England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
The Honourable Mr Justice Treacy
Sitting in the Crown Court at Luton

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th March 2006

Lord Justice Hooper:

1. Mohammed Yousaf (now aged 49) and Shabina Akhtar (now aged 29) were convicted by Treacy J. of contempt of court on 25 January 2005 in the Crown Court at Luton, following a summary hearing instigated by the judge. On 4 February 2005, the trial Judge gave detailed rulings for their convictions. No penalty was imposed upon either appellant.
2. Treacy J was at the time trying a number of defendants for offences, including murder, arising out of the death by stabbing of 20 year old Kamran Shezad. Mohammed Yousaf is the father of the deceased and Shabina Akhtar is the deceased's sister.
3. The trial ended on 4 February. It was a difficult trial. Although the family of the deceased had behaved impeccably, others had not. As the judge wrote in a letter to the Criminal Appeal Office:

The trial was conducted in an atmosphere of hostility between supporters of the deceased and those accused.

4. Also as he said during the course of giving reasons for his finding that the appellants were guilty of contempt:

I have seen in this courtroom only two days ago unruly conduct by young Asian men expressing dissent. I know that yesterday outside this court building police had to be called to disperse a number of excitable young males. I make plain straight away that those two events which I have recited are in no way to be taken as the responsibility of these defendants …

5. The subject matter of the contempt was a letter created, as the judge found, by the two appellants. It read:

TO WHOM IT MAY CONCERN:

Kamran Shezad was stabbed in Wardown Park on 20th August 2003. After spending 9 days in intensive care he passed away on 29th August 2003. The police took 14 months to compile a case against 18 people charged with his murder.

The trial started on 12th January 2005...eight men have pleaded guilty to various charges in connection to Kamran's death. Their pleas have been accepted and they are to be sentenced according to their pleas.

Since they have pleaded guilty many other charges against them have been dropped. Kamran was stabbed four times, three times in the back and once in the leg which proved fatal. The courts have not even charged anyone for in possession of a dangerous weapon. Initially five men were charged for murder and using the knives. Also two men were charged with "possession of an imitation firearm with intent to commit an indictable offence". Even these charges have been dropped.

The point of us as Kamran's family writing all this to you is to ask, is this justice? Can you help get justice for Kamran? The charged will only lightly sentenced, then they should. Was Kamran's life worth only a couple of years in prison for those charged and they will be out again and they will do the same to someone else.

We want to know are we the victims or are the charged victims, because the charged are treated as the victims and their young lives are taken into consideration. What about Kamran? He was only 20 as well he had all his life ahead of him... he was not given a chance. Why have these people been given a chance to rebuild their lives after spending time in jail?

ARE THEY THE VICTIMS OR WAS KAMRAN A VICTIM?

DID HE DESERVE WHAT HAPPENED TO HIM?

The family's of the charged confront our family at court and shout slogans, that their sons are innocent and that they will walk out free. The charged have no remorse and they also make very insensitive and harsh remarks to our young boys at court and the police say nothing to them, instead our boys get told to shut up.

IS THIS JUSTICE?

Kamran's father and brothers get intimidated in court everyday...these young men are bailed and are free to walk away from court everyday and they walk around in The Town Centre in gangs.

Please help us to get justice for Kamran!!

The trial is still on.

TODAY IT IS OUR FAMILY! TOMORROW IT COULD BE YOUR FAMILY!

If you can help us get justice for Kamran please contact: Shabina on [numbers given]

Or Contact Mohammed Yousaf on [numbers given]

6. The charge against the two appellants read:

You are in Contempt of Court by being party to the production or dissemination of the document headed 'To Whom It May Concern' and beginning with the words 'Kamran Shezad was stabbed.....'

It will be noted that the offence charged and of which the appellants were convicted was one of contempt, not attempted contempt.

7. The judge made the following finding about the creation of the document:

I find that the defendants in this case, the two defendants, Shabina Akhtar and Mohammed Yousaf, were party to the creation of the offending documents. I infer that from the content of the document itself. I infer that from the fact that the document was e-mailed to the MP's assistant Miss Sultana by Shabina Akhtar and I infer it from the contact telephone numbers of the two defendants which are to be found at the foot of the document and I infer that from the absence of any evidence to show that the creation and transmission of the document to the MP was done by any person other than Mohammed Yousaf and Shabina Akhtar or without their knowledge, authority or consent.

8. As to dissemination the judge said:

The only evidence of dissemination of the offending document put before me relates to the document which was e-mailed by the female defendant to Miss Sultana, the MP's assistant. The local MP was dealing with a complaint by Mr Yousaf as to the way in which the Crown and the CPS were handling the current prosecution. That is a perfectly legitimate matter of complaint for a citizen to make to his MP.

The document which Miss Sultana received was e-mailed by her to a police officer in London and also by her to a colleague in Westminster in the employment of the same MP. I concluded that the conduct of Miss Sultana in disseminating the document did not create a real risk of prejudice to the course of justice and, accordingly, I discharged her after a submission of no case to answer.

9. The judge went on to hold that the document was addressed to a section of the public:

It is an invitation to them to take action in relation to the way the trial is being conducted and an invitation to them to attend in the vicinity of the court house and to act in a way designed to influence the proceedings taking place, inviting them to take action.

10. The judge however did not rely on the dissemination of the document to the MP's assistant as the contempt. To the extent to which Mr Wade sought to argue the contrary, we disagree.
11. The judge continued:

The question I have to consider is whether there is a substantial risk that by the creation of the document the course of justice would be seriously impeded. Substantial risk in this context means a real risk, as opposed to a remote possibility. It is a risk which is not minimal and not insubstantial. I conclude and find that the creation of this document did create such a risk and that it would have been disseminated to those to whom it was plainly targeted but for the prompt action of the police in drawing it to the attention of the court.

I conclude and am sure, as I must be, that these defendants intended adversely to interfere with the course of justice taking place in this court and that they intended to do so by the creation of this document. Once the document was created in the format which is before the court, I am sure that it was their intention to circulate it to others in a manner which would lead to there being a real risk of interference with the court process.

There is, in fact, in the outcome no evidence that the document in the end had that effect. That is not the test to be applied. The document did not have the intended effect because it was initially sent to the local MP's office and the onward transmission of that from the local MP's office led to the prompt action by the police which led to the matter being brought before this court promptly and action being taken by prohibiting any further dissemination of the document and by laying charges or allegations in relation to contempt of court. I am sure that, had such action not been taken, the document would have been further disseminated and its use in that way would have been harmful to the trial process but, as I observe, prompt action by the police and the Crown appears to have pre-empted the intended mischief arising. That does not mean that the original act of creation with the intent I have found was not a contempt of court. For those reasons I find that both defendants are guilty of contempt of court by being party to the creation of the document. The lack of dissemination of the document is, of course, a highly relevant factor in mitigation of the offence of contempt of court … (Underlining added)

12. The judge makes it clear in this passage, as the underlined words show, that (to use the words of the charge) the appellants were party to the production of the document. Is that sufficient?
13. There are many different forms of contempt, some statutory and some common law. Contempt requires behaviour "involving an interference with the due administration of justice" ( A-G v. Leveller Magazine Ltd [1979] AC 440, per Lord Diplock at 449). The only relevant possible contempt in this case was, in our view, publishing matter calculated to prejudice the fairness of the trial over which Treacy J was presiding. As to that form of contempt Bingham LJ in A-G v Sport Newspapers Ltd [1991] 1 WLR 1194 accepted the following proposition: at common law, it must be established that the publication of the material created a real risk of prejudice to the due administration of justice in a case which is pending or imminent and that the material was published with the specific intent of causing such a risk.
14. We turn to Balogh v. St. Albans Crown Court [1975] QB 73, upon which Mr Bennathan relies. Lord Denning MR set out the facts which had led up to Balogh being summarily convicted of contempt (page 81):

There is a new Court House at St. Albans. It is air-conditioned. In May of this year the Crown Court was sitting there. A case was being tried about pornographic films and books. Stephen Balogh was there each day. He was a casual hand employed by solicitors for the defence, just as a clerk at £5 a day, knowing no law. The case dragged on and on. He got exceedingly bored. He made a plan to liven it up. He knew something about a gas called nitrous oxide (N₂O). It gives an exhilarating effect when inhaled. It is called "laughing gas." He had learned all about it at Oxford. During the trial he took a half cylinder of it from the hospital car park. He carried it about with him in his brief case. His plan was to put the cylinder at the inlet to the ventilating system and to release the gas into the court. It would emerge from the outlets which were just in front of counsel's row. So the gas, he thought, would enliven their speeches. It would be diverting for the others. A relief from the tedium of pornography. So one night when it was dark he got on to the roof of the court house. He did it by going up from the public gallery. He found the ventilating ducts and decided where to put the cylinder. Next morning, soon after the court sat, at 11.15, he took his brief case, with the cylinder in it, into court no. 1. That was not the pornography court. It was the next door court. It was the only court which had a door leading up to the roof. He put the brief case on a seat at the back of the public gallery. Then he left for a little while. He was waiting for a moment when he could slip up to the roof without anyone seeing him. But the moment never came. He had been seen on the night before. The officers of the court had watched him go up to the roof. So in the morning they kept an eye on him. They saw him put down his brief case. When he left for a moment, they took it up. They were careful. There might be a bomb in it. They opened it. They took out the cylinder. They examined it and found out what it was. They got hold of Balogh. They cautioned him. He told them frankly just what he had done. They charged him with stealing a bottle of nitrous oxide. He admitted it. They kept him in custody and reported the matter to Melford Stevenson J. who was presiding in court no. 1 (not the pornography court). At the end of the day's hearing, at 4.15 p.m., the judge had Balogh brought before him. The police inspector gave evidence. Balogh admitted it was all true. He meant it as a joke. A practical joke. But the judge thought differently. He was not amused. To him it was no laughing matter. It was a very serious contempt of court."

15. As to the law Lord Denning said (pages 85-86):

The conduct of Mr. Balogh

Contempt of court is a criminal offence which is governed by the principles applicable to criminal offences generally. In particular, by the difference between an attempt to commit an offence and an act preparatory to it.

"It has often been said that to constitute an attempt the act must be proximate to and not remote from the crime itself. ... It must be left to common sense to determine in each case whether the accused has gone beyond mere preparation": see Reg. v. Smith (Roger) [1974] 2 W.L.R. 1, 13 by Lord Reid.

When this case was opened, it occurred to each one of us: Was Mr. Balogh guilty of the offence of contempt of court? He was undoubtedly guilty of stealing the cylinder of gas, but was he guilty of contempt of court? No proceedings were disturbed. No trial was upset. Nothing untoward took place. No gas was released. A lot more had to be done by Mr. Balogh. He had to get his brief case. He had to go up to the roof. He had to place the cylinder in position. He had to open the valve. Even if he had done all this, it is very doubtful whether it would have had any effect at all. The gas would have been so diluted by air that it would not have been noticeable. In these circumstances the question at once springs to mind: Had he gone so far as to be guilty of an attempt? Were not his acts merely preparatory acts falling short of an attempt? Suppose a man steals a car and drives up to a house intending to break into it, but the police arrive before he gets anywhere near the door - even before he gets out of the car. Clearly he is guilty of stealing the car. But he is not guilty of attempting to break into the house. He had the criminal intent to break in, but that is not enough. So here Mr. Balogh had the criminal intent to disrupt the court, but that is not enough. He was guilty of stealing the cylinder, but no more.

On this short ground we think the judge was in error. We have already allowed the appeal on this ground.

16. For the same reason as those given by Lord Denning, we also think that the judge was in error. The production of the document was a merely preparatory act and did not constitute contempt. For these reason alone we would allow the appeal and quash the conviction.
17. We should add that another ground of appeal gave us considerable concern albeit that we do not need to decide the issue. As Mr Wade accepted following an examination of the transcript, counsel for the appellants at the trial (not Mr Bennathan) was under the impression at the time of the hearing that the defendants were "charged" with a strict liability contempt regulated now by sections 1-7 of the Contempt of Court Act 1981. There is no doubt that the judge in his reasons for his finding of contempt on 4 February was dealing with common law contempt. The judge wrote in a letter:

Although it is plain from the transcript of 24.1.2005 (Vol.3) that both the appellants' counsel and I strayed into the language of the Contempt of Court Act 1981, I had intended to proceed at common law.

18. The "straying into the language of" the 1981 Act is shown in the following passages from the judge's ruling that there was a case to answer:

A submission is made to me by Mr. Mian on behalf of both Mohammed Yousaf and Shabina Akhtar that I should make a finding that at this stage of the proceedings, there is no case for his two clients to answer.

The submission is made on two bases: first of all, that this publication is not covered by Section 2(1) of the Contempt of Court Act. In my judgment that submission is misconstrued, or mis-conceived. The strict liability rule which relates to active proceedings applies to a public addressed to the public at large or any section of the public. The document which I have before me is, in my judgment, plainly capable of being so construed. It ends with a plea to 'Help us [the family] of Kamran Shazad get justice for him'. It informs the reader of the document that the trial is still on, and concludes, "Today it is our family. Tomorrow it could be your family", and then gives contact numbers - namely, the contact numbers of Miss Shabina Akhtar and Mr. Mohammed Yousaf.

In terms of to whom the public (sic) was addressed, plainly in the terms in which it is couched, and in the matters which I have just highlighted, it is something which is not merely a memorandum to be circulated to a local MP in advance of some hoped-for meeting in order to discuss the handling of the case and the merits of the criminal justice system as perceived by the family of Kamran Shazad. If that was so, the memorandum would not have been couched in the terms in which it has been couched. Nor would there have been any need to include the contact numbers for Mr. Yousaf and Miss Shabina Akhtar. That submission is, in my judgment, entirely without merit.

The second submission made to me is that because the evidence in relation to the now discharged third person, Ushrat Sultana, demonstrates that she, in performance of her role, working as an administrative assistant to the local MP, forwarded the document at the heart of the case to a senior police officer, and to another colleague within the MP's office, that it should follow from that that I should find that Section 2(2) has not been satisfied, it in effect being submitted that there is no substantial risk of the course of justice in these proceeding being seriously impeded or prejudiced."

19. Whether or not counsel should have realised that the judge was not intending to rely on the strict liability provisions in the 1981 Act is not relevant. The fact is that he apparently thought that the contempt charged was one regulated by the 1981 Act and there remains a risk that the appellants were prejudiced by that. The decision made by counsel to call no evidence after the judge ruled that there was a prima facie case of contempt could well, as Mr Bennathan submits, have been influenced by his misunderstanding that the contempt was a strict liability offence not requiring intent.
20. For these reasons the appeals are allowed and the convictions quashed.