Edward Ellis v His Majesty’s Solicitor General

A deliberate breach of a civil restraint order is a criminal contempt where it is designed to interfere adversely with the administration of civil justice generally, rather than affecting only a particular claim. Criminal contempt requires sufficient seriousness.

For contempt by breach of an order, mens rea is established by knowledge of the order and an intentional act which breaches it. A specific intention to interfere with the administration of justice is unnecessary, although it may in any event be inferred from the circumstances. Contempt sentencing should consider culpability, harm, aggravation, mitigation, the adequacy of a fine, the custody threshold and suspension.

Kerr J found the appellant in contempt for procuring two applications in breach of a general civil restraint order. He imposed six months’ imprisonment for the fresh contempts and activated six months of an earlier suspended sentence, producing a total of 12 months’ immediate custody: [2023] EWHC 604 (KB).

The appellant appealed as of right. His submissions largely challenged the legitimacy of the proceedings and did not directly address the findings or sentence. The central issues were whether the breaches amounted to sufficiently serious criminal contempt, whether the requisite acts and mens rea were proved, and whether immediate custody was justified.

1. Appeal dismissed. Coulson LJ, with whom Lewison LJ agreed, upheld both findings of contempt and the 12-month sentence. The stay of the committal order was revoked and the appellant was required to begin his imprisonment immediately.
2. The alleged conduct was properly characterised as criminal contempt. Although the general civil restraint order was a civil order, the deliberate breaches were intended to disrupt civil justice generally and were not confined to a particular action. That characterisation required the threshold of seriousness identified in Director of Serious Fraud Office v O’Brien, [2014] AC 1246, which was plainly met.
3. The acts were proved beyond reasonable doubt. The distinctive language of both applications matched the features expressly identified in the restraint order. The appellant did not deny authorship, and no evidence was produced from the nominal applicants to establish that they had prepared the applications themselves.
4. The requisite mens rea was also proved. The appellant knew the terms of the order and intentionally acted in a way that breached it. No specific intention to interfere with the administration of justice was required. If it were, that intention could properly be inferred from his conduct and the circumstances.
5. The contempts were sufficiently serious because they wasted judicial resources and caused detriment both to the persons recruited to advance the appellant’s campaign and to other litigants whose cases were affected by the resulting demands on the court system.
6. The sentence was not excessive. Applying the approach in Liverpool Victoria Insurance Company Co Ltd v Khan, [2019] EWCA Civ 392, the court found high culpability and harm, significant aggravation, no evidenced mitigation or remorse, and no realistic prospect of rehabilitation. A fine was wholly inadequate, the custody threshold was passed, and immediate custody was necessary. There was no double counting in activating part of the earlier suspended sentence rather than treating its breach as a further aggravating factor.

• Court of Appeal (Civil Division) Dismissed the appeal, upheld the findings of criminal contempt and the 12-month immediate custodial sentence, and revoked the stay: [2023] EWCA Civ 585.
• King’s Bench Division Kerr J found two breaches of the general civil restraint order to be contempts and imposed six months for those contempts, with six months of a prior suspended sentence activated: [2023] EWHC 604 (KB).