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 the length of his committal (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  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 committal:

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 term 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 month term and also imposed a 10 months term for the Leeds contempt to run consecutively - 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 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.

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 term 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 in Mr Robinson's case.  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.

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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