England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		2nd February 2010

1. MR JUSTICE OPENSHAW: On 23rd June 2009, at the Crown Court at Blackfriars, the appellant was summarily convicted by His Honour Judge Marron QC of contempt of court. In the face of the court he was fined £1,000 with 28 days' imprisonment in default. He now appeals against conviction and sentence as of right under section 13 of the Administration of Justice Act 1960.
2. The background is as follows. The appellant had been arrested in May 2007 in possession of a bag which contained two guns with ammunition. He was interviewed about this and, after much prevarication, he claimed that the bag with its contents had been given to him by one Dean Murray. As a result of that Dean Murray was also arrested. In due course both were charged with possessing a prohibited weapon contrary to section 5(1)(aba) of the Firearms Act 1968, possession of prohibited ammunition and possessing ammunition without the relevant firearms licence. Their joint trial commenced on 15th June at Blackfriars Crown Court before Judge Marron and a jury.
3. During the trial the appellant gave evidence against his co-accused, who later gave evidence blaming the appellant. It was a cut-throat defence which, as is very usual in such circumstances, generated a good deal of bad feeling between the defendants. The jury were out deliberating for over a day, during which no doubt tensions between the co-defendants rose further.
4. The co-accused, Murray, was first in the indictment. Counts 1 and 4 were laid against him only. The jury convicted him of each count. The jury acquitted the appellant on count 5 and 6, but as the clerk of the court was asking them if they had agreed upon their verdict on count 7, the transcript records, and I refer to the actual words: "(Disturbance in court - shouting and swearing)". The judge asked the defendants to sit down. Seemingly they did so and the clerk resumed his questions and the jury then acquitted him on counts 7 and 8 as well, following which the transcript records that there was a "(Disturbance in court - crying)". The judge then asked the defendants to sit down, which they did.
5. The judge then, without it seems asking the defendant or his counsel for their observations, said that what he had seen was a serious contempt of court. Speaking of the appellant without at that stage spelling out precisely what he had seen, he said that he was "not the principal source of it but his behaviour was a clear contempt and will have intimidated the jury". He said that he took a serious view of what had happened. He said he would not tolerate outbursts like that, particularly in the presence of the jury. He would stand the case down to enable counsel to take instructions and remanded them in custody.
6. Mr Levy, counsel for the appellant at the trial and appearing also before us today, said, no doubt correctly, that he had not seen the incident since it had happened in the dock behind him. The judge, however, said that he (the judge) had seen exactly how it started and although the co-defendant had started it, the appellant's response was, as he put it, "a clear and outrageous contempt of court". The judge then apologised to the jury for what had happened and they retired. The judge then said what he had seen, and I had better read the account of what he says (page 8 of the transcript):

"The decision on this offence, the situation; I am sure you will exercise discretion ... but Mr Murray, having said one or two things about his name being mispronounced, then in fact turned towards his co-accused and began bellowing at him. The officers in the dock were very, very quick that he was trying to force his way past them and he was throwing fists in the air towards his co-accused, Mr Grant. It seems to me that for perhaps the first five to ten seconds Mr Grant did not respond but the behaviour was becoming worse and the dock officers and Mr Murray were being forced towards Mr Grant and Mr Grant was shouting back and waving his fist in the air and the whole thing moving out of the scope now, that sort of thing. You heard the level of the shouting and what troubles me most of all actually, you see scenes like that in front of a judge from time to time but I have rarely seen anything like this in front of a jury and they were clearly intimidated by what went on. So let me tell you I do take a very serious view of their behaviour. I will say this again, what precipitated it was the behaviour of Mr Murray. So there it is."

Before rising he said that once everyone had settled down he would review what he called the sentencing exercise in the afternoon.

7. In the afternoon he dealt with the defendants separately. He seemingly did ask Murray's counsel whether his contempt was contested. Counsel said it was not. Counsel mitigated on Murray's behalf and he was then sentenced for the firearms offences, with six months consecutive for the contempt. When the appellant was brought up the judge did not even ask counsel whether the contempt was contested; he seems to have assumed that it was not. Mr Levy then apologised on the appellant's behalf for what had happened. Mr Levy made the very good point that all those counts against the appellant stood or fell together and, having acquitted the appellant on counts 5 and 6, it was inevitable that they would also acquit him on counts 7 and 8, and he therefore had absolutely nothing to gain by interrupting the process of delivering the verdicts on those counts since his acquittal on those counts was, as we have said, inevitable. Mr Levy was able to put what he understood of the defendant's version (page 10, letter C):

"The defendant's desperate wish was to hear the verdicts on counts 7 and 8 for good reason. The last thing he was going to do was stop the jury from doing this. I think what he would have liked to have done was thank them. Mr Murray became agitated and after a few seconds, you said 10 to 15 seconds, the defendant reacted. It is Mr Grant's belief that Mr Murray said he would be putting him to sleep and certainly the officer heard the threat to my client's life. My client then became animated and under stress put up his hand in actual prayer and said, 'God is not sleeping'. That did not help the situation but it was not intended in any way to disrupt the court. You would have seen as the trouble was brewing, he was making sure he did not get too close to Mr Murray for obvious reasons."

The judge intervened to observe: "He did not walk towards his co-accused at all". Mr Levy said that his actions were appropriate and he was under very great stress. The judge did not agree. Mr Levy then urged the judge to fine him, rather than pass a sentence of imprisonment. The judge moved to sentence, saying this:

"Stand up, please. I think you ought to know immediately that your behaviour was grossly provoked by your co-accused, or your former co-accused, when you responded in an absolutely disgraceful way in the presence of the jury and your shouting and bawling contributed to the fear which the jury undoubtedly felt. Having said that, in effect, I also noticed one matter which I did not relate to your counsel in that as soon as you had done what you did, you actually sat down and I could see you saying sorry. I think that was in response to one of your family who was in the public gallery but it is a behaviour which will not be tolerated in any circumstances. There will be a fine of £1,000 and you will pay that at the rate of £20 a week."

8. It will be noticed that the rather important part of the narrative to the effect that the appellant immediately apologised was not given until after counsel had finished mitigating. Furthermore, the judge appears to have fined the appellant £1,000 without making any enquiry as to his means, let alone his ability to pay.
9. Since this hearing, and as part of his preparation for the appeal, Mr Levy has listened to the tape recording of the incident and has attempted to reconstruct the events in his grounds of appeal, the narrative of which reads as follows:

"... a male voice can be heard on the court tape saying 'You get what you deserved'.

A male voice, which may or may not be the same, can be heard saying 'What are you going to do now?'

... It is clear that the remarks were not made by Murray but were aimed at him. The learned judge ... did not seem to notice anything untoward in the Appellant's behaviour at this stage...

Thereafter Mr Murray can be heard shouting a number of expletives, but it is impossible to make out precisely what he is saying, due to the noise in the public gallery. At this point Mr Murray lost his cool [as Mr Levy puts it] and tried to attack the Appellant. There were 2 prison officers between the defendants, who were quickly reinforced, and managed to prevent Murray from reaching the Appellant. The Appellant was still standing as the verdicts were being taken but did nothing to go towards Murray. Unfortunately he could not leave the dock because Murray was nearer to the gate. According to the Learned Judge the Appellant did nothing for about 10 seconds.

It is common ground that the Defendant Murray shouted aggressively at Mr Grant 'I'll put you to sleep' 'You are a dead man walking'.

It is impossible to hear on the tape whether Mr Grant said anything, although it is common ground that he did. The only source as to what he said is Mr Grant himself who claims to have said 'my God does not sleep'. He put his hands up whilst saying that as if praying.

Someone then shouted 'please' from the public gallery. This was almost certainly the appellant's sister. The Appellant immediately sat down, said sorry and put his head in his hands. He took no more part in the incident.

The incident ... lasts approximately 35 seconds."

That, it will be appreciated, is a much fuller account of the incident than was given at the time.

10. We turn then to examine the relevant principles which the judge should have applied. There are currently no procedural rules dealing with summary contempt, but over the years the courts, particularly in R v Moran 81 Cr App R 51, have established certain principles which should ordinarily be observed when dealing with contempt cases. These include that: (a) a judge has the power to order the immediate arrest and detention of the suspected offender; (b) the decision to try a suspected offender summarily should be taken only when it is necessary to do so to preserve the integrity of the trial or the dignity of the court; (c) such a decision should never be taken too quickly and that time should always be allowed for reflection, if necessary overnight; (d) the suspected offender must be distinctly and clearly told what acts or conduct are alleged against him; (e) he should be allowed the opportunity of legal representation; (f) he should be allowed a reasonable opportunity properly to investigate the circumstances; and (g) the contemnor should be given an opportunity to apologise, which in an appropriate case might obviate the need for further action. We add that no-one should be convicted of contempt unless they distinctly admit it, or if they do not unless it be proved against them beyond reasonable doubt.
11. We turn to apply these principles to this case. The judge was here faced with a disruption of the trial as the jury were delivering their verdicts. It was imperative that he acted urgently and decisively to restore order, which he did. We have no doubt that he was right to deal with this incident summarily. However, we think that he was wrong not to have enquired from the appellant himself whether he admitted the conduct alleged against him and the fact that the conduct amounted to contempt of court. In effect, he assumed his guilt and proceeded accordingly. It was also unfortunate that the judge did not mention the fact that he apologised until during the course of his sentencing remarks. It would perhaps have been better if he had invited counsel to listen to the tape before embarking upon the summary trial. If he had done so it would have provided him with a more detailed narrative of what had happened. Furthermore, a fuller investigation into the circumstances would have allowed the appellant to make the point that any disturbance whilst the jury were returning could only damage his interests, that he was grossly provoked, that such part as he played was very limited, in effect confined to a few seconds, and was something which he immediately regretted and for which he immediately apologised. It may be that even if those procedural safeguards had been in place the judge would have found him guilty, but in the absence of these safeguards we do not consider the finding of guilt to be safe and the conviction for contempt of court must be and is quashed. We might add that the judge was wrong to have fined him as much £1,000 without seeking a proper enquiry as to his means and his ability to pay, so the sentence would have been quashed in any event.