Thursday, 5 July 2018

Tommy Robinson appeal ~ observations

Update 18 July - Mr Robinson' appeal was heard by the Lord Chief Justice (Lord Burnett) sitting with Mr Justice Turner and Mrs Justice McGowan.  In the event, the appeal seeks to have both the Canterbury and Leeds contempt findings quashed because of procedural errors.  The court reserved judgment and said it hoped to give its decision by the end of July.  A report on the day's proceedings is at The Independent 18 July.  The reporting restriction relating to trials at Leeds remains in force.

Update 12 July - The appeal by Tommy Robinson (Stephen Christopher Yaxley-Lennon) will now be heard by the Court of Appeal next Wednesday, 18 July.  It appears that he is challenging his sentence (13 months in all) for contempt of court.  Lord Burnett, the Lord Chief Justice, will preside.

Post:

Mr Yaxley-Lennon - aka Tommy Robinson - remains in prison following his committal on 25th May for contempt of court - Previous post 1st June.  It was reported by supporters of Mr Robinson (HERE) that 10th July was set for an appeal against sentence to be heard but the date was cancelled because "the government's lawyers say they're not ready."  Unsurprisingly, that has been contrasted with the fact that Mr Robinson was arrested in Leeds and imprisoned within the space of around 5 hours.  I have not been able to find any official statement as to why the appeal date was cancelled.

The conduct:


On 25th May, from outside the Crown Court at Leeds, Mr Robinson used Facebook Live to broadcast in relation to an on-going trial.  The broadcast, which lasted for over an hour, took place as defendants arrived for the morning court hearing.  Police Officers outside the court building were aware for most (perhaps all) of the time that he was "live streaming."

Photography etc:

The Criminal Justice Act 1925 section 41 should be noted.   Note section 41(2)(c) regarding "in the precincts of the building in which the court is held."   The taking of photographs when prohibited by section 41 can be dealt with either by way of a prosecution or as a contempt.   Defendants are clearly parties to the case and photographing them entering the building could be caught by section 41.  The word "precincts" is difficult to define but standing close to the court entrance would almost certainly be regarded as within the precincts.  The  2016 Guide on Reporting Restrictions issued by the Judicial College contains this:



Postponement order:

Fair and accurate contemporaneous reporting of criminal trials is normally permitted but the law is complex and contains many restrictions on commenting, reporting, photography etc.  The law is concerned to give defendants (whoever they may be) a fair trial and, sometimes, the court will impose reporting restrictions.

A "reporting restriction" applied to the trial at Leeds - it was a "postponement order" under Section 4(2) of the Contempt of Court Act 1981 and, as far as I know, it still applies.  One problem is to know when a reporting restriction is in place.  In Scotland, the existence of such notices is published via a website -  HERE.

The sentence:

At the hearing of the contempt case, Mr Robinson was represented by experienced counsel and the press were able to attend.  The contempt was admitted and remorse expressed.  Mr Robinson was in breach of a suspended sentence of 3 months imprisonment for contempt of court which had been imposed in 2017 by the Crown Court at Canterbury.  The judge activated the 3 months imprisonment and also imposed a 10 months sentence for the Leeds contempt - consecutive sentences - so 13 months in total.

Publication:

The Judicial College published Reporting Restrictions in the Criminal Courts 2016 (revised May 2016)  which draws attention to Practice Direction: Committal for Contempt of Court - 26 March 2015.  The Judicial College document - at para 5.5 - says this -

As at 5 July 2018, there is no such publication of the Judiciary website.  The reasons for this are not known to me.  Mr Robinson's contempt at Canterbury is reported - HERE.

Right of appeal:

There is a right of appeal under the Administration of Justice Act 1960 section 13.  Section 13(3) provides - "The court to which an appeal is brought under this section may reverse or vary the order or decision of the court below, and make such other order as may be just; ...."

At an appeal against sentence the court will take into account all the factors - e.g. details of the course of conduct constituting the offence; the attitude of the contemnor (e.g. genuine remorse, what was known to the contemnor at the time) and so on.  The court will also look at sentencing for similar matters in previous cases.

In contempt cases, the individual has the right of appeal already described and this is not subject to a permission stage ("single judge" process).  The court has power to vary the order of the court below and make such order as may be just.  In other words the court can vary the sentence. but could it be increased?

In standard criminal appeals (e.g. an appeal against a sentence for (say) robbery) the Court of Appeal is not empowered to increase sentence - Criminal Appeals Act 1968 s.11(3).  Time in custody pending determination of an appeal is normally reckoned as part of any sentence but, under section 29, the court can order that the period (or part thereof) from lodging the appeal to its determination will not count towards the sentence, and in effect has to be served again.  The section 29 power has been used to deal with unmeritorious appeals in those instances where the single judge had refused an appeal and the application had been renewed before the full court - see R v Gray and others [2014] EWCA Crim 2371 and the discussion at 2 Hare Court and also here.  Where permission for the appeal has been granted, this power is not available - section 29(2)(a).

All of this makes it difficult to predict the outcome of an appeal against sentence and, in this post, no predictions are made.  No doubt those advising Mr Robinson will be well aware of the "loss of time" provision.

Bias?

A further twist to this arose from the possibility that the President of the Queen's Bench Division (Sir Brian Leveson) might sit on the appeal.  It has been claimed that, during a radio interview with Joshua Rozenberg, Sir Brian said that Mr Robinson was guilty. The interview was on Radio 4's Law in Action prrogramme and may be viewed HERE.  At around 3 mins 40 seconds into the interview, Sir Brian gave the example of "a man" who had recently videoed material which he fed into the internet and "which did constitute contempt of court."  Mr Rozenberg asked whether the man was Tommy Robinson and Sir Brian replied that it was.

It is obviously entirely possible that Sir Brian when saying "did constitute contempt of court" meant that Mr Robinson had been held to be in contempt - (indeed, he had admitted it).  Nevertheless, Sir Brian's comments have been interpreted as meaning that Sir Brian has pre-judged any appeal.

This is interesting because we now understand the appeal to be against sentence only and so, on one view, it ought not to matter whether Sir Brian believes Mr Robinson to be guilty.

Bias may be either actual or apparent.  The test is summarised by the House of Lords in Abdroikof [2007] UKHL 37 - Lord Bingham at paras.14-17.   The legal test is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

As Lord Bingham pointed out, the concern is more often about about appearance and his Lordship cited the famous dictum of Lord Hewart CJ - R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, 259 -
    ". . . it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."
For now, I intend to leave it here and wait and see how this matter develops.  As they say - keep you posted !  I now understand that Mr Robinson's appeal is set for 24 July.

It is reported that Mr Robinson has asked that his supporters do not attend at the Royal Courts of Justice where his appeal will be heard.

Further consideration of this matter from a practising criminal barrister is at Barrister Blogger - Tommy Robinson - will his world class legal team get him out of prison?

I recommend reading the Law Commission's Project on Contempt and, in particular, Contempt of Court: Court Reporting.
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18 comments:

  1. An excellent and balanced summary on this subject. My understanding is that the challenge against sentence is based on the belief that his sentence was disproportionately harsh. 13 Months Total (10 months for this Offence and 3 months for the Suspended Sentence handed down in May 2017). I believe Courts take a very dim view on Offenders who are shown leniency but who then go out and do pretty much what they were clearly warned in no uncertain terms not to do by Heather Norton QC... as Stephen did. Is there any similar case which you could draw attention to which will illustrate that 10 months jail for this offence was unnecessarily harsh/lenient please?

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  2. to save you time and Trouble, BarristerBlogger came up trumps (pardon the pun)

    Come on though! 13 months for contempt of court? That’s unprecedented.

    No, it’s not unprecedented at all. The maximum sentence is 2 years imprisonment. Andrew Keogh, editor of Crime Line Law, and someone with an encyclopaedic knowledge of the criminal law, has pointed out that there have been dozens and dozens of cases where contemnors have been sentenced to between 12 and 24 months. Both of Mr Robinson’s sentences were less than 12 months, although combined of course, they were just over.

    There is no case law involving precisely similar conduct, but one case which has some parallels is R v. Vincent D [2004] EWCA Crim 1271, where the brother of a defendant took pictures on his mobile phone of a witness, a prison officer and the defendant himself inside the court-room during a trial. The photographs were of poor quality and it wasn’t possible to identify the witness or the prison officer. The brother admitted contempt. He said he had taken the photographs for fun. The Crown Court Judge imposed a sentence of 12 months, pointing out, amongst other things, the considerable risk that the trial, in that case a long-running drugs conspiracy, might have had to have been abandoned and started all over again. The Court of Appeal upheld the sentence.

    What is, if not unprecedented, at least remarkable about the case is Mr Robinson’s flagrant disregard of the shot across his bows in Canterbury, and his repetition of almost exactly the same conduct. A refusal to obey the clear orders of the court is generally regarded as a pretty important aggravating feature. If a burglar gets a 3 month suspended sentence for a burglary in 2017, he should expect to get a much longer, consecutive and immediate sentence for carrying out an almost identical burglary 12 months later. The principle is the same for contempt of court.

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  3. You seem to have put together a very fair assessment of the situation, Marc, and it's a refreshing change from all the misinformation we've been subjected to, both from the media and partisan Robinson supporters. I have to admit that I'm very disappointed to hear that Robinson's appeal will only deal with the sentencing, because I have serious concerns about the a misuse of s2(4) of the Contempt of Court Act, and the police overstepping their powers by arresting him for breach of the peace (which I don't think is justified by then later charging him with a different offence). If I'm right and the judge and the police exceeded their powers, I feel this should be publicly examined, but the appeal case will probably just focus on the length of the sentence, and the mainstream media is not questioning the premise on which Robinson was arrested and convicted.
    Since we last communicated on your previous thread about this case, I've made a video on the relevant legislation and guidelines, and I'd be very interested in your views on it. It's half an hour long, so I'll totally understand if you don't have time to look at it. https://youtu.be/HPuUgZg_B_s
    As a postscript, I emailed Leeds Crown Court asking for a copy of the judgment that should have been published on the judiciary website. They sent me a link to a form I can fill in to get a full transcript, and I would have to pay for the 'transcribing'. I also asked for a copy of the reporting restrictions on the three linked trials, explaining that I'm making a YouTube video (and am therefore a 'publisher' under the terms of the Act), but, despite sending one reminder, have yet to receive it.

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    3. Please also see the note in the post about Criminal Justice Act 1925 section 41.

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    4. The Tommy Robinson Facebook Page, ostensibly Championing the Right to Free Speech/Freedom of Expression has blocked me from making any comment or responding to any post by any means - ho hum. However from a snippet I gleaned from the commentary of Ezra Levant, verified in an article from The Independent, Stephen is also appealing his convictions at Leeds and Canterbury. Now his legal costs are being funded by a US Think Tank, I would be surprised if his convictions for mortgage fraud, assault etc. are not challenged as well and he is reborn as the Messiah. If someone like Yaxley-Lennon can spout off as he does during Court Proceedings, approaching and addressing Defendants, running inside of Court and taking photographs (Canterbury), live streaming then these are very dark days for British Justice in my view.

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    5. I am awaiting the appeal decision before commenting further.

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  4. Thank you very much for your detailed response. I find all this quite fascinating, but am rather frustrated by the lack of access to (a) the reporting restrictions in question and (b) the judgment. Regarding the latter, I pressed Leeds Crown Court on this again, and received a terse reply that they "have today informed the judiciary to update their website", implying that it's the judiciary's tardiness we have to blame. That was on Tuesday, and it's not been published yet. I feel that until we can see both the judgment and the reporting restrictions, we're rather blundering around in a fog of speculation.
    I was interested in your statement that once an order is made, ANY reporting is restricted, which isn't my understanding of the guidelines, which state that the restrictions must not only be justified, but proportionate. This view would seem to be supported by the pro-forma used for issuing an order under s4(2), which implies that the concern isn't with ANY reporting, but with the reporting of evidence given in court:
    "The specific purpose of making this order is to avoid a substantial risk of prejudice to the administration of justice [in the proceedings] [in
    proceedings on indictment T.......], namely that [reports of the evidence given in the proceedings will prejudice the fair trial of proceedings on indictment T.......] [or otherwise state the substantial risk]."
    I've pressed Leeds Crown Court once again for sight of the original order, but their tardiness appears to match the putative tardiness of the judiciary. I'll let you know if I hear anything.


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    1. Thank you. We do need to see the Order and also the reasons given by the judge for the committal to prison.

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  5. This is really nice and interesting post because we now understand the rights of appeal against sentence.
    Thanks for sharing.....

    https://www.boothlaw.co.nz/

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  6. I would like to comment here and also on Mr Y-L's "support" pages, using my forensic "skillz" (which I'm told are considerable). But I won't even start if I'm blocked on here. OJ, ball in your court.

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    1. Not blocked. Please comment if you wish though I do moderate comments before publishing them.

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  7. Further to my earlier argument that the reporting restrictions on the three linked trials in Leeds should have been proportionate and not have extended to 'any reporting whatsoever', it seems the Lord Chief Justice agrees with me! I noted the following tweet by Ezra Levant from the Royal Courts of Justice during the appeal:
    Ezra Levant 🇨🇦 @ezralevant
    Jul 18
    Lord Chief Justice, quotes the Leeds judge: "I made an order prohibiting publication of anything relating to these trials..." The Chief suggests that is too broad, and doesn't comply with the law!

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    1. We shall see when judgment is handed down. Nevertheless, there was a reporting restriction in force preventing any reporting.

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  8. I think I also read that the Lord Chief Justice agreed with the defence's claim that Stephen Lennon's position on the pedestrian thoroughfare didn't constitute filming within the precincts of the court. I'd suspected that was the case as the OED defines a precinct as an area within a boundary. I think you (and many others) have interpreted the word wrongly, thinking it means 'in the vicinity'.
    Regarding publication of Marson's judgment, it's still not available (but the very recent case of Cliff Richard v BBC has already been published, so it seems the judiciary website is not as slow to act as the officials at LCC would have us believe). The Crown Court finally sent me a copy of a reporting restriction, but for the wrong case - they sent me the one imposed when Stephen Lennon was convicted instead of for the three linked trials.

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    1. The blogpost does not contain any interpretation of the word "precinct". The post - under the sub-heading Photography - points out what is in the available guidance. Again, the judgment is awaited to see if the court says anything about this.

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