Phelps, R v

For contempt committed in the face of the court, a judge must balance the need for prompt and decisive action with safeguards against a sentence imposed in the heat of the moment. A contemnor has no absolute right to legal advice, but should, where practicable, have an opportunity to obtain advice, advance mitigation and apologise. A short adjournment will usually assist reflection and may be appropriate even in a serious case.

An appellate court may reduce a summary contempt sentence where the absence of those safeguards created a real possibility that genuine mitigation or remorse would have affected its length. The seriousness of the contempt and the need to protect court staff remain central to sentence.

The appellant pleaded guilty at Milton Keynes Magistrates’ Court to possessing an offensive weapon. He was committed to Aylesbury Crown Court for sentence. During mitigation, he became violent, assaulted dock officers and abused the judge. Judge Mowat dealt with the conduct summarily as a contempt in the face of the court.

She imposed the statutory maximum of two years’ imprisonment for contempt, consecutive to a 12-month sentence for the weapon offence and an activated four-week suspended sentence. The appellant appealed only the contempt sentence. He contended that, although summary disposal was justified, the judge should have allowed time for reflection, advice, mitigation and a possible apology before sentencing.

Disposition

Appeal allowed in part. The sentence for contempt was reduced from two years’ to 21 months’ imprisonment.

1. The court had jurisdiction because an appeal lies as of right from a Crown Court order punishing contempt under sections 13(1) and 13(2)(bb) of the Administration of Justice Act 1960.

2. The resident judge had been correct to refuse an application to purge the contempt. The appellant had received a determinate term for criminal contempt. Although section 14 of the Contempt of Court Act 1981 preserves the common-law power of early discharge, that power did not extend to a fixed-term committal. The civil-contempt procedure discussed in Delaney v Delaney [1996] QB 387 did not apply to contempt in the face of the court. The court relied on the distinction drawn in R v Montgomery [1995] 2 Cr App R 23.

3. Nevertheless, section 155(1) of the Powers of Criminal Courts (Sentencing) Act 2000 gave the Crown Court power to vary or rescind sentence. The request to purge might appropriately have been treated as an application to vary the sentence.

4. The summary procedure was justified by the need to protect the court’s authority and to respond decisively to extreme violence. However, the guidance in R v Moran (1985) 81 Cr App R 51 remained applicable. A judge should reflect before imprisoning for contempt and, where feasible, allow the contemnor to obtain advice and to apologise. There is no absolute right to legal advice in every case.

5. The judge had acted a little hastily. A short adjournment could have enabled counsel to take instructions, present mitigation and convey a genuine apology. The appellant’s conduct was exceptionally serious and the two-year starting point was not inappropriate. But there was a real possibility that mitigation and remorse would have led the judge to impose a somewhat shorter term. The sentence was therefore reduced to 21 months’ imprisonment. By section 258(2) of the Criminal Justice Act 2003, the appellant would serve only half of that sentence and be released unconditionally in respect of it.

• Court of Appeal (Criminal Division) — allowed the appeal in part and reduced the consecutive contempt sentence from two years’ to 21 months’ imprisonment.
• Aylesbury Crown Court — on 19 June 2009, Judge Mowat imposed two years’ imprisonment for contempt in the face of the court, consecutive to the other sentences.
• Milton Keynes Magistrates’ Court — on 11 May 2009, the appellant pleaded guilty to possessing an offensive weapon and was committed to the Crown Court for sentence.