter 5 of the Criminal Justice Act 2003 apply, and the court therefore has no power to impose an extended sentence.

The offence of which Choudary was convicted did not carry an extended sentence. Nearly all terrorism-related offences do, but this rarely-deployed offence contrary to s.12 of the Terrorism Act 2000 is not on the list. Parliament, for whatever reason, did not see fit to do so. This meant that the only option open to the court was a determinate (fixed-term) sentence. The outcome was therefore inevitable from the moment Choudary was charged. There was never any prospect of him receiving anything other than a standard determinate sentence which would see him automatically released at the half-way stage, irrespective of whether he was reformed or, as the case may well be, even more of a danger to the public.

If this sounds highly undesirable, some comfort may be found in this: the government is alert to the gap in the law. The Counter-Terrorism and Border Security Bill proposes adding section 12 (among other terror-related offences) to the list of specified offences which carry extended sentences (H/T @leeofthebailey). But at present, we will have to rely upon the (one would imagine latex-trouser-tight) licence conditions and Choudary’s oversight by the security services to provide sufficient public protection.

Finally, to those wondering why, if Choudary was given a 66-month sentence in September 2016, he is being released now only 2 years later, instead of 33 months later, the answer is again in the sentencing remarks. Choudary had spent some time in custody awaiting trial, and some time on bail on an electronically monitored curfew. A day spent in custody on remand counts as a day towards sentence. A day spent on an electronically-monitored “qualifying curfew” (of at least 9 hours a day) counts as half a day in custody. Again, this is automatic.

The Tommy Robinson judgment – what does it all mean?

Posted on August 1, 2018 by thesecretbarrister

Today the Court of Appeal (Criminal Division) handed down judgment in the appeal of Stephen Yaxley-Lennon (AKA Tommy Robinson), partially allowing the appeal and directing a rehearing at the Crown Court.

What does this mean? Has Tommy been proven innocent? Is this a victory for freedom of speech?

Let’s break it down.

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How did this all start?

Yaxley-Lennon was committed to prison for 13 months on 25 May 2018, after attending a trial at Leeds Crown Court and streaming a live-feed on Facebook in which he broadcasted details of the trial and of the defendants. That particular trial was subject to reporting restrictions imposed by the judge, prohibiting reporting of the details until the conclusion of the trial, and of other linked proceedings. By broadcasting in the way that he did, Yaxley-Lennon was in breach of the reporting restriction, an act which amounts to contempt of court. A year earlier, he had committed a separate contempt of court at Canterbury Crown Court by broadcasting prejudicial material about the case. On that occasion he had been made subject to a suspended sentence of 3 months. On 25 May 2018, when he was found to have committed contempt of court again, he was given 10 months for the new contempt, and the 3 months from Canterbury was “activated” and ordered to run consecutively, making a total period of imprisonment of 13 months.

What is contempt of court?

The reason is straightforward. The priority in every criminal case is ensuring a fair trial. This of course matters not just to the defendant, whose liberty is on the line, but to the witnesses, complainants, victims and public. Prejudicial material – such as televised speculation over whether a defendant “did it”, or orchestrated campaigns by special interest groups seeking to secure one type of verdict for political reasons – could potentially influence a jury. We don’t sequester juries in England and Wales (barricade them in hotels cut off from the world for the duration of trials). They are instead allowed to continue their normal lives, but are given firm directions by judges not to conduct their own research into the case they are trying,

The reason, juries are told, is twofold. Firstly, a jury’s own independent research runs the risk of being unreliable, even more so in the era of fake news. Deciding the case on flawed information risks catastrophic miscarriages of justice. Secondly, it is not fair to the parties. The advocates in court address the jury and make arguments on the evidence. If juries have taken into account their own private research about which the advocates are unaware, the parties are unable to assess or test its reliability, or to address the jury on what their client (either defendant or prosecution) says about it.

Thirdly, strict rules of evidence operate in criminal trials to filter the evidence that juries hear in a case, to ensure it is (a) relevant, (b) reliable and (c) not overly prejudicial to the defendant. It rather defeats the point if as soon as a juror turns on the TV they are confronted by a perma-tanned bozo offering half-baked opinions on the very matters that a judge has ruled a jury shouldn’t be told about.

So nobody can report on criminal trials, is that what you’re saying?

No, far from it. Anything can be reported which is not prejudicial (and which is not subject to reporting restrictions – see below). And if something prejudicial is reported in the course of fair and accurate reporting of an ongoing case, there is a specific statutory defence available to publishers (which includes newspapers, TV and social media users) who can show they were providing “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”. Similarly, publications contributing in good faith to discussions of public affairs or matters of public interest if the risk of prejudice created is merely incidental to the discussion. So, to give a topical example, the media is allowed to discuss and debate the way in which we should deal with the rising incidence of acid attacks, even though there are many such trials ongoing across the country and there is arguably a risk of prejudice in ingraining hostile attitudes among potential jurors. No media outlet has been accused of contempt, and nor is anyone likely to be, for taking part in this general discussion.

So we can see that the law gives considerable latitude to the press and ensures that the media do not shy away from accurate, factual reporting of criminal proceedings, or of discussing matters of public interest. The idea is to balance the importance of open justice with the centrality of ensuring a fair trial.

So is that the only way that contempt of court can be committed? Do you have to be prejudicing proceedings?

Not always. Other contempts are more eclectic, such as the prohibition on taking photographs or moving images inside a court building (or even drawing a picture – court sketch artists have to draw outside the court from memory – section 41 of the Criminal Justice Act 1925).

Then there are contempts which strike at the authority of the court, where there is no requirement that the fairness of proceedings be prejudiced. There are what are referred to as “civil contempts”, where, for example, an order made by a court ordering one party to do something is breached, and the other party complains to the court.

There is also a common law offence of “criminal contempt”, which is defined by the courts as “conduct that denotes wilful defiance of, or disrespect towards the court, or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself.” This might include refusing to answer questions in court, physically disrupting court proceedings, interfering with witnesses or jurors (where not charged as a distinct offence of witness intimidation or perverting the course of justice) or defying a judge’s order. Such as, for instance, a reporting restriction.

Contempt – however committed – carries a maximum penalty of committal to prison for up to two years. Note that slightly tortured phrasing – “committal to prison”, rather than “sentenced to imprisonment”. It’s a distinction which becomes relevant at the appeal.

What is a reporting restriction? I thought you said people are allowed to report fairly and accurately on live criminal cases?

The starting point of our criminal justice system is that justice must be seen to be done. However, the law provides for exceptions to open justice, known generally as “reporting restrictions”. Reporting restrictions apply in a wide range of situations – from automatic restrictions preventing the identification of a complainant in a sexual allegation, to restrictions preventing reporting of Youth Court proceedings, to discretionary restrictions protecting the identity of child witnesses in the adult courts. Further details, if you are interested, can be found here.

One breed of restriction order is something called a “postponement order”, under section 4(2) of the Contempt of Court Act 1981. Postponement orders are not unusual, particularly where there are a series of linked trials – for example, where allegations of drug networks involving 30 defendants are concerned, there will be several trials (it not being physically possible to accommodate 30 defendants in a single courtroom). To avoid jurors having their deliberations contaminated by what they might read or hear about the earlier linked trials, reporting of all of them is often postponed until the end. Where there is a separate-but-related issue, such as a contempt of court involving a third party, this can also be the subject of a section 4(2) order. The test is:

Would a fair, accurate and contemporaneous report of the proceedings (or part thereof) published in good faith create a substantial risk of prejudice to the administration of justice in those or other proceedings?
Is an order postponing the publication of such reports necessary and are its terms proportionate? Would such an order eliminate the risk of prejudice to the administration of justice? Could less restrictive measures achieve the objective?
On the specific facts of this case, does the public interest in protecting the administration of justice outweigh the strong public interest in open justice?

Back to Tommy Robinson – how was he in contempt of court?

He was dealt with for two contempts of court. It helps to take them in turn.

Canterbury

On 8 May 2017, during the course of a rape trial at Canterbury Crown Court involving four (Asian) defendants, Yaxley-Lennon attended court and attempted to film the defendants for an online broadcast entitled “Tommy Robinson in Canterbury exposing Muslim child rapists”. He was thwarted by the judge making arrangements for the defendants and jurors to leave court through alternative routes, and so settled for filming himself on camera, both on the court steps and inside the court building, preaching to his online followers about “Muslim paedophiles”. He was interrupted and told by court staff that recording was prohibited (section 41 of the Criminal Justice Act 1925,), but continued to record, insisting that he had been told by a different court that he was entitled to film the defendants (notwithstanding that court buildings are plastered with signs reminding people not to do this). His video diatribe – in which he said that “the paedophiles are hiding”, that the police had asked him not to “expose” them as paedophiles (presumably on the basis that they were, at that time, defendants in a live trial) but that “we will”, and that he would be “going round to their house” to catch the defendants on camera – thus continued. The judge hearing the rape trial was made aware, and he was brought before court to be dealt with for contempt of court.

It was held that this behaviour was capable of prejudicing the ongoing trial. The finding of the judge, from the judgment, was that in acting in this way, Yaxley-Lennon had committed a “criminal contempt” – what is otherwise known as a contempt “in the face of the court”. He was also in contempt by virtue of filming in breach of section 41. He was committed to prison for 3 months, but this was suspended for a period of 18 months. What this meant, as he was told, was as follows:

“[Y]ou should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought, a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court.

In short, Mr Yaxley-Lennon, turn up at another court, refer to people as “Muslim paedophiles, Muslim rapists” and so and so forth while trials are ongoing and before there has been a finding by a jury that that is what they are, and you will find yourself inside. Do you understand?”

Leeds

If you breach a reporting restriction, you are in contempt of court. This is irrespective of your intent or motive.

And this is where Yaxley-Lennon found himself. Arrested by police (initially for a breach of the peace, but then dealt with in court for contempt – this is entirely unremarkable, despite the attention given to it by Yaxley-Lennon’s supporters) and brought before the judge facing an allegation of contempt. Contempt having been admitted, Yaxley-Lennon’s barrister advanced mitigation, and HHJ Marson committed YL to prison for a total of 13 months. 10 months was for the new offence, with the three-month suspended sentence activated and ordered to run consecutively. The process was quick – 5 hours from arrest to imprisonment.

What were the grounds of appeal?

The appeal focussed on three principal arguments:

The findings of contempt at both Canterbury and Leeds did not comply with the Criminal Procedure Rules;
Neither the matter at Canterbury nor Leeds should have proceeded summarily; they should have been adjourned and referred to the Attorney General rather than dealt with swiftly by the trial judge;
The judge in Leeds punished the appellant for matters falling outside the scope of contempt and failed to properly identify the conduct he was treating as contempt of court.

A contemnor (as is the official term) has an automatic right to appeal to the Court of Appeal (unlike ordinary convictions or sentences where the Court of Appeal must give permission to a would-be appellant). However this has to be exercised within 28 days of the finding appealed against. While the appeal against the length of the committal (the “sentence”, if you like) was lodged in time, it was not until some time later that Robinson decided that he wanted to appeal against the findings of contempt. He therefore required the court to grant an extension of time for him to appeal.

Given the misinformation that has been spread, it is worth emphasising two things at this stage. Firstly, it was widely reported (including by me) before the appeal hearing that Robinson was not appealing against the findings of contempt. We did so because this is what Robinson’s official spokesperson, and the media organisation supporting him, publicly announced. He deliberately chose not to publicise the fact that he was appealing against the findings of contempt, and the first that this was known was on the day of the appeal. Secondly, the arguments against the findings of contempt was entirely procedural. In other words, his barrister explicitly accepted that what Robinson had done amounted to contempt of court. The argument was simply that the court hadn’t dealt with it as the law requires.

Let’s take each part of the appeal in turn. What was that about the Criminal Procedure Rues?

The Criminal Procedure Rules were introduced in 2005 to impose some sort of order on the routine chaos of criminal proceedings. They are lengthy and comprehensive, and prescribe the procedures that the criminal courts must follow.

Contempt proceedings can be started either by the court (i.e. the judge), or following a reference to the Attorney General, who as the “guardian of the integrity of the administration of justice” often takes charge.

When the court is dealing with an alleged contempt of court, the relevant procedure is set out at Criminal Procedure Rule 48. The law permits the court to deal with contempts summarily – i.e. straight away – or to adjourn to another date, as long as the procedure is fair. What is appropriate will depend on the circumstances. Where someone is interrupting a trial, for instance, it will usually be right for the court to deal with the contempt immediately to avoid further disruption. However the Court of Appeal, referring to case law, emphasised that this procedure should be used sparingly. Where there can safely be an adjournment, there should be.

Another important feature is that the court should “particularise” the contempt – spell it out so that the alleged contemnor knows what they are supposed to have done. An extract of the procedure is here:

So where did Canterbury Crown Court go wrong?

It didn’t. Robinson argued that the judge had failed to provide the written statement of particulars of the contempt required by Rule 48.7. However, the Court of Appeal, following the appeal hearing last month, came into receipt of “late disclosure”, which showed that “a deliberate tactical decision was made by [Robinson’s] legal advisers at Canterbury to be complicit in the court’s failure to comply with Rule 48.” The appellant waived legal privilege (a common request made by the Court of Appeal in appeals where criticism is made of how Crown Court proceedings were conducted) which allowed the Court of Appeal to read the legal advice he received. And it emerged that a conscious decision was taken by his legal team not to invite the judge to follow the correct procedure, as they thought they would secure a tactical advantage by making the judge “uneasy” about the proceedings.

The Court of Appeal was not impressed, telling Robinson:

“It lies ill in the mouth of an appellant to complain of the failure of the court below to follow the appropriate procedural steps when that failure was fully appreciated at the time and remained deliberately uncorrected for tactical reasons and collateral advantage.”

The Court added that the new barristers instructed for the appeal were unaware of this until after the appeal hearing, and disclosed it promptly when it came to their attention.

In any case, the Court of Appeal said that nothing procedurally was flawed in Canterbury. The judge had adjourned the contempt hearing for 12 days to allow time for him to take legal advice. Any failure to follow the CrimPR was immaterial.

The appeal against the Canterbury contempt was therefore dismissed.

10. What about Leeds Crown Court?

This was very different. The time between arrest and imprisonment was five hours. The Court of Appeal was highly critical:

“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.”

The Court of Appeal said that the judge was right to order that Robinson immediately take down the video, but that he should then have “taken stock”. He should have either adjourned for a later hearing, or referred the matter to the Attorney General to consider. The Court of Appeal displayed some sympathy towards the judge’s position, but made clear it disapproved of his chosen course:

“We recognise that the judge was placed in an invidious position because he was concerned about the integrity of the trial which was almost at its end. The three trials, of which this was the second, were exceptionally difficult and sensitive. Having decided to suspend the deliberations of the jury, it is understandable that he may have felt under some pressure to resolve the issue of the appellant’s contempt expeditiously. However, once it had become apparent that the appellant was co-operating in removing the material from the internet, there was no reason why the jury could not have been permitted to resume their deliberations. If there was any doubt about the intentions of the appellant, the judge could have sought an undertaking from or ordered, the appellant not to comment further on the trial or approach the court until the trial (or trials) had concluded.”

There was also confusion, due to the lack of particulars of the contempt, as to what conduct the judge was dealing with Robinson for. He was in breach of the reporting restriction, but the judge also appeared to suggest that other comments in the video – relating to the defendants’ ethnicity and religion – would amount to a separate criminal contempt. But it was all rather fuzzy, and deeply unsatisfactory:

“In our judgment the failure to follow the requirements of Part 48 of the Rules was much more than a technical failure. In contempt proceedings, touching as they do on the liberty of the subject, there is a need for the contempt in question to be identified with precision and the conduct of the alleged contemnor identified with sufficient particularity to enable him, with the assistance of legal advice, to respond to what is a criminal charge, in all but name. In this case there was no clarity at all about what the appellant was admitting and for what parts of his broadcast he was considered by the judge to be guilty of contempt of court for breach of the section 4(2) order.”

As far as the length of sentence was concerned, the Court of Appeal criticised the decision not to adjourn for a Pre-Sentence Report (or “Pre-Commital Report”), and accepted that the speed of the hearing meant that the level of detail of mitigation put before the court was “very limited indeed”.

So the Court of Appeal quashed the Leeds contempt?

It did, and all consequential orders (i.e. the sentence) fell away. However that is not the end of it. The Court remitted (sent back) the contempt for a fresh hearing at the Crown Court before a different judge. When the contempt is established (as it surely will be given that Robinson has admitted through his barrister at the Court of Appeal that he breached the reporting restrictions), he will be sentenced afresh.

What’s the point? As Tommy’s barrister said, he’s served the equivalent of a four-month sentence. If the Court of Appeal accepted that there was important mitigation not heard, surely he’s going to receive a much shorter sentence?

Not necessarily. There was a sting in the tail of the judgment. The Court of Appeal observed that “the alleged contempt was serious and the sentence might be longer than that already served.” It also set out, for the benefit of any future sentencing court, the criteria that should be considered when passing sentence:

(a) the effect or potential consequences of the breach upon the trial or trials and upon those participating in them;

(b) the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made;

(c) the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied;

(d) the contemnor’s level of culpability and his or her reasons for acting in breach of the reporting restrictions;

(e) whether or not the contempt was aggravated by subsequent defiance or lack of remorse;

(f) the scale of sentences in similar cases, albeit each case must turn on its own facts;

(g) the antecedents, personal circumstances and characteristics of the contemnor;

(h) whether or not a special deterrent was needed in the particular circumstances of the case.

Additionally, cases involving a breach of a section 4(2) postponement order will often give rise the following potential consequences:

(a) Trials may have to be abandoned irretrievably;

(b) Juries may have to be discharged and retrials ordered with all the consequent delays and expense;

(c) Witnesses, some of them perhaps vulnerable, may have to face the ordeal of giving evidence for a second time;

(d) The trial judge’s decision upon how to manage the trial in response to the contempt may form the subject matter of an appeal which, whether or not successful, will generate additional anxiety, delay and expense.

So Tommy is free. This is a victory for free speech, right?

No. It is a victory for the procedural rules, and a sharp reminder to the courts of the need to follow them. But certain key takeaways remain:

Robinson admitted that he was in contempt of court at Canterbury, through racially charged and aggressive hounding of defendants which risked derailing a serious sex trial and denying justice to victims of sexual offending;
Robinson admitted through his barrister that he was in breach of the reporting restrictions at Leeds Crown Court. It was never suggested, by his barrister or anyone else, that the reporting restrictions were inappropriate. It was agreed by all that they were necessary to ensure the fairness of serious trials.
“Free speech” has nothing to do with this decision. This was not a case of Robinson “exposing” something the state was trying to cover up. At both Canterbury and Leeds, he was interfering in a live criminal trial in defiance of laws designed to ensure the trial was fair. The cases would have been reported in full by journalists once the postponement order was over. The only thing added to the sum of human experience by Robinson’s “citizen journalism” was the very real risk of serious criminal cases collapsing.

14. This shows that you know NOTHING, fake barrister. You were wrong, weren’t you?

Yes. My initial impression, based on the limited information available, was that the summary procedure was appropriate in the Leeds case. As the Court of Appeal explained, it was not. There were alternatives open to the judge which should have been explored. There were also obvious failings to abide by the procedural rules, although I would plead in mitigation that none of that information was available at the time that the story was first reported. As a result, the hearing was not fair. Whether the sentence was appropriate was not decided by the Court of Appeal and may perhaps be best assessed by what the freshly-constituted Crown Court decides to do, (although my position on that was neutral – I observed simply that the sentence was not out of the ordinary for serious contempts of court.)

So I hold my hands up – imperfect information makes for imperfect predictions. But is there a wider issue here, among me and other legal commentators? Were we too quick to dismiss the case with a “nothing to see here” wave of the hand, blinded by the unappealing nature of Robinson’s supporters and the organised maelstrom of fake news stirred up here and abroad? Maybe we were. Maybe we could have – should have – cleared our ears and browsers of the white (pride) noise and paid greater heed to the arguments of due process. Maybe a little more humility is required in these difficult cases. I am normally conscious in all legal blogging to couch in terms of conditionals – if this report is accurate, then the explanation might be X. Was I too quick to assume, wrongly, that the judge had acted correctly?

I think I may have been. But looking back over the litany of plainly false statements circulated between May and now – that Robinson’s “reporting” was nothing more than the BBC had done; that he was targeted by the deep state; that Robinson’s original barrister was an “unqualified duty solicitor”; that TR was never in contempt of court as the trial was over; that the courts were “covering up” serious crimes by certain racial groups; the dishonest framing of the debate as one of “free speech” rather than interfering with justice; and the other hundreds of fantastical theories clogging my Twitter notifications today – I’d suggest, self-servingly, that an inaccurate but well-meaning prediction – such as we all make in the courts every day – is lesser a social evil than the deliberate, racially-tinged misinformation campaign that we do our best to counter.

Tommy Robinson’s appeal: what happened?

Posted on July 18, 2018 by thesecretbarrister

Today the Court of Appeal (Criminal Division) heard the appeal of Stephen Yaxley-Lennon (AKA Tommy Robinson).

Judgment was reserved, meaning the Court’s decision will not be known for another couple of weeks. However it is worth, given the events of today, having a quick look at what happened. In doing so, I am grateful to the excellent Lizzie Dearden of the Independent who provided a comprehensive live-blog of the hearing from the Royal Courts of Justice, as well as the indispensable Matthew Scott who live-tweeted the hearing, and whose blogpost on the subject tells you everything you could ever need to know.

Background

Some of the background was set out in my first blog after Yaxley-Lennon was committed to prison for contempt at Leeds Crown Court on 25 May 2018. The full facts were, and to an extent are still, unknown. The judgment will, when it is handed down, hopefully fill the gaps, but in a nutshell it was reported that Yaxley-Lennon had committed contempt of court twice over.

The first contempt of court occurred at Canterbury Crown Court last year, when, in the course of a trial, Yaxley-Lennon engaged in the following behaviour.

So that is the first contempt. Yaxley-Lennon was committed to prison for 3 months, but this was suspended for a period of 18 months. What this meant, as he was told, was as follows:

“[Y]ou should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought, a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court.

In short, Mr Yaxley-Lennon, turn up at another court, refer to people as “Muslim paedophiles, Muslim rapists” and so and so forth while trials are ongoing and before there has been a finding by a jury that that is what they are, and you will find yourself inside. Do you understand?”

Fast-forward to this year. On 25 May 2018, Yaxley-Lennon attended Leeds Crown Court to “report” on an ongoing trial. [The subject of this trial is still subject to reporting restrictions and so is not mentioned here. I will update when the restriction is lifted.] He live-streamed a Facebook video in which he made various comments about the defendants, including reading out their names. This was at a time when reporting restrictions were in place – a type of restriction called a “postponement order” under s.4(2) of the Contempt of Court Act 1981 – which prohibited any reporting on the details of the trial until a later date. That later date would have been the conclusion of a “linked trial” – it is normal in Engand and Wales that, where there are multiple defendants to be tried in a big criminal case, and there are too many defendants for all to be tried at the same trial, there is instead a series of individual, linked trials. In order to ensure that anything said or done in the first trial does not risk prejudicing a potential jury for a later trial, the court will often impose a “postponement order”. The full details of everything can then be reported freely at the conclusion of all of the proceedings.

If you breach a reporting restriction, you are in contempt of court. This is irrespective of your intent or motive.

He appealed, and here we are.

The grounds of appeal

A number of issues were raised by Yaxley-Lennon’s barrister, Jeremy Dein QC.

The first – and most surprising to those of us who had relied on Yaxley-Lennon’s spokesperson’s claim that he was only appealing the length of the terms of imprisonment – was the announcement at the outset of the hearing that the appellant was seeking to appeal against the finding of contempt, not only at Leeds Crown Court, but also the finding of contempt at Canterbury Crown Court last year.

Appeals have to be lodged within 28 days of the finding of contempt, so the first hurdle to clear is an application for an extension of time. Jeremy Dein QC submitted that there had been a delay in Yaxley-Lennon receiving legal advice due to difficulties experienced by his legal representatives in visiting him in prison. In relation to the Canterbury case, Mr Dein submitted that Y-L had not been aware of any legal flaw in procedure until he had received this most recent legal advice. The appeal against the contempt itself, as opposed to just the “sentence”, was therefore lodged late in the day. (There was an earlier report that the initial date for the appeal had been vacated. It may well be that the late lodging of these grounds, and the significant change in the way in which the appeal was framed, was the reason).

The arguments against both contempts centred around alleged “procedural deficiencies”. That is to say, there was not any argument that Y-L had not acted in a way that would amount to contempt; rather it was said that the way in which the courts had dealt with it meant that the contempts should not stand as a matter of law.

Leeds Crown Court

It was argued that HHJ Marson was wrong to proceed to deal with the contempt “summarily” – i.e. by hearing it himself on the day that the contempt was committed. It was said that Y-L was prejudiced by the speed with which the case was dealt with.

The Criminal Procedure Rules allow for a judge to deal with contempt summarily. There is an initial procedure that the court should follow (CrimPR 48.5(2)), which requires the court to do the following:

If, having completed the initial procedure (which includes offering the contemnor a chance to apologise), the judge decides that further action is to be taken, the court must embark upon an “enquiry” (the name for the hearing of a criminal contempt). A court can postpone an enquiry for further investigation. It is commonplace for contempt to be dealt with swiftly and summarily, but it was argued that in this case it resulted in prejudice to the appellant.

The reason for this, it was said, is that although Y-L’s barrister at the hearing accepted the contempt on Y-L’s behalf and apologised for it, Y-L was not directly asked whether he admitted the conduct, and was not given the opportunity to apologise (required by CrimPR 48.5(2)(b)). This, it was said, amounted to a serious procedural defect. The court should have made clearer how it defined the contempt, and should have ascertained exactly what Y-L did and did not accept. It was accepted that the procedural error made no difference to whether Y-L was in contempt, but was said that it was so serious that the contempt should be quashed.

Canterbury Crown Court

It was submitted that it was unclear under which law – i.e. which species of contempt – Y-L was found to be in contempt and sentenced at Canterbury. As set out in my previous blog, Y-L appeared to be in contempt in two ways – a breach of the statutory prohibition on filming inside court buildings under s.41 of the Contempt of Court Act 1925, and a contempt “in the face of the court”.

There was also a suggestion that the fact that HHJ Norton in Canterbury had expressed Y-L’s sentence as “3 months’ imprisonment”, rather than “a committal of 3 months”, was an error of law. [This is correct; however it is far from unusual. Often judges will conflate terms such as “imprisonment” and “detention” (the latter applies to offenders under 21), but it makes no practical difference, and is corrected by the Court of Appeal as a technicality.]

Length of committal

As for the length of the committal, the following submissions were advanced:

Y-L was not acting with “impertinent defiance”, and had in fact asked a police officer outside Leeds Crown Court if his actions were in contempt of court;
Because certain matters had been reported earlier in the press (before the imposition of reporting restrictions), Y-L believed that they were already in the public domain;
He did not intend to breach the reporting restriction, albeit he was aware of it;
Due to the limited time that Y-L spent with his barrister on 25 May, important matters of mitigation were not before the court, such as the fact that Y-L said he had undertaken media training;
The court was also not made aware of the impact of prison upon Y-L when he was sentenced in 2013, which had left him unable to sleep, nauseas and anxious;
That in passing sentence the judge attached improper weight to things said by Y-L said on the Facebook livestream which were not of themselves contemptuous.

It was submitted that, everything considered, 10 months was too high a starting point for the Leeds contempt, and furthermore that it was “unfair” that the 3-month suspended sentence was activated.

The amicus

The Attorney General appointed counsel, Louis Mably QC, to act as “amicus” (“friend to the court”). Contempts are generally not a matter for the prosecution (being “offences” committed against and enforced by the court), but where there are questions of law with which the Court of Appeal may wish for assistance. Given the technical argument over the effect of the alleged breach of the Criminal Procedure Rules, the appointment of an amicus appears sensible.

Mr Mably argued that a breach of the Criminal Procedure Rules does not of itself invalidate a finding of contempt, particularly where it is accepted that it had no bearing on the outcome of the case. He said that, regarding the Leeds matter, an adjournment would not have made a practical difference to the outcome – while doing so might have allowed the court to more properly articulate the nature of the contempt, Y-L would still (as he accepted through Mr Dein) have been in contempt of court. However, importantly, Mr Mably did accept that not adjourning could have affected the sentence imposed.

Conclusion

Jeremy Dein QC played a canny game by emphasising the Criminal Procedure Rules, compliance with which, as he reminded the Court, is considered of utmost importance by Sir Brian Leveson, the President of the Queen’s Bench Division. The Court must decide to what extent a failure to follow the Rules (if indeed such a failure is made out) impacts the validity of a finding of contempt. In general, the Court of Appeal nowadays does not have much time for technical arguments, and as both prosecution and defence appeared to accept that there would not have been a difference to the findings, this ground of appeal may not hold much sway.

Hostage-to-fortune time, what would my best prediction be? Emphasising that we still do not know the full facts – transcripts of what happened at Leeds Crown Court, for example, were before the Court of Appeal and will be vital in establishing the key issues (e.g. whether the contempt was put to Y-L; what procedure was followed; what was said in mitigation), and the parties referred to written submissions that have not yet been made public – my guess is that the Court will not agree that the contempts are invalid, but may well find that relevant matters of mitigation were not taken into account, and so reduce the sentence by a few months.

Why was a homeless man jailed for pretending to run the London Marathon?

Posted on June 22, 2018 by thesecretbarrister

A homeless man who picked up a lost race number and “completed” the London Marathon has been jailed for 16 weeks.

Yesterday at Uxbridge magistrates’ court, Stanislaw Skupian (38) was sentenced by magistrates having pleaded guilty at an earlier hearing on 18 May to fraud, after he picked up a race card number dropped by runner Jake Halliday at the 23-mile mark and illicitly joined the race himself. He crossed the finish line and celebrated with the medal intended for Mr Halliday, who found himself removed from the race 300 metres from the Finish line when marshals spotted that he was not wearing a race number.

The Chair of the bench passing sentence told Skupian, a homeless father-of-one who had recently suffered a temporary breakdown in his mental health, “The offences are so serious [that] only a prison sentence will suffice”. 13 weeks’ imprisonment was passed, with three weeks’ imprisonment imposed consecutively for unrelated matters of theft.

The Chief Executive of the London Marathon, Nick Bitel, reportedly said that “justice has been done”. His apparent pleasure with the sentence was not matched by many people on social media, who expressed consternation at a mentally-unwell homeless man being squeezed into our bursting prisons for a non-violent offence.

So what the Dickens has gone on?

The offences

Stanislaw Skupian was charged with fraud by false representation, contrary to sections 1 and 2 of the Fraud Act 2006. The “false representation” being, presumably, the implied representation that he was the rightful owner of Mr Halliday’s race number and was entitled to complete the race and claim the finishers’ medal. This offence carries a maximum sentence of 10 years’ imprisonment in the Crown Court, or six months’ imprisonment in the magistrates’ court. He was sentenced to 13 weeks’ imprisonment.

He was also charged with three unrelated offences of theft. He was arrested at the multi-faith prayer room at Heathrow Airport, where he was found with items including a primary school worker’s identity card and a pink diary holding overtime hours worked by airline staff. It was said that Skupian viewed the airport as a temporary home and had picked up items discarded. This would amount to theft (referred to in court as “theft by finding”) under s.1 of the Theft Act 1968. He received three weeks’ imprisonment for these offences, to run consecutively to the 13 weeks imposed on the fraud (it is unclear whether this was one week consecutive for each of the three theft charges, or three weeks on each directed to run concurrently to each other, or some other mad configuration dreamed up by the magistrates).

He was further made subject to a Criminal Behaviour Order, which is the new replacement for the old-fashioned ASBO. These can be imposed where the court is satisfied that a defendant has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person, and where a Criminal Behaviour Order will help in preventing the defendant from acting in that way. In this case, the court deemed that banning the defendant from Heathrow Airport for three years, unless he has a pre-booked flight, was an appropriate use of that power.

The Sentencing Guidelines

To look at what sentence we might expect, we have to look at the Sentencing Guidelines, which are published by the Sentencing Council and which courts are required by law to follow. So let’s look at the Definitive Guideline for Fraud, Bribery and Money Laundering Offences. The seriousness of an offence is judged by considering the “culpability” of the offender and the “harm” caused by the offence.

On the Guideline for straightforward fraud, the first step is to assess culpability by reference to the below factors:

There are plainly no elements of “High culpability” in this case. It would appear, in the absence of any evidence to the contrary, that this was an opportunistic, one-off offence with very little planning, which points towards Lesser culpability.

Now we turn to the assessment of harm:

For fraud, you take as your starting point the financial loss to the victim. Here, it is very low indeed. The cost of entering the London Marathon ballot, at £39, is probably the closest financial value you can attach to this unusual offence (the value of the medal not being easily assessed due to it not being something purchasable on the open market). This puts us in the lowest category, Category 5.

But then we have to look at the impact upon the victim, to see whether it warrants the sentence being moved upwards. This is a slightly unusual case, because although (I expect) the charge would have been drafted with London Marathon as the nominal victim, the person most directly affected is arguably Jake Halliday. He was stopped 300 metres from the finishing line and told that he was not allowed to cross due to his number having fallen off. He had raised £49,000 for a charity, Bloodwise, and was prevented from completing the race, having run the best part of 26 miles, in the cruellest of circumstances. What was (one might expect) a lifetime ambition was snatched away. That no doubt had a considerable detrimental effect on him.

However. Can it really be suggested that Skupian was responsible for depriving Mr Halliday of his moment of glory? It was said in court (and seemingly not disputed) that he spied the discarded race identifier on the floor and saw an opportunity. He did not steal or otherwise remove the number from Mr Halliday. It does not appear that he watched it fall and swooped in. If, as the court apparently accepted, he had simply seen it on the ground, was the damage not already done? Perhaps he could have handed the card to an official, but it is unclear how it could have been reunited with Mr Halliday in order for him to have been able to complete the race. The London Marathon Final Instructions to runners emphasises the importance of taking care of the running number – “Duplicate numbers cannot be issued under any circumstances”. It is also stated that anybody taking part without a number will be removed from the race by marshals “before you cross the Finish line”. Once that number had fallen, it would appear (and I’ll be happily corrected if I’m mistaken) that the game was over for Jake Halliday.

Against this backdrop, it might realistically be argued that while Skupian exploited Mr Halliday’s misfortune, his criminal behaviour did not cause it. The anger and humiliation felt by Mr Halliday when he learned that somebody had claimed his number and completed the race in his stead may well be significant, but is it so great as to move the harm out of “Lesser impact”? I suppose it might. Just.

My assessment is that for these reasons, this case probably falls somewhere between, categories 4C and 5C:

We can see that the latter provides a starting point of a ‘Band B fine’, which equates to around 100% of somebody’s weekly income. The category range is a discharge – a slap on the wrist – up to a medium level community order. If the harm caused is deemed serious enough to lift it up to the next category, the starting point is a medium level community order. Still the category range does not extend to custody. In order to arrive at a category where a custodial term is available, the court would have to have assessed culpability as “B”. I find it tricky to see how this was done.

We then look at aggravating and mitigating factors:

The defendant had a previous conviction for attempted theft. That was the only matter mentioned in court. So while it is a similar type of offence, this is hardly the kind of record which would seriously aggravate a defendant’s position to make the difference between custody and not-custody. No other aggravating features listed are relevant.

In mitigation, the court heard that the defendant has lived in the UK for 11 years. He suffered a neck injury in a serious car crash last year, forcing him to take sick leave from his catering job. His marriage broke down and he lost his home. Shortly before the race, he had suffered a “short, temporary breakdown in his mental state”. It was also submitted that he had committed the offence out of excitement, without fully appreciating that what he was doing was wrong.

Putting all this together, I’d say there’s more to mitigate his position than to aggravate it. This would mean moving below the starting point on the Guidelines.

We then have the issue of credit for guilty plea. He admitted the offence at the very first hearing, and so is entitled to one third off his sentence. This means that the magistrates must have taken a starting point of 20 weeks in order to arrive at a final sentence of 13 weeks for this offence.

[The thefts we shall put to one side as we do not know their value. What we can infer, however, is that they were considered significantly less serious than the fraud.]

Conclusion

Based on what we know, this appears to be a very harsh sentence. While this is not the type of fraud envisaged by those who drafted the Guidelines, it is difficult to see how a straightforward assessment of culpability and harm could lead a court to a starting point of 20 weeks for this single offence. The defendant has an automatic right to appeal his sentence to the Crown Court. I would not be surprised if he exercised it.

There are unknowns, of course. There would have been a Pre-Sentence Report prepared by the Probation Service, whose views would have informed the court’s. It may be that they were unable to offer any alternative to custody, although experience would dictate that a homeless man with a limited criminal record and mental health problems is the kind of person the Probation Service try to persuade the courts to let them help. It would be a sad day indeed if all that our justice system could offer to improve this man were two pointless months of incarceration.

I have written about magistrates before, including in my book, and one of my criticisms is that sometimes a sense of perspective is lacking when these non-legally qualified volunteers are sentencing offenders. Just because a power of imprisonment exists does not mean that it has to be used. This sentence, based on what we know, appears to be one such example. That it can be said that the offence was so serious that only a prison sentence can suffice is, with respect to the sentencing court, perverse. Courts often find ways to avoid immediate custody in cases which are far more serious, involving offenders with significantly worse records.

And I’ll seize on those words – “based on what we know” – to pirouette into a final flourish on my soapbox, if I may:

This case had received national media attention when Mr Skupian made his first appearance at court and pleaded guilty. It was plain to the court administration and to the magistrates that the outcome of this case would be widely reported. Yet still the magistrates did not see fit to publish written sentencing remarks explaining their decision.

This is a drum I have unapologetically beaten for some considerable time. Because while good court reporters should accurately reflect the full reasons given for a sentence passed, inevitably there will be occasions where something is missed in the hustle of a chaotic magistrates’ court list. Submissions and decisions as to where the case falls in the Sentencing Guidelines, for example, hold little interest to the average reader and may understandably not make it into the final copy, but to lawyers analysing and explaining the decision these can be critical.

Magistrates, judges and lawyers cannot complain that their remarks or decisions have been unfairly portrayed if they don’t bother to do the basics. It would have taken an extra ten minutes, one supposes, for the remarks to have been committed to paper, copied and distributed before being read out, and then everybody would be able to see how and why the decision was reached.

As it is, we are once again left groping in the dark, or at best the dusk, in trying to understand how our criminal justice system is – or in this case is apparently not – working.

What on earth happened to poor Tommy Robinson? 10 Things You Should Know.

Posted on May 25, 2018 by thesecretbarrister

It can now be reported that Tommy Robinson, the former leader of the English Defence League, convicted fraudster, sometime-football hooligan and self-reinvented free speech advocate, was on Friday 25 May 2018 imprisoned for 13 months for contempt of court after livestreaming a broadcast, including footage of participants in a criminal trial, outside Leeds Crown Court.

Some people will have seen reference to this on social media; others may have had the plight of Stephen Yaxley-Lennon – to use his real name – drawn to their attention by the hordes of protestors storming London over the May bank holiday weekend. But there has not, until today, been mainstream coverage of the case due to a reporting restriction – what is known as a “postponement order” – that forbade publication of these facts until after the conclusion of the trial upon which he was purporting to “report”.

While, as we’ll see below, the reasons for the postponement order appear sound, the consequence of preventing fair and accurate reporting by responsible journalists was that there was no factual counterpoint to the selective and inaccurate details of Yaxley-Lennon’s situation that were inevitably flooded through social media by his knuckle-dragging cheerleaders, not least his racists-in-arms across the pond. Thus sprung a (largely unchallenged and unchallengeable) narrative of Tommy The Brave being arrested outside court for no reason and imprisoned in secret by the deep state, culminating in petitions for his release and a march on Downing Street.

On the day itself, I attempted a post aimed at shining a little light on what might have happened (having no knowledge of the proceedings myself), but having been alerted by a reporter to the terms of the reporting restrictions, took the post down out of an abundance of caution. Now, however, with the restrictions relaxed we can try to restore a little order.

The full judgment is still awaited (expected imminently). For now let’s take this story in pieces based on what we know. I shall update the blogpost regularly as further information arrives.

images

1. Why was Tommy Robinson arrested?

Robinson was arrested outside Leeds Crown Court having video recorded a number of men – including defendants involved in a live trial – entering the court building, and livestreaming the footage on Facebook in what he claimed was an attempt at legitimate court reporting. West Yorkshire police, having been alerted to his activities, arrested Lennon at the scene. The initial reports suggested that he was arrested for a suspected breach of the peace, but what is now clear from the facts published today is that his actions in broadcasting details about the trial were in breach of reporting restrictions.

2. What are reporting restrictions?

The starting point of our criminal justice system is that justice must be seen to be done. However the law provides for exceptions to open justice, known generally as “reporting restrictions”. Reporting restrictions apply in a wide range of situations – from automatic restrictions preventing the identification of a complainant in a sexual allegation, to restrictions preventing reporting of Youth Court proceedings, to discretionary restrictions protecting the identity of child witnesses in the adult courts. Further details, if you are interested, can be found here.

Would a fair, accurate and contemporaneous report of the proceedings (or part thereof) published in good faith create a substantial risk of prejudice to the administration of justice in those or other proceedings?
Is an order postponing the publication of such reports necessary and are its terms proportionate? Would such an order eliminate the risk of prejudice to the administration of justice? Could less restrictive measures achieve the objective?
On the specific facts of this case, does the public interest in protecting the administration of justice outweigh the strong public interest in open justice?

This is what we had here. The judge had imposed a postponement order preventing the media from reporting on the ongoing trial until all linked trials had concluded.

Breaching a reporting restriction amounts to a contempt of court. Which is what Yaxley-Lennon admitted doing.

3. But I heard Tommy Robinson was arrested for a breach of the peace. What is a breach of the peace? How is a breach of the peace caused by someone simply filming?

Police officers have common law powers (i.e. powers not set out in statute) to arrest somebody where a breach of the peace is committed or where the officer reasonably believes it will be committed in the immediate future. As to what constitutes a breach of the peace, it is defined in case law as follows: “there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (R v Howell [1982] Q.B. 416) As we can see, it’s a fairly broad definition.

The courts have confirmed that it covers situations where, for example, there are reasonable grounds to fear that a demonstrator or protestor is likely to incite violence, even violence against themselves. This appears to be applicable to the present case. Robinson provocatively filming defendants and streaming on Facebook for the edification of his cult, is the kind of thing which could, it might be argued, lead to a breach of the peace.

Once a person has been arrested for breaching the peace, the police have the power to detain that person where there is a real apprehension that if released they will renew the breach of the peace within a short time, and where the police believe that further detention is necessary to prevent this. Given Robinson’s history of interfering with criminal trials and his defiance towards court orders, one can see why the police may have genuinely feared that he would have simply returned to court if not detained. The power of detention is time-limited – the detainee must be released within 24 hours (if not charged), or for serious (indictable) offences, detention may be authorised up to 96 hours.

4. How can it be legal for somebody to be arrested for breach of the peace and then imprisoned for contempt?

It is perfectly common for a person to be arrested on suspicion of one offence, and then ultimately charged or dealt with for another. In this case, it appears that Yaxley-Lennon was arrested and detained for causing or threatening a breach of the peace, and that the court, upon being made aware of his activities, directed that he be brought to court to be dealt with for contempt of court. Even if his original arrest and detention had been unlawful (and there is nothing at all to suggest that it was), this would have absolutely no bearing on the contempt proceedings. The “breach of the peace” angle is a red herring.

5. So back up a step – what exactly is contempt of court?

Contempt of court is a broad, catch-all term for various offences against the administration of justice. The law(s) of contempt are designed to safeguard the fairness of legal proceedings and to maintain the authority and dignity of the court. Some contempts are set out in statute, including the aptly-named Contempt of Court Act 1981. This sets out what is referred to as “strict liability contempt” – the rule that it is a contempt to publish any matter which creates a substantial risk of serious prejudice or impediment to the course of justice in legal proceedings, irrespective of the intention behind the publication. There is a defence available to publishers (which includes newspapers, TV and social media users) who can show they were providing “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”, thus giving some latitude to the press and ensuring that the media do not shy away from accurate, factual reporting of criminal proceedings.

Other contempts are more eclectic, such as the prohibition on taking photographs or moving images inside a court building (or even drawing a picture – court sketch artists have to draw outside the court from memory – section 41 of the Criminal Justice Act 1925).

Which brings us back to Mr Yaxley-Lennon, and a sunny day in May last year at Canterbury Crown Court.

6. What happened at Canterbury Crown Court?

On 8 May 2017, during the course of a rape trial at Canterbury Crown Court involving four (Asian) defendants, Yaxley-Lennon attended court and attempted to film the defendants for an online broadcast entitled “Tommy Robinson in Canterbury exposing Muslim child rapists”. He was thwarted by the judge making arrangements for the defendants and jurors to leave court through alternative routes, and so settled for filming himself on camera, both on the court steps and inside the court building, preaching to his online followers about “Muslim paedophiles”. He was interrupted and told by court staff that recording was prohibited (section 41 of the Criminal Justice Act 1925, as we’ve discussed above), but continued to record, insisting that he had been told by a different court that he was entitled to film the defendants (notwithstanding that court buildings are plastered with signs reminding people not to do this). His video diatribe – in which he said that “the paedophiles are hiding”, that the police had asked him not to “expose” them as paedophiles (presumably on the basis that they were, at that time, defendants in a live trial) but that “we will”, and that he would be “going round to their house” to catch the defendants on camera – thus continued. The judge hearing the rape trial was made aware, and he was brought before court to be dealt with for contempt of court.

The judge, HHJ Norton, dealt with Yaxley-Lennon on 22 May 2017. She found that he was in contempt by having filmed inside the court building, contrary to section 41, but was also in common law contempt by having continued to film having been told to stop by the court staff. The judge considered the content of his broadcast, and the real risk of his actions derailing the trial, and committed him to prison for 3 months, suspended for a period of 18 months. In practical terms, a suspended sentence means that the prison sentence (3 months) hangs over you for the operational period (18 months). If you remain offence-free and comply with any requirements the court makes, you will never have to serve your sentence. If you reoffend, the presumption in law is that you will serve that prison sentence, additional to whatever sentence you receive for the new offence.

7. So what you’re saying is that Tommy Robinson was given a suspended sentence simply for trying to report on a case? Free speech is truly dead.

No, ye of little brain. He was found to be in contempt of court and given a suspended sentence because his actions put a serious criminal trial in jeopardy. Running around a court building shouting “paedophile” at defendants during a live trial, or live-streaming defendants and members of the public – potentially including jurors – entering and exiting a court building against a tub thumping narration of “Muslim paedophile gangs”, is hardly conducive to ensuring a fair trial. And if there can’t be a fair trial, nobody gets justice. Not the accused, not the complainants, not the public. This is not theoretical – serious criminal trials have nearly collapsed because of the actions of people like Yaxley-Lennon.

We have a quaint tradition in England and Wales that trial by media should be avoided, and that trial on evidence heard in court is the fairest way to determine a person’s guilt. Therefore while criminal courts are open to the public, and it is absolutely fine to report soberly and accurately about ongoing criminal trials, anything which might prejudice or intimidate the jury is strictly forbidden. And this makes sense. It would be a nonsense, for example, to have strict laws preventing individuals from walking up to a juror to say, “The defendant you are trying is plainly a dirty paedophile”, but to allow broadcasters or tabloid columnists to trumpet that message to jurors through the media. Self-defined “free-speech advocates” – particularly a number on the other side of the Atlantic – have difficulty understanding this, so it’s worth pasting in full what HHJ Norton said:

“This contempt hearing is not about free speech. This is not about freedom of the press. This is not about legitimate journalism; this is not about political correctness; this is not about whether one political viewpoint is right or another. It is about justice, and it is about ensuring that a trial can be carried out justly and fairly. It is about ensuring that a jury are not in any way inhibited from carrying out their important function. It is about being innocent until proven guilty. It is not about people prejudging a situation and going round to that court and publishing material, whether in print or online, referring to defendants as “Muslim paedophile rapists”. A legitimate journalist would not be able to do that and under the strict liability rule there would be no defence to publication in those terms. It is pejorative language which prejudges the case, and it is language and reporting – if reporting indeed is what it is – that could have had the effect of substantially derailing the trial. As I have already indicated, because of what I knew was going on I had to take avoiding action to make sure that the integrity of this trial was preserved, that justice was preserved and that the trial could continue to completion without people being intimidated into reaching conclusions about it, or into being affected by “irresponsible and inaccurate reporting”. If something of the nature of that which you put out on social media had been put into the mainstream press I would have been faced with applications from the defence advocates concerned, I have no doubt, to either say something specific to the jury, or worse, to abandon the trial and to start again. That is the kind of thing that actions such as these can and do have, and that is why you have been dealt with in the way in which you have and why I am dealing with this case with the seriousness which I am.”

8. How is all that relevant to what took place on 25 May 2018?

It is relevant because, when passing the suspended sentence, HHJ Norton gave some fairly clear warnings to Yaxley-Lennon:

“[Y]ou should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought, a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court.

In short, Mr Yaxley-Lennon, turn up at another court, refer to people as “Muslim paedophiles, Muslim rapists” and so and so forth while trials are ongoing and before there has been a finding by a jury that that is what they are, and you will find yourself inside. Do you understand?”

And what did Yaxley-Lennon go and do?

9. What did he go and do?

As we know now, he went and committed a contempt of court by reporting on court proceedings. He did so in a way that expressed his “views” on the guilt or otherwise of the defendants, creating a substantial risk of serious prejudice to the proceedings by jurors seeing or becoming aware of his ill-informed ramblings. If this wasn’t enough, he was also in breach of reporting restrictions which he accepted he knew about. He was therefore, it seems, in contempt twice over. This could have led to an application by the defence advocates to discharge the jury and start afresh, potentially meaning vulnerable complainants having to go through the trauma of a trial all over again, or even an application to “stay” (bring to an end) the proceedings altogether.

Importantly, Yaxley-Lennon admitted that he was in contempt of court.

And he was committed to prison for 10 months, with the suspended sentence of 3 months activated and directed to run consecutively. Exactly as he’d been warned.

10. He was tried in secret on the day he was arrested, with no lawyers and the media were banned from reporting what had happened. This is Kafka on steroids, surely?

Contempt proceedings do not attract a jury trial. The procedure for a court dealing with a criminal contempt is set out in the Criminal Procedure Rules. These allow for a “summary procedure”, where the court, having made its own enquiries and offered a contemnor (for that is the official term) the chance to seek legal advice, can deal with the offender straight away. The Crown Court can commit a contemnor to prison for up to two years. There is nothing unusual in him being dealt with on the day of the contempt. Courts are required to deal with contempts as swiftly as possible. There is no suggestion of any prejudice; Yaxley-Lennon was legally represented by an experienced barrister and would have received full legal advice.

He also wasn’t tried in secret; his contempt hearing was heard in public, with members of the press present. However, the judge imposed temporary reporting restrictions (under section 4(2) of the Contempt of Court Act 1981 again), postponing reporting of the details of Lennon’s contempt until the trial, and the subsequent related trial, had concluded. This, you may think, is for obvious reasons. A media circus and orchestrated attempt at martyrdom by Lennon and his followers – as was indeed attempted when the restrictions were defied by far-right blogs and foreign news outlets – would present exactly the sort of distraction that threatened to disrupt the very serious criminal proceedings that the judge was desperately seeking to keep on the rails.

In the event, the repeated breaches of the order by foreign news outlets and social media users meant that the judge’s intentions were thwarted. An application to discharge the reporting restriction was made on 29 May 2018 and the judge agreed that, in light of what had happened over the Bank Holiday weekend, restrictions should be lifted to allow publication of the facts.

It is also worth noting that there is a Practice Direction dealing with situations where defendants are imprisoned for contempt of court. This requires that full judgments be published online and handed to the media where a person is committed to prison for contempt. As we can expect imminently.

As for the suggestion (by UKIP among others) that nobody has ever before been found in contempt of court and a postponement order made preventing the media from immediately reporting it, a handy example can be found on 22 May 2017, where one Stephen Yaxley-Lennon was found to be in contempt at Canterbury, and a postponement order was made restricting publication until the end of the substantive trial.

*************************

UPDATE:

In light of the (frankly ingenious) conspiracy theories that are now doing the rounds after the rather mundane truth above was revealed, some bonus Q&As are required:

11. I heard that Tommy Robinson was denied his own lawyer, and had to have a duty lawyer who was in fact a PROSECUTION lawyer and who didn’t properly defend him.

The barrister previously instructed by Yaxley-Lennon has confirmed that she was not present at court for these proceedings. She is understandably declining to comment further unless or until authorised to do so. But in any case, Yaxley-Lennon was defended by an experienced member of the independent criminal Bar. He may have been offered the duty solicitor at the police station if his chosen solicitor was not available, but in the Crown Court hearing he was advised and represented by a specialist criminal barrister with over 16 years of experience of cases including murder, people-trafficking, serious violence and serious sexual offences. As an independent barrister, this professional prosecutes as well as defends (most of us do), but his website profile in fact emphasises his experience as a defence advocate. In other words, Yaxley-Lennon had a top-notch defence barrister fighting his corner.

12. No trial has ever taken place on the same day as a suspect’s arrest, oh FAKE LAWYER. This was special treatment dished out to a man who is a thorn in the side of the establishment. What do you say about that?

If we were talking about jury trials, I’d agree with you. But Yaxley-Lennon was not “tried”. The contempt proceedings were held on the same day, as is entirely standard (see details of the summary procedure for contempt above), and he admitted that he was in contempt of court. There is no special treatment here whatsoever. Anyone, infamous far-right totem or otherwise, would have been subject to the exact same process for contempt in breaching a reporting restriction. Not everyone would have been sent straight to prison; but then not everyone has a suspended sentence hanging over them for a near-identical offence.

13. I’ve seen a photo of the judge who sentenced Tommy watching his arrest from inside the court building. This judge was biased.

Even supposing the photograph shows what it is said to show, this is entirely irrelevant. If, as has happened in one of my cases, a member of the public starts shouting out at a judge mid-proceedings, the judge may direct the arrest of that person, and deal with them immediately for the contempt. Witnessing the arrest of an individual does not preclude a judge from dealing with that individual in these circumstances. This is, again, a complaint devoid of argument.

14. But the BBC reported on the same trial that Tommy did, and they’re not in prison. Why not?

Because any BBC reports, which as far as I have seen relate entirely to the outset of proceedings before the judge made the reporting restriction, were not in contempt of court. They were fair and accurate, rather than propagandist rants seeking to disseminate information that a judge had specifically ordered should not be in the public domain (such as details of charges against the defendants that had been dropped), and were not in breach of reporting restrictions.

15. Do you have to be so snarky in your lawsplaining? Aren’t you just turning off people who you need to convince?

This is a fair question. Ordinarily, I do my best in these posts to embrace rather than alienate in an effort to explain or persuade. But cases like this, involving co-ordinated transnational campaigns disseminating blatant falsehoods about our legal system and gaslighting the public are, I feel, different. And call for a different approach. As I see it, there are two types of people currently propagating the Free Tommy Robinson myths: far-right sympathisers deliberately sowing discord and falsehoods, whose concern for due process is a cipher for hero-worship; and good people confused and worried about what they’ve heard about the “threat to free speech” posed by the overbearing English and Welsh justice system. The first category are never going to be swayed by facts or rational argument. That is plain from their every interaction on social media, and their every appearance on Fox News. Their motives are clear, their integrity irretrievable and they are not only beyond reach but, frankly, not worth the effort. The second group will, I hope, realise from this explanation that the toga party they have wandered into is in fact a Klan meeting, and will understand the urgency and frustration that underpins the argument.

However the reality is that most people out in the world are probably paying little attention to the ballad of St Tommy, but may form partial views based on what snippets they read and hear. I want this – the truth – to be that snippet. If the key to turning up the online volume is a snappy tone and uncompromising beatdown of idiots and liars, then that’s the game I’ll play.

Why did a Britain First supporter who wanted to “kill a Muslim” and drove his van at a pedestrian only receive 33 weeks’ imprisonment?

Posted on January 27, 2018 by thesecretbarrister

This is a little later than planned, but recently I’ve been responding to a number of queries about legal issues on Twitter through threads, and it struck me that it might be of some use (possibly) to put them up here, for anyone interested who doesn’t catch them live.

Here, from a fortnight ago, I look at why a Britain First supporter who drove his van at the owner of an Indian restaurant, having earlier expressed a desire to “kill a Muslim”, received 33 weeks’ imprisonment upon his conviction.

Marek Zakrocki

The facts provided by the Metropolitan Police are here. In summary, Zakrocki, having drunk 2 bottles of wine, assaulted his wife and left home. He told police he was going to “kill a Muslim”. He then drove around Harrow shouting “white power”. pic.twitter.com/wGF7HhYVm8

— The Secret Barrister (@BarristerSecret) January 13, 2018

Upon arrest, he was in possession of a kitchen knife and a baton torch. He told police when interviewed that he had no recollection of what had happened. The BBC reports that racist literature was found at his house.

— The Secret Barrister (@BarristerSecret) January 13, 2018

Establishing the reasons for this is not entirely straightforward, but it appears from the BBC that the speed of the driving was taken into account: https://t.co/U9rU0Y6AzV

— The Secret Barrister (@BarristerSecret) January 13, 2018

Proving attempted murder requires proving an intent to kill. One can see how if Z was driving at a low speed, the prosecution might struggle. Causing grievous (really serious) bodily harm is a little different. You don’t have to drive at a very high speed to cause serious injury.

— The Secret Barrister (@BarristerSecret) January 13, 2018

So we’re in the dark as to whether this was a reasonable decision by the prosecution. I would note that, given the seriousness of the original charge, prosecuting counsel will have been one of the most experienced. And the judge is very highly regarded. But we just don’t know.

— The Secret Barrister (@BarristerSecret) January 13, 2018

It has been reported that, notwithstanding the abundant evidence of religious and racial motivation leading up to the offence, Z was *not* sentenced for religious or racial aggravation (as a “hate crime”, as the police call it). The BBC say: https://t.co/3SbjIJWQ05

— The Secret Barrister (@BarristerSecret) January 13, 2018

In such offences, the judge should impose an “uplift” to the sentence to reflect the religious/racial aggravating, and state that when passing sentence. It is unclear whether HHJ Leonard QC did, but the police seem to think he took this into account: pic.twitter.com/gjnPbTR5GK

— The Secret Barrister (@BarristerSecret) January 13, 2018

It would be interesting to know the uplift for the aggravation, as on its face the use of a car as a weapon usually puts an offence towards the top of the sentencing range. I discuss uplifts in more detail re Raheem Sterling’s racist attacker here: https://t.co/CSd0dlq1cK

— The Secret Barrister (@BarristerSecret) January 13, 2018

But, regardless of whether the law was correctly followed, I have sympathy with people who feel that 33 weeks’ custody (of which half is served) does not reflect the seriousness of this offence, on the reported facts.

— The Secret Barrister (@BarristerSecret) January 13, 2018

What’s that? Is this kind of confusion over sentencing decisions something that is covered in my book due out in 22 March? Why yes, yes it is. Thank you for asking. It’s available for pre-order here: https://t.co/ysL7Ct8uTT

— The Secret Barrister (@BarristerSecret) January 13, 2018

*CORRECTION: The 1-week consecutive sentence was for the assault on the defendant’s wife, not the drink driving: pic.twitter.com/9KbI45NlDq

— The Secret Barrister (@BarristerSecret) January 13, 2018

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