England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14th August 2008

1. MR JUSTICE BEAN: This is an appeal pursuant to section 13 of the Administration of Justice Act 1960 against an order made in contempt proceedings. It raises the question of whether the Crown Court has power to deal with an allegation of contempt of court consisting of a breach of its own restraint order.
2. The appellant, Mr M, was made the subject of a restraint order under section 41 of the Proceeds of Crime Act 2002 by Her Honour Judge Taylor in the Crown Court at Southwark on 19th February 2008. The Crown alleged that he has made transactions which breach that order and thus constitute a contempt of court. They applied to the Crown Court for an order for committal.
3. The application came before His Honour Judge Goymer for directions on 30th June. Mr Krolick submitted to the judge, as he has submitted to us, that Crown Court has no jurisdiction to try an allegation of civil contempt of court and that such applications must be made to a Divisional Court. Alternatively, Mr Krolick submitted that, even if the Crown Court did have jurisdiction, the application was so defective that it should have been struck out anyway.
4. The Supreme Court Act 1981 section 45(4) provides:

"The Crown Court shall in relation to ... any contempt of the court, the enforcement of its order and all other matters incidental to its jurisdiction have the like powers, rights, privileges and authority as the High Court."

5. As to what the powers of the High Court are, Rules of the Supreme Court Order 52 Rule 5, so far as relevant, provides:

"Where contempt of court --

(a) is committed in connection with ...

(2) criminal proceedings, except where the contempt is committed in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court, then ... an order of committal may be made only by a Divisional Court of the Queen's Bench Division."

6. At first sight section 45(4) of the 1981 Act provides a simple answer to Mr Krolick's submission. A restraint order is the equivalent in criminal proceedings of a freezing injunction, formerly known as a Mareva injunction, in civil proceedings. High Court judges sitting alone regularly hear and determine allegations of contempt of court consisting of breaches of freezing injunctions. Since by section 45(4) of the 1981 Act the Crown Court has the like powers as the High Court in relation to contempt of court and the enforcement of its orders, why should a judge of the Crown Court not do the same? RSC Order 52 does not require any different conclusions since breach of a restraint order "consists of disobedience to an order of the court" and is thus not reserved to the Divisional Court. Restraint orders made under statute prior to the Proceeds Of Crime Act 2002 were made by single judges of the High Court and single judges dealt with breaches. Under the 2002 Act the jurisdiction to issue restraint orders has been transferred to single judges of the Crown Court and they can also deal with breaches.
7. Mr Krolick argues, first, that the word "contempt" in section 45(4) can only mean criminal contempt, insofar as the section is applicable in the Crown Court, because in 1981 there were no restraint orders, nor any other order which could be made by the Crown Court, disobedience of which carried the contempt sanction.
8. We do not accept that the meaning of the statute is that only such types of contempt as might have arisen in the Crown Court in 1981 are covered, nor that only such orders as the Crown Court would have been enforcing as the law stood in 1981 are covered.
9. Mr Krolick turned next to the Practice Direction which supplements Order 52 of the Rules of the Supreme Court, now scheduled to the Civil Procedure Rules, and the corresponding Order 29 of the County Court Rules, likewise scheduled to the Civil Procedure Rules.
10. By paragraph 1.1 it is provided that Part 1 of the Practice Direction applies to any application for an order for committal of a person to prison for contempt of court. Paragraph 1.2 lays out certain contempts based on disobedience to an order made in a county court, or other types of contempt arising in a county court where the county court has jurisdiction, and paragraph 1.3, on which he relies, provides that "in every other case, other than one within Part 2 of this Practice Direction, a committal application must be made in the High Court." [Part 2 relates to contempts in the face of the court and is inapplicable here.]
11. We do not consider that paragraph 1.3 of the Practice Direction PD52 has any application to the Crown Court. The reference is to every other case of committal governed by RSC Order 52 (or the corresponding county court provision) itself, and RSC Order 52 paragraph 1 refers to "the power of the High Court or Court of Appeal" to punish for contempt of court.
12. Mr Krolick next referred to RSC Order 52 Rule 5 which provides:

"Nothing in the foregoing provisions of this order shall be taken as affecting the power of the High Court or Court of Appeal to make an order of committal of its own initiative against a person guilty of contempt of court."

13. In DPP v Channel 4 Television Company Limited [1993] 2 All ER 517, a case to which we shall have to return later in this judgment, Woolf LJ said that the combined effect of section 45(4) of the 1981 Act and Order 52 Rule 5 was that the other provisions of Order 52 did not affect the power of the Crown Court to make an order of committal of its own initiative against a person guilty of contempt of court. We do not consider that that assists the appellant in this case.
14. Mr Krolick has referred us to three authorities which are said by him to point to a Divisional Court being the only court with jurisdiction, or at least the appropriate court to exercise the jurisdiction, to consider breaches of restraint orders made by the Crown Court. The first two are decisions of the Civil Division of the Court of Appeal and the third of a Divisional Court.
15. In Balogh v Crown Court at St Albans [1975] QB 73 the appellant planned to disrupt a sitting of the Crown Court by releasing a cylinder of laughing gas into the ventilation system. He was intercepted before he could do the deed and brought before Melford Stevenson J who found him to be in contempt and sentenced him to six months' imprisonment. The Court of Appeal quashed the finding and sentence. They held, first, that the appellant had not committed the contempt since his acts were only preparatory. Secondly, by the time the appellant was brought before the judge he was already in custody on a charge of theft of the gas cylinder. There was, therefore, no urgency justifying the court in exercising its power to institute contempt proceedings of its own motion, try them summarily and make an order for committal. The summary power extends only to contempt in the fact of the court or interference with the administration of justice which affects or is calculated to affect a trial in progress or about to start. In other cases a judge should leave it to the Attorney General or the party aggrieved to apply to a Divisional Court under RSC Order 52. (The requirement for urgency before the summary jurisdiction can be exercised was queried in Griffin (1989) 88 Cr App R 63, but that need not detain us here.)
16. We note that at page 89E of Balogh Stephenson LJ said that he did not accept the argument that the limits on the power of a superior court (which, of course, includes the Crown Court) to imprison a contemnor are defined or restricted by the Rules of the Supreme Court.
17. Rooney (1978) 68 Cr App R 78 was a case where a judge in the Crown Court fined a company director for contempt, finding that he had dismissed an employee for having been on jury service. It was held that the case of contempt was not made out on the facts, but, in any event, that this was an inappropriate case to be dealt with under the summary jurisdiction. There was no alleged contempt in the face of the court since the trial in which the employee had served as a juror was already over. Whether the employer was found in contempt and punished or not would have no effect on the criminal proceedings. This court therefore considered that it should have been left to the Attorney General to decide whether to apply for committal by motion to the Divisional Court under RSC Order 52. In any event, the judge should have not dealt with the case himself since it was "very undesirable for him to have been both prosecutor and judge."
18. Both Rooney and Balogh were cases of alleged criminal contempt, that is to say either contempt in the face of the court or conduct tending to interfere with a trial which is underway or just about to begin. There are two possible ways of dealing with criminal contempt: one by the exercise of the summary jurisdiction, the other by an application to a Divisional Court. Neither case has anything to say about civil contempt; that is to say breach of a court order carrying the contempt sanction. That brings us to Mr Krolick's third authority, the Channel 4 case, which is the one closest to the present case.
19. A judge of the Crown Court had made an order for disclosure of documents against Channel 4 under terrorism legislation. They refused to comply, citing the journalist's duty of protecting the confidentiality of his source. The DPP brought contempt proceedings by motion in the Divisional Court.
20. Woolf LJ said that in "this type of case" the application should invariably be heard by a Divisional Court. By "this type of case" we understand Woolf LJ to have meant an application against the media, which, even before the enactment of the Human Rights Act 1998, and a fortiori since then, raised substantial issues of principle. He was not referring to all contempt applications, nor even all civil contempt applications, emanating from the work of the Crown Court, since otherwise the detailed discussion which follows at 520G would have been unnecessary.
21. On the more general issue of jurisdiction to deal with civil contempts consisting of disobedience to an order of the Crown Court, Woolf LJ said at page 520E:

"It is also correctly accepted by all parties that within the case of these alleged contempts, which are said to consist of disobedience to an order of that court or a breach of an undertaking given to that court, both the Crown Court and the Divisional Court have jurisdiction to deal with an application for committal."

22. As Mr Krolick rightly says this observation is _obiter_ since in the Channel 4 case the DPP had chosen the course of applying by motion to the Divisional Court. Nevertheless, we regard it as significant that Woolf LJ, Pill J, Andrew Collins QC, David Calvert-Smith and Gareth Williams QC, as they respectively then were, and Jonathon Caplan QC all appear to have accepted that there was concurrent jurisdiction possessed by a Crown Court and the Divisional Court.
23. Woolf LJ went on at 520G to consider when it is appropriate for the alleged contempt to be dealt with by a judge in the Crown Court and when it is appropriate for it to go before a Divisional Court. He noted that the question of jurisdiction was "already under consideration", which appears to mean by the then Rule Committee. (Matters do not appear to have progressed any further in the intervening 15 years.) He said it would not be right for him to anticipate the result of that consideration and went on:

"In the meantime if an application is dealt with in the Crown Court then it is important that the need is recognised for justice not only to be done but to be seen to be done. The judge should not appear to be the prosecutor acting in his own cause. Here the comments of the Court of Appeal in Balogh v the Crown Court at St Albans should be borne in mind."

24. In the present case there is no question of the judge acting as prosecutor. The proceedings before Judge Goymer had been instituted by the Crown Prosecution Service. They were in effectively the same position as a claimant in civil proceedings who has obtained a freezing injunction and later alleges that the defendant has acted in breach of it. Unlike the Channel 4 case the present one does not raise any civil liberties issues of general importance. We can see no reason why the contempt proceedings should not be tried by a single judge in the court whose restraint order the defendant is said to have breached, just as would occur in the case of a freezing injunction.
25. Mr Krolick's final point on jurisdiction is that, if there were jurisdiction in the Crown Court, surely there would be an express provision in the Criminal Procedure Rules dealing with it, whereas in fact there is not. But the fact that there is no express provision in the Criminal Procedure Rules does not mean that the jurisdiction does not exist. There is no dispute, and could be no dispute in the light of the authority of Balogh, that the Crown Court retains its summary jurisdiction to deal with contempt of court in appropriate circumstances. We are not aware of any express rule dealing with that either. Indeed, before the relatively recent introduction of the Criminal Procedure Rules, there were many aspects of Crown Court work which were not the subject of specific rules under the old Crown Court Rules.
26. We note that earlier this year in R v Adewunmi [2008] 2 Cr App R(S) 52 this court heard an appeal against a penalty imposed in the Crown Court for breach of a restraint order. The court in that case noted at paragraph 13 of the judgment that it had also been told about a number of other cases in which sentences had been passed in the Crown Court for such breaches. No one appears to have taken the jurisdiction point which Mr Krolick has raised, either in the Crown Court or on appeal. We consider that counsel and the court in Adewunmi did not miss a trick because when analysed the jurisdiction point is, with respect to Mr Krolick, of no real substance.
27. Mr Krolick's fallback position is that the judge should have struck out the application for failure to comply with the requirements of RSC Order 52, for example, because the evidence in support was contained in section 9 statements rather than in affidavits.
28. However RSC 52 is, or, at any rate, its procedural provisions are, not directly applicable in the Crown Court and if they were the companion Practice Direction PD 52 paragraph 10 would apply, allowing the court to "waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect".
29. The judge did accept Mr Krolick's submission that the statement in support did not deal with the issues as it should have done and that there should be a fuller statement making it perfectly clear to the defendant what he is alleged to have done in breach of the order. The judge declined to rule at that stage on whether to strike out the application since he was not hearing the substantive application to commit, but merely giving directions and deciding the jurisdiction point. We are content to leave it to the judge when the hearing before him resumes, which we understand is to be on 21st August, to decide whether the material then before him is sufficiently clear and particularised to enable the contempt application to proceed. This appeal must be dismissed.
30. MISS WILDING: My Lord, might I raise one matter? It is simply the reporting of this matter, if there is to be any, and whether the court would give consideration to the anonymity to the defendant in any report. Clearly there are ongoing proceedings against Mr M.
31. LORD JUSTICE TOULSON: Yes, which will involve a jury.
32. MISS WILDING: Which are destined to involve a jury in early 2009.
33. LORD JUSTICE TOULSON: Yes. (Pause). Thank you for raising the point. We are inclined to take the view that any reporting should be confined to initials and M will be used in the transcript, which will obviously go to my Lord for approval. Other than that it does not occur to us that there is anything in the content of the judgment to jeopardise the trial.
34. MISS WILDING: No. My application was simply for the restricted use of initials rather than the full name of the appellant.
35. LORD JUSTICE TOULSON: Mr Krolick, any observation on that?
36. MR KROLICK: No, grateful for that indication.
37. LORD JUSTICE TOULSON: Thank you for raising that.
38. MR KROLICK: Can I raise two matters for your Lordship?
39. As has been pointed out, the jurisdiction point has never been taken in this matter. I would ask for leave to appeal to go to the House of Lords. My Lord, can I say this. This is not a criminal matter, so I suspect I don't need a certificate of a point of law of public importance. I think it is dealt with -- I have not got with me section 1 of the 1960 Act, but I am obliged to ask your Lordship for leave. That is my first application. If your Lordship refuses leave, then I would ask that your Lordship grant a representation order to enable a petition to be drawn to seek the leave of the House of Lords.
40. LORD JUSTICE TOULSON: Yes. (Pause). The answer is no to both requests.