AS, R. v

The Crown Court may use its inherent contempt jurisdiction to punish intimidation of a witness connected with a trial. Where the allegation is deferred and tried through a formal procedure, rather than dealt with immediately and truly summarily, the court must nevertheless ensure that using contempt is necessary and proportionate and that the defendant receives a fair hearing.

The choice between formal contempt proceedings and referral for prosecution under a statutory offence lies within the judge’s discretion. Relevant considerations include prompt protection of witnesses, the clarity of the allegation, adequate preparation time, procedural safeguards and proportionality. The test for apparent bias remains whether a fair-minded and informed observer would see a real possibility of bias.

During the appellant’s trial at Manchester Crown Court for causing death by careless driving while unfit through drink or drugs, the principal prosecution witness gave evidence by video link. After leaving the court, she and her mother said that the appellant pursued and shouted at them, causing them to run back towards the secure court car park.

The jury later failed to agree on the trial charges. The trial judge then heard and determined an allegation that the appellant’s conduct was a contempt of court. He found the allegation proved and imposed four months’ imprisonment. The appellant appealed against conviction and sentence, contending that the matter should instead have been prosecuted under Criminal Justice and Public Order Act 1994, that the judge appeared biased, and that the sentence was excessive.

1. Appeal dismissed. Intimidating or frightening a witness in connection with proceedings may constitute criminal contempt. The Crown Court had inherent jurisdiction to punish that conduct.

2. The court distinguished a genuinely summary contempt process, with its exceptional and curtailed safeguards, from the deferred formal procedure used here. A formal hearing must still be fair and compatible with Article 6. Its use is justified only where it is necessary and proportionate, rather than by referral to prosecuting authorities.

3. The judge’s choice of procedure was within his discretion. Prompt action was important to protect witnesses and maintain the administration of justice, particularly because a retrial was pending. The allegation was clear from the served statements, the appellant had adequate time to prepare, the hearing allowed witnesses to be examined and defence evidence to be called, and the procedure closely resembled a magistrates’ court trial. It was proportionate to proceed in the Crown Court rather than await a separate prosecution under Criminal Justice and Public Order Act 1994.

4. Applying Porter v McGill, [2001] UKHL 67, the fair-minded and informed observer would not perceive a real possibility of bias. Dissatisfaction with the conduct of the original trial, and the revocation of bail after a serious allegation of witness intimidation, did not establish predetermination. The judge had fairly summed up the trial, made no adverse credibility finding about the witness, and would not try the retrial.

5. The four-month sentence was not manifestly excessive. Deterrent sentences may be required for interference with witnesses, including conduct that was not premeditated. Under section 258 of the Criminal Justice Act 2003, release after service of one half of a contempt sentence was unconditional; the appellant’s original argument based on the absence of ordinary early release was therefore not pursued.

• Court of Appeal (Criminal Division) — by [2008] EWCA Crim 138, dismissed the appeal against the finding of contempt and the four-month sentence.
• Manchester Crown Court — HH Judge Ensor found the appellant in contempt for intimidating a prosecution witness during the trial and sentenced him to four months’ imprisonment.