England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 18th January 2007

1. Lord Justice Moses: This is an appeal, as of right, pursuant to section 13(2)(b) of the Administration of Justice Act 1960 against a finding of contempt. That finding was made as a result of what the judge believed was a contempt in the face of the court on 13th June 2006 at Croydon Crown Court. The matter took nine days to find its way to this court, and on 22nd June 2006 this court reduced the sentence of 28 days passed by the judge to one of seven days, but was unable to deal with the finding of contempt because the prosecution was not represented. This was unfortunate for two reasons. Firstly, the appeal should have been advanced much more speedily, and this is not the occasion to examine why there was that delay, and, secondly, it means that this court has already reached a conclusion as to the sentence by reducing it from 28 days to seven days. But in reaching that conclusion the court previously, on 22nd June, was careful not to reach any conclusion as to the propriety of the finding of contempt for the reasons it gave. Moreover, there is no particular significance in the order of seven days, by which the sentence was reduced, since by that time this appellant had already served nine days and it is plain from the words this court used that its intention was to ensure his immediate release.
2. The history of the powers of a court summarily to commit a person for contempt in the face of the court was dealt with in full by Lawton LJ in Balogh v St Albans Crown Court [1975] 1 QB 73 at page 92. It would be unwise to attempt to repeat that exegesis.
3. The Crown Court is a superior court of record -- see, as it now is but will no longer remain, section 45(4) of the Supreme Court Act 1981. It, therefore, has power to deal summarily with a contempt in the face of the court. It is a power conferred so that the court may protect the criminal justice process and all those who participate in it: witnesses, advocates, victims, defendants, and, particularly, the jury. Since that is the purpose for which the power is conferred that summary power must only be exercised where it is necessary to do so to achieve that objective. It must only be exercised where the contempt is clearly proved and where nothing else will do to protect the ends of justice: see R v Tamworth Justices ex parte Walsh [1994] COD 277.
4. Judges must, even though they are from time to time compelled to act immediately, on the spur of the moment, to protect the court from any further damage, bear that principle in mind. But we do acknowledge that there will be occasions where it is necessary to act immediately to protect the court processes. Further, such protection may require an element of deterrence. Though often that will be a somewhat idle element since those who misbehave in the face of the court are often driven to do so when suddenly overwhelmed by emotion. Frequently the best means of protecting the court is by the quiet authority exercised by the judge.
5. In order to act consistently with the principle that immediate committal to prison is a measure of last resort judges must also have in mind the procedural principles identified by Lawton LJ in Moran 81 Cr App R 51, particularly the principles that: firstly, the decision to imprison a person for contempt should never be taken too quickly, there should always be time for reflection as to what is the best course to take; and, secondly, that the judge should consider whether that time for reflection should extend over night. In the instant case that did not happen.
6. The jury had been considering a case of importing cocaine. The appellant is 19. He had, as it appears, only recently arrived at court because for some reason he had not learned that his mother was on trial. Having just arrived, he was there to hear her convicted of that serious offence and was in the public gallery when she was sentenced to 12 years' imprisonment.
7. The transcript shows, and the judge found, that on that sentence being passed, the appellant shouted out:

"To kill your child, yeah, and you wouldn't do? Threatened to kill your family and you wouldn't do it? I think anyone --"

The judge then intervened by which time the appellant had fled from the court.

8. The judge then ordered the detention of the appellant. He was detained. The judge then invited counsel for the appellant's mother to take instructions. It is plain from the judge's finding that he was concerned as to the manner in which those words were shouted and the gesture to the jury with which those words were accompanied.
9. What he said was:

"It is very frightening for jurors when this sort of thing happens. I am going to remand him in custody ..."

Then he said to Mr Selby:

"... take some instructions. At the very least I shall expect an apology from him and I am not saying that I won't find some way of dealing with him as well. So I will give you ten minutes to speak with him."

10. Those ten minutes were granted to Mr Selby. He took that opportunity to take instructions and then proffered on behalf of the appellant what he described as the most sincere apology not only to the court, but to the ladies and gentlemen of the jury. He had not intended to threaten the jury. It was then explained to the judge that the appellant had been overcome with emotion, not having found out that his mother was on trial, but seeing her not only convicted but sentenced to 12 years' imprisonment.
11. The judge reached the conclusion that the appellant had shouted at the jury, as he put it:

"... in an angry and in my judgment threatening manner, raising your arm towards them. You then rushed out of the court."

12. He repeated later, in his decision, that the appellant had shouted at the jury in a threatening fashion. He took the view that only an immediate sentence of imprisonment was appropriate and sentenced him to prison, as we have said, for 28 days.
13. The close of a trial is a moment of particular sensitivity and stress for a jury. Their anxieties in sitting in judgment on a fellow citizen can only be heightened if they are shouted at, or, worse, abused or threatened. We reject any notion that there can be no contempt where the trial has finished.
14. Mr Selby has contended that the conduct of the appellant was not a contempt. He says there was no intention to disrupt proceedings which were, in any event, concluded. We find no authority, still less any support, for the proposition that in order to prove a contempt it must be proved that the alleged contemnor intended to disrupt the proceedings. On the contrary, the description of the nature of a contempt given by Lawton LJ in Balogh at page 93 demonstrates the opposite. It is plain to us that this appellant was guilty of a contempt. The question as to what drove him to behave in that way is a separate matter.
15. The manner in which the words were spoken, however, and their effect on the jury is best appreciated by the judge. It is for him to assess the necessity for immediate action. We do know, now that we have had the opportunity, unlike the judge or counsel, to read the transcript, that the words themselves were not abusive. They did not in themselves offer any threat either to the judge or to the jury. It must, therefore, have been the manner in which they were said and the gestures with which they were accompanied which caused the judge to describe them as threatening.
16. It is of importance that this court respects the judge's own assessment of that which protection of the integrity of the trial requires. But in the instant case it is important to record that the trial had finished, although that is not to say that that means that no action needed be taken to protect the jury at all. But the trial had ended and the appellant had left the courtroom.
17. Since the power summarily to commit a person to prison must be a matter of last resort, it is incumbent on the judge to consider whether some lesser alternative to protect the court processes may be deployed. The judge must consider whether the need to protect the court process and those who participate in it, and in particular the jury, can be met by steps other than an immediate committal to prison.
18. In the heat of the moment there may be a perception in the judge of the need for speedy action and condign punishment, but the importance of the time for reflection is that it presents an opportunity to consider whether a less stringent course may be taken. Indeed, that time for reflection may itself avoid the need for any further action at all.
19. The need for careful consideration of a less severe sanction demonstrates the importance of the principle we have identified, as expressed in Moran, of the judge giving himself an opportunity for quiet reflection. If that opportunity is taken overnight, whilst the contemnor is in custody, as we have said, that very opportunity may itself provide the solution. We emphasise that the court has the power, as the editors of Archbold suggest, to detain a contemnor whilst it considers the proper approach to adopt: see R v Hill [1986] Crim LR 457.
20. In the instant case, the judge chose to act after an interval of only ten minutes. In our judgment, he was wrong to do so. He properly gave the appellant legal assistance, but, in our view, the judge did not give himself sufficient time to consider the alternatives to immediate imprisonment, or to consider the relevant principles accurately set out in Archbold. In so doing he erred as a matter of procedure.
21. We have already held that the appellant was guilty of a contempt in the face of the court. He spoke words in a threatening manner to the jury, who, even after they had delivered a verdict, were entitled to the protection of the judge so far as he was able. But we emphasise that that conclusion goes only to the question of whether there was a contempt. What matters frequently is not so much a finding of contempt, but rather an order for committal to prison consequent upon that finding. It by no means follows that a sentence of immediate imprisonment is necessary, even where a contempt has been committed in the face of the court.
22. This appellant was clearly and understandably upset at his mother's sentence of imprisonment for 12 years. The outburst can only have taken a few moments and, importantly, the appellant offered a full and immediate apology.
23. We take the view that the judge erred both procedurally and as a matter of substance in committing the appellant to prison at all. We think that those errors should be corrected by quashing the order for committal. The matter could and should have been dealt with by adjourning the case overnight with the appellant in custody whilst the judge considered the appropriate course to take.
24. It may be thought that our order is inconsistent with the views of this court in June, which did not have the benefit of the prosecution, but that court was compelled to act urgently so as to prevent a longer sentence being served by the appellant. It made clear that it was not pre-judging the question as to whether the order for committal should be quashed or not. But the question as to whether the order for committal should be quashed is of importance to this young man for the sake of his record. There was, in short, a contempt, but it was unnecessary to make any order for committal. We shall reflect that conclusion by quashing the order for committal.