Yaxley-Lennon (aka Tommy Robinson), Re

A failure to comply with Part 48 of the Criminal Procedure Rules does not automatically invalidate a contempt finding. The appellate court must determine whether the departure caused injustice, while recognising the importance of procedural safeguards where liberty is at stake.

A court acting of its own motion must identify the alleged contempt precisely and give the respondent a fair opportunity to obtain advice and answer it. Once any immediate threat to a trial has been neutralised, the court should ordinarily adjourn or consider referral to the Attorney General. A postponement order under section 4(2) of the Contempt of Court Act 1981 concerns reports of proceedings; it does not extend to unrelated offensive material.

The appellant challenged contempt findings and committal orders made at Canterbury Crown Court and Leeds Crown Court.

At Canterbury, he had filmed in and around the court building during a rape trial. He admitted contempt and received a three-month committal order, suspended for 18 months. At Leeds, while a jury was deliberating in a trial subject to a section 4(2) postponement order under the Contempt of Court Act 1981, he livestreamed material outside the court. The judge dealt with the matter that day, found contempt, imposed ten months’ committal, and activated the suspended three months.

The central issues were whether procedural breaches of Part 48 invalidated the findings, whether the Leeds matter should have been dealt with summarily, whether the conduct found at Leeds exceeded the reporting order’s scope, and whether the committal orders were properly recorded and imposed.

1. The appeal concerning Leeds was allowed. The finding of contempt and all consequential orders were quashed. The matter was remitted for a fresh hearing before a different judge, with conditional bail pending that hearing. The court refused extensions of time to challenge the Canterbury finding and committal order, save to direct correction of the court record.

2. The approach in Nicholls v Nicholls [1997] 1 W.L.R. 314 applied to Part 48. Compliance with the procedural rules is especially important because contempt may result in loss of liberty. Yet a defect does not automatically require a committal order to be set aside. The question is whether the contemnor suffered injustice; an order may stand or be corrected where there was no prejudice, and a rehearing may be ordered where fairness requires it.

3. There was no material injustice at Canterbury. The appellant, represented by leading and junior counsel, understood and admitted the conduct. The failure to serve a separate written statement of particulars caused no real prejudice. His advisers had also deliberately chosen not to press for greater particularisation for tactical reasons.

4. The Leeds process was fundamentally unfair. Once the video had been removed, the immediate urgency had passed. The judge should have adjourned the matter or considered referral to the Attorney General. No clear written or oral particulars identified the alleged breach, nor was it clear what conduct the appellant admitted. The judge also sentenced him for generic prejudicial remarks falling outside the scope of the section 4(2) reporting order.

5. Section 4(2) of the Contempt of Court Act 1981 permits postponement, rather than prohibition, of reports of proceedings. It does not encompass otherwise offensive comments which are not reports of the proceedings. The haste at Leeds also prevented proper investigation and presentation of mitigation before a lengthy committal term was imposed.

6. The court confirmed that contempt is not a criminal conviction. Records must describe a finding of contempt and committal, rather than conviction and sentence. The court further held that section 13(3) of the Administration of Justice Act 1960 was sufficiently broad to authorise a rehearing and bail pending it.

• Court of Appeal (Criminal Division): Allowed the appeal against the Leeds finding of contempt, quashed the committal order and remitted the matter for a rehearing before a different judge. Refused an extension of time to appeal the Canterbury finding and committal, except to correct the record: [2018] EWCA Crim 1856.
• Leeds Crown Court: On 25 May 2018, found the appellant in contempt for conduct said to breach a section 4(2) postponement order under the Contempt of Court Act 1981; ordered ten months’ committal and activated a suspended three-month committal order.
• Canterbury Crown Court: On 22 May 2017, found the appellant in contempt arising from filming in the court precincts and ordered committal for three months, suspended for 18 months.