Her Majesty's Solicitor General v Hamilton-Toogood

Permission to bring committal proceedings for criminal contempt requires a prima facie case and a judgment that pursuing the proceedings is in the public interest. The permission stage is not a provisional trial of the merits. The court should avoid detailed assessment of the precise strength of the case.

Unauthorised recording and publication of criminal proceedings may constitute contempt as well as criminal offences. The availability of summary criminal proceedings does not prevent contempt proceedings where the conduct presents serious risks to the due administration of justice. The gravity of the alleged conduct, its effect on the integrity of proceedings and the public interest are relevant. Personal difficulties and remorse may be relevant mitigation but do not necessarily justify refusing permission.

Her Majesty’s Solicitor General applied under CPR Part 81 for permission to bring committal proceedings against Emma Hamilton-Toogood. She was alleged to have recorded Crown Court proceedings concerning the prosecution of her partner and to have live-streamed the recordings through Facebook.

The respondent did not attend and was not represented. The court considered service, her communications through friends, alleged learning and mental-health difficulties, and whether the permission hearing should proceed in her absence. The central issues were whether the application disclosed a prima facie case of contempt and whether pursuing committal proceedings was in the public interest.

1. Permission granted. The court granted permission to proceed with committal proceedings concerning the alleged recording and publication of criminal proceedings.
2. The permission question was whether there was at least a prima facie case of contempt and, if so, whether it was in the public interest to pursue committal proceedings. The court adopted the approach in Her Majesty’s Solicitor General v Holmes [2019] EWHC 1483 (Admin) and Her Majesty’s Attorney General v Yaxley-Lennon [2019] EWHC 1791 (QB). The permission stage should not become a provisional assessment of the merits.
3. There was a prima facie case that the respondent deliberately recorded the Crown Court trial and deliberately disposed of the recordings with a view to publication. Section 4 of the Contempt of Court Act 1981 did not apply to recordings or photographs made in court.
4. The public interest required the proceedings to be brought. Prohibitions on unauthorised recording and publication protect the integrity of the trial process. The alleged repeated recording and live-streaming of sensitive parts of the trial, despite warnings, was sufficiently serious to warrant committal proceedings. The availability of summary criminal proceedings under section 41 of the Criminal Justice Act 1925 did not preclude contempt proceedings. The court applied the reasoning in HM Solicitor General v Cox [2016] EWHC 1241 (QB).
5. The respondent’s possible learning and mental-health difficulties, remorse and inability to obtain representation did not justify refusing permission. Those matters might amount to mitigation if contempt were later proved. The court encouraged her to obtain legal aid and representation.
6. The court was satisfied that service had been effected and that it was just to proceed in her absence. The approach in Sanchez v Oboz & Another [2015] EWHC 235 (Fam) provided relevant factors for that decision.

The court also considered the 2020 amendment to CPR Part 81 and granted permission on either possible view of its application to an extant application.