Guest post: Open Letter to Leaders of the Criminal Justice System – Call for a National Protocol

I am delighted to host this guest post by Beheshteh Engineer, a third-six pupil. The views expressed are personal and do not necessarily reflect the views of her chambers.

Why is a functional Criminal Justice System important during a national crisis?

During a short-term national crisis, the CJS must provide two key functions:

  • To deal with urgent matters e.g. bail apps, warrants, CTLs
  • To protect the vulnerable from immediate harm.

We call for a national protocol to address how courts must work during this crisis.

We suggest the following principles for the operation of courts:

  1. The protocol must minimise the risk to the health of court staff and users, following government guidance.
  2. The protocol must allow the CJS to continue to provide its two key functions.
  3. The protocol must default to adjourning cases where the above two principles cannot be met.

Globally, many courts have begun to impose restrictions on cases (CJEU, New Zealand, Canada, some American states, have all closed courts except for the most urgent cases)

What are the current problems?

The current system presents 3 distinct problems:

  • That we are all required to self-distance, but court attendance requires the opposite, and
  • That the government has only adjourned trials with a TE of 3 days or more, and
  • That we do not currently have a set up that allows us to do most hearings remotely, thus requiring people to continue to attend court in person.

Social distancing

We are all being told to practice social distancing and as of 20 March, the government ordered bars and other shops, to close. Doctors all over social and traditional media are imploring people to stay at home. The message is clear: people should not be going out unless they are essential.

In the past week, we have seen the following: people coming to court displaying the symptoms, prisons bringing sick defendants to court, jurors/advocates/witnesses going into self-isolation, and a total lack of cleanliness, or hand gel, or soap, or masks, or hand sanitizer, or protective screens available in courts. Juniors with health issues are still attending court; those who are second and third six pupils feel they have no choice.

Government’s response

The government has adopted a halfway house approach by only adjourning trials three days or longer. Those in charge of the CJS continue to advocate ‘business as normal’ while all other branches of government sound the alarm.

The Bar leadership has said that anyone in an at-risk category or anyone who feels that working conditions are unsafe, can return cases with no ethical problems. This is welcome leadership on this issue. More is needed; those not in the at-risk category can still carry the virus, potentially infecting their own families and anyone else they come into contact with at court. Court advocates, particularly those most junior, are frightened, both for their health and their incomes

Additionally, the government has not yet put in place the resources to protect the self-employed from finding themselves without work and thus, without income. Many have children and mortgages to pay for, others have rent and basic expenses. Many of us at the criminal Bar are struggling and right now, going to court may be the only option, even if that will put ourselves and those we live with, at risk of getting the virus

Lack of investment in technology for the criminal courts

Papers in Crown Court cases are now all on DCS and the courts occasionally use video links where a defendant is in custody. Video links often fail to work, and there are insufficient video links to run the court system at even close to full capacity. Consequently, we have continued to conduct most hearings in person. There are good reasons for this; often material is not uploaded until the day of the hearing, a client has to enter a plea and instructions need to be taken. Nevertheless, the reality remains that there has not been proper investment in technology use in the CJS. As a result, it will require leadership and investment to switch to a system where many hearings are virtual.

Leadership to date on this issue has been poor. The CEO of HMCTS’s letter to the Chair of the BC on 19 March 2020 says that the senior judiciary has given guidance on encouraging the wider judiciary to use telephone and video hearings. There is also a link to this site, guidance which reads, “The decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice.” This means that all courts can operate according to their own rules. We are already hearing of plenty of cases where a client’s attendance has not been excused despite a reasonable request, as well as hearings in the CC being refused to be conducted by video when there is no good reason for physical attendance.

At a time of national crisis, this is a woeful response from HMCTS and senior leaders. It is also a deeply inefficient way to run any kind of system, never mind one of such importance.

The civil Bar, family Bar as well as some Tribunals are already ahead of us on this; they either already regularly use digital technology or have implemented a new protocol. Cases have been conducted (and won!) from advocates’ living rooms. If other Bars and Courts can manage remote hearings, we can too.

How can we solve some or all of these issues?

We should be limiting the number of people going to court. We should be protecting those who have to attend court. There should be no room for courts to do things on a court-by-court basis.

We must not continue in a way that puts our health, the health of our families and the general public, at risk. Continuing as we are will only help spread the virus further.

This letter suggests that we create a national protocol – similar to a practice direction – to address how every single court should manage their work during this time of crisis. Decisions need to be centralised and as new problems emerge, decisions must be taken and publicised online. We need to use technology as much as we can.

We also have to communicate updates as clearly as possible. Recent example today: jurors being told they had to attend court tomorrow (Monday) while being in an at-risk group. The message came back that they are excused. The question has to be asked, why are we doing this on twitter? We need a clear method of communication that is accessible to all.

We know that all the various legal bodies are meeting with the Ministry of Justice to lobby them for a proper plan. We add our voices to that. These are complex problems that require a great deal of thought, creativity, and effort to resolve.

How might such a national protocol work?

Suggestions for the protocol must both address issues of law and detail the ways in which we are going to take action. It is no good having vague suggestions and leaving each court to figure out how to implement it, because that way nothing will get done. We need to address the practical issues. This letter has attempted to do so, and in doing so you may find that some ideas are simply not workable at this time. Irrespective, we have a duty to not only think hard about these matters but to publish and debate these ideas so that we can keep people safe.

We propose the following immediate rules:

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020.
  2. All other hearings to be by video link OR telephone.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily adjusted.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly.
  6. We need a new arrangement for magistrates’ court hearings.
  7. We need a new protocol for those in custody.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations

How might these things work in practice?

  1. All trials in the Crown and Magistrates’ Courts, to be adjourned to 01 June 2020 Rationale:
    1. It is important to set a fixed date for when trials might resume, even if these are later abandoned. Dates to work to focus the mind.
    2. Stage dates to be put back so that work continues.
    3. Re-arranging listing on such a scale as we are seeing even if it remains just those with TE 3 days or more, is going to take time and proper thought. We should not do this on the fly otherwise there will be chaos.
    4. Such re-listing then needs to be properly communicated to all parties and should take into account advocates’ diaries, so that they do not lose out.
    5. If all hearings are virtual and all clients excused as standard this saves 100s of hours of manpower – all that then needs to be done is for clients to be told that they don’t need to attend court.
    6. If this is the default position, then hearings can continue in a way that avoids an advocate having to announce that they are in at at-risk group or are scared of attending court or who have some other legitimate reason.
    7. This also helps to preserve income, an important point. Many of us working in the CJS are self-employed; we need to attend hearings so we can get paid. We are not currently being afforded much support from the government.

    How might this work in practical terms?

    1. Listing are obviously the point people to arrange virtual hearings and will need to find a sensible way to schedule hearing times. This is done in the crown court and it can be done in the magistrates. Cases should also be re-fixed to accommodate advocates’ diaries so those booked to have trials do not lose out.
    2. Each court has to work out what technology they will use: skype, Teams, something else? Many barristers and HHJs are working together to try and figure out what works but we need a proper system. Also, I’m not PC users are having difficulty with skype for business. We are going to waste hours in court, at risk to our health, if we’re all trying to figure this out on the day.
    3. Once each court has figured out what tech they can use, this has to be communicated clearly on a single website acting as one point of reference.
    4. Chambers and Solicitors firms already have a list of emails and contact numbers for listing offices. These should be shared with advocates so that they can send individual email sand track hearings themselves [without the middle man] to ensure that matters are arranged sensibly and to take into consideration whether or not an advocate can do a telephone or video hearing or if other provisions need to be made.
    5. We should also share email addresses of those advocates at the CPS down to do a particular hearing so that CPS and defence can communicate in advance and so that the Crown can/attempt to upload relevant papers onto DCS in good time.
  2. All other hearings to be by video link OR telephone
    1. Hearings that can be done by delegated powers e.g. adjournment or CMH
    2. If parties email the listing office with the issues to address, this can be passed to the requisite court on the day of the hearing, and will save time.
  3. Clients to be excused from hearings as standard.
  4. Issue of Credit to be temporarily amended:
    1. If pleas need to be taken, the parties should work together to narrow down the issues ahead of time. This requires the Crown to upload material earlier than the day of the hearing. It requires effort and forward thinking to work.
    2. Where a G plea cannot reasonably be put in, everyone is to put in a NG plea and credit must be preserved until such time as 1) CPS serve all material and 2) counsel have been able to take instructions. We need detailed guidance on this. Defendants must not lose out. Same rule to be applied in the magistrates’ court.
  5. CTL extensions, bail applications and other urgent matters to be treated sensibly:
    1. Extending a CTL should not be routine
    2. Matters should be on a case-by-case basis: e.g. *some* defendants in an at-risk group should be strongly considered for release on stringent bail conditions.
    3. For other cases (maybe DVs) where there’s no bail conditions, Crown might want to apply for some? Ensure protection of potential victims?
    4. New cases should be bailed with conditions where appropriate.
  6. For magistrates’ courts:
    1. Papers for first appearances usually only arrive on the morning of the hearing. This will be difficult to change as it is the CPS that produces these papers. If the CPS can produce these bundles the night before the hearing, that would assist.
    2. Advocates can set up video conferences or telephone hearings with clients remotely to attend on the day of the hearing. As soon as they have the papers, the conferences can be held.
    3. The only remaining issue is how to list matters in a magistrates’ court: traditionally it is whomever is ready goes on first. If hearings are being done remotely, there will have to be a system or rule in place to decide who can call in.
    4. It may well be that the legal advisor or clerk in court will have access to a system whereby they can determine who is going to be heard next.
    5. First appearances and business in the magistrates’ courts, for it to continue working ‘as normal’ will require significant thought. It may be that some of these problems cannot be overcome anytime soon. They also require effort and someone to care enough to design a system so that these can be done remotely. There is a workable solution, but it requires all parties to work together and for those in authority to have the significant desire to make it work.
  7. For those in custody (predominately but not solely in the magistrates’):
    1. Conferences should take place by video-link wherever possible. However, we acknowledge that whether a defendant is on video from prison or in custody in the cells, a video-link may not always be possible. This is both a technical and legal hurdle that may take time to address.
    2. In the interim, no one should be required to hold a conference with someone in the cells where the court does not have a glass divider. In such cases, conferences should be held in a court room or other room available so that representatives are not put at risk.
  8. Should a court hearing in person remain essential, anyone in custody suspected of having the virus should not be brought to court.
  9. Protocol put in place to protect everyone at police stations
    1. police station representatives are reporting disparity of process when it comes to being asked to rep someone suspected of having the virus. There should be a protocol in place.

Other points

Following feedback from practitioners, a few other points are worth noting:

  • Some hearings have been “saved” by use of FaceTime. Some others are suggesting Zoom. There is a range of technology available but not all of it will be secure, or available to everyone. This may well be a problem.
  • Special provisions need to be put in in place for vulnerable people: complainants, witnesses and defendants. For example, a defendant with a MH issue or lack of good internet may not have the ability to participate in a virtual hearing. The issue of what to do when an interpreter is needed, should also be considered.
  • Every step taken into a police station is fraught with areas where someone can come into contact with the virus. The custody sergeant is responsible for the safety of police station representatives yet often a representative is taken immediately to a consultation room so there’s no option to speak to the custody sergeant unless it is insisted upon. We’re also being told that areas in the police station (the consultation room, amongst others) are not being regularly cleaned.
  • Prisoners should be considered for release, where appropriate.
  • If the plan is to keep courts open for as long as possible, there needs to be a nation-wide rollout of soap, hand sanitizer, wipes and a proper cleaning regime in place.

Conclusion

It is the case that with many of these things, what will suffer is the principle of open justice. That is a dilemma that needs to be thoughtfully considered.

The ideas in this letter are just one way to address matters. There may be problems with the ideas suggested – they are not perfect. But they are a start and hopefully a platform to encourage discussion.

We must work together to limit the spread of this disease while maintaining the criminal justice system.

Author: Beheshteh Engineer, junior criminal barrister (3rd six)

Views are those of the author alone, and not representative of those of her chambers.

 

The Tommy Robinson judgment – what does it all mean?

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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  1. 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.

 

  1. What 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.

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.

 

  1. 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.

 

  1. 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.

 

  1. 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:

  1. 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?
  2. 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?
  3. 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?

 

  1. 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

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 and referring to their religion, ethnicity and questioning the need for reporting restrictions. He encouraged people to share the video, which many did. This was at a time when, as Robinson knew, a “postponement order” under s.4(2) of the Contempt of Court Act 1981was in place, which prohibited any reporting on the details of the trial until the conclusion of a “linked trial” – as explained above.

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.

 

  1. What were the grounds of appeal?

The appeal focussed on three principal arguments:

  1. The findings of contempt at both Canterbury and Leeds did not comply with the Criminal Procedure Rules;
  2. 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;
  3. 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.

 

  1. 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:

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.

 

  1. 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”.

 

  1. 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.

 

  1. 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.

 

  1. 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:

  1. 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;
  2. 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.
  3. “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.

9 reasons why this vile murderer should be given taxpayers’ cash to sue the government

Just a quick one. A number of people online were yesterday disturbed by this tweet from court reporting Twitter account @CourtNewsUK, relating to Michael Adebolajo, one of the two murderers of Drummer Lee Rigby:

The story has been picked up by The Mirror, which gasped with similar horror that a “top judge” has “insisted [Adebolajo] should be given taxpayer cash to pay for his court fight against the Ministry of Justice.”

The anger has burned through the night and looks set to smoulder for the rest of the day, Radio 4’s Today programme finding space for a mention among its bulletins. And I understand why. On its face, this appears an instinctively unjust state of affairs. A High Court Judge loftily calling for yet more taxpayers’ hard-earned money to be poured into the pockets of a man guilty of unspeakable savagery.

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But scratch beneath the surface, and you quickly see that there’s more to this story than the tweet suggests. For a start, no decision has been made to grant Adebolajo legal aid for his personal injury claim against the Ministry of Justice, which arises out of injuries he sustained while being restrained by prison officers. Indeed, personal injury practitioners will correct me if I’m wrong, but I understand that legal aid for claims of this type is vanishingly rare. And proceedings are still at an early stage; today’s hearing at which the judge’s comments were made was a preliminary hearing. Details are scant. It is not clear whether the claim has any merit at all; whether it will run to trial, or whether it will be struck out as entirely frivolous.

But let’s suppose that the claim is heading for a trial. And let’s suppose the judge’s comments above were fairly and accurately reported in their full context [SPOILER – they were not, and we’ll come to that]. Here, resuscitating a thread I posted yesterday, are my thoughts on why legal representation should be made available to Michael Adebolajo, at taxpayer cost if need be:

  1. Any trial will take far longer if he is not legally represented. The conclusive experience of the courts is that legal proceedings involving unrepresented parties take far, far longer than when lawyers are instructed. The reason is simple – law and court procedure is hideously complicated. It cannot be – despite what some DIY law websites will tell you – be mastered through Google. Unrepresented litigants, even those who are impressive experts in their own professional fields, will make errors and cause delays. Lawyers are trained to hone in on the issues of law and fact that best support their case. Litigants-in-person may not appreciate their best points, or how to concisely argue them, or how to apply the law. Judges loyal to their judicial oaths are required to assist litigants as best they can to ensure fairness, but this all takes time. The experience of the family courts, in which 34% of cases now involve unrepresented litigants on both sides since legal aid cuts in 2012, bears witness to this.
  2. Any trial will be far more expensive if he’s not represented. This follows logically from 1. The more court time that is taken up dealing with a case, the greater the cost to the court, and ultimately, if the money can’t be recouped from the losing party, the taxpayer. Providing legal aid will usually save money in the long run, as lawyers will (a) advise the client robustly if the claim is devoid of merit, potentially avoiding the need for any further hearings; and (b) ensure that any trial is conducted much quicker, and therefore much cheaper, than if the individual was self-representing.
  3. The experience for the witnesses will be much more unpleasant if he’s not represented. Have you ever watched a sadistic criminal cross-examine a witness in court? Put another way, would you like to be cross-examined by a wild-eyed terrorist blundering his way through a series of irrelevant and potentially abusive questioning over several hours, punctuated by interruptions from the judge shepherding the questioner back on track? Or would you rather be cross-examined for 20 minutes, politely (and slightly ineffectually) by me, with my natty court dress and solemn demeanour? The prison officers who are the subject of the allegations by Adebolajo will have to give evidence and be cross-examined by someone. For their own comfort and dignity, I’d be prepared to chip in for this to be done professionally. Which brings us to the next point.
  4. The allegations are serious. Adebolajo claims that the prison officers held him by the head and arms in such a manner that he lost two teeth. If he is right, the truth is far more likely to emerge if his case is presented, and the questions are asked, by a trained professional.
  5. Convicted murderers have rights. Our darker selves might secretly welcome the news that a convicted murderer has had a good roughing up. No more than he deserves, right? But the mark of our civilisation is that we hold ourselves up as better than the people who harm us. We do not descend to vengeance, much less vigilantism. For what he has done, Adebolajo will be imprisoned for the rest of his life. That is his punishment. It does not follow that public servants have carte blanche to use unlawful violence against him. As despicable as we may find him, we cannot let his actions degrade our basic standards of justice. If we do, he has won. Therefore if his rights are breached, he is entitled to a remedy. It may not taste nice. But the rule of law does not require that justice be dispensed only to people we like.
  6. There is a wider issue of public safety if he is being truthful. Aside from Adebolajo’s rights, there are also the rights of other prisoners to consider. If he is truthful, and prison officers have used unlawful force against him, this needs addressing. Because prison officers are not just in charge of the Adebolajos of this world, but many other prisoners who, by nature or circumstance, are inherently vulnerable to abuses of power. And some of these prisoners will be remand prisoners awaiting criminal trial. They have not yet been convicted of an offence, and some will never be. There are innocent people in the charge of the state in our prisons. They deserve an environment where they are not subject to gratuitous state-sanctioned violence.
  7. Adebolajo will not be “given taxpayer cash” whatever happens. The beloved tabloid trope envisages giant, Wheel of Fortune-style novelty cheques being proudly handed over, or oodles of cash being ladled into wheelbarrows and delivered to Adebolajo in prison, for him to fritter as he sees fit. This is a nonsense. Any legal aid granted would be paid – at modest rates – directly to regulated solicitors and barristers. There is no financial benefit to Adebolajo at all. If we start from the premise that he has no money, and so will not be able to pay for legal representation come what way, the options are stark: either he doesn’t pay and is unrepresented, with the consequences above; or he doesn’t pay and is represented in some form, whether under a conditional fee agreement (“no win, no fee”), by lawyers acting for free (pro bono) or through legal aid. We don’t know the details, but the judge who does appears to think that only the latter is a viable option at this time.
  8. The law is for the benefit of us all. As the Supreme Court was at pains to point out to the oblivious Ministry of Justice when recently ruling employment tribunal fees to be unlawful, court cases do not only matter to the parties involved. I’ll leave the articulation of this point to Lord Reed:ED5B7877-8DF4-4B9E-AF62-6788697419CBEF549A28-9FDD-401E-B9AE-B90811A0C157C045B493-201C-4163-8BDC-266582F788FAD8CEEB25-B763-4E8A-889C-407412406379
  9. The outrage isn’t that Adebolajo might be granted legal aid, but that so many others are denied the legal aid and help they need. This is borrowed in its pithy entirety from a tweet by barrister Douglas Lloyd (@DouglasLloydUK). There is certaintly an argument of disparity and unfairness here; but not the one upon which most are alighting. The devastation of legal aid and soaring increase in court and tribunal fees over the past decade have served to exclude vast swathes of mostly poor and desperate people from the justice system. This case raises questions – but distracted by our own uncritical rage, we are asking the wrong ones.

Putting the above together, I think there’s a compelling case for saying that justice – to all involved – is best served by having this man legally represented. Legal aid may or may not be granted; I do not know enough about this field to opine. But if it is, it will not be a taxpayer-funded privilege lavished on an ungrateful terrorist; it will be a sensible and restrained direction of public funds towards ensuring that justice is served to all involved – government, claimant, prison staff, prisoners and taxpayers.  Which, when one looks at the judge’s comments in context, is exactly what he was saying:

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