IN THE MATTER OF AN APPLICATION
FOR AN ORDER OF COMMITTAL
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SPENCER
| HER MAJESTY'S SOLICITOR GENERAL
|- and -
|MS SOPHIE HOLMES
Mr Mark Brookes (instructed by Mohammed Hussain Solicitors) for the Respondent
Hearing Date: 22nd May 2019
Crown Copyright ©
Lord Justice Coulson:
2. The Factual Background
"I'm Sophie, and the shooter were Jordan Ross, and he already knows. I've admitted it to him. He told it to me. Jordan Ross, and all remember that, yeah? He's in jail for threatening me with a machete."
It is agreed that the reference to 'Ross' was an error on the part of the transcriber and the reference was to Jordon Rawson. This has been confirmed by the judge and DC Roebuck, the officer in the case who was also in court. It is also accepted on behalf of the respondent by Mr Brookes.
"While, fortunately, we know perfectly well who she is. How do you want to do this, because this is going to be done and it is going to be done properly and it's going to be done in a way that is fair to this man [Mr Webster] who is currently an innocent man in the midst of being cross-examined by the prosecution, so we have to balance everybody's interests here but primarily for the moment the right to a fair trial… I am thinking of the trial. In respect of Sophie Holmes, the court has powers that it can proceed against her. There is no urgency to exercise those powers, save and except the order that I make that she is prohibited from entering this courtroom again unless it is in respect of her own conduct. But you will need to give me chapter and verse before I do anything further about that."
3. The Issues
(a) Does the Divisional Court have the jurisdiction to deal with this application?
(b) If so, is permission required?
(c) If permission is required, what is the applicable test?
(d) Should permission be granted in this case?
4. The Jurisdiction of the Divisional Court and CPR Part 81
"The power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the court and to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately – so as to maintain the authority of the court – to prevent disorder – to enable witnesses to be free from fear – and jurors from being improperly influenced – and the like…
As I've said, a judge should act of his own motion only when it is urgent and imperative to act immediately. In all other cases he should not take it upon himself to move. He should leave it to the Attorney General or to the party aggrieved to make a motion in accordance with the rules in R.S.C.Ord.52. The reason is so that he should not appear to be both prosecutor and judge: for that is a role which does not become him well."
At pages 92H-93B, Lawton LJ came to the same conclusion, saying that "contempts which are not likely to disturb the trial or affect the verdict or judgment can be dealt with by a motion to commit under R.S.C.Ord.52, or even by indictment."
"There are two possible ways of dealing with criminal contempt: one by the exercise of the summary jurisdiction, the other by an application to Divisional Court."
"(2) Where contempt of court-
(a) is committed in connection with-
(i) any proceedings before a Divisional Court of the Queen's Bench
(ii) 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, or
(iii) proceedings in an inferior court, or
(b) is committed otherwise than in connection with any proceedings,
then… an order of committal shall be made only by a Divisional Court of the Queen's Bench Division."
"(2) This rule applies to cases where the contempt is committed-
(a) in connection with proceedings to which this Order relates;
(b) in connection with criminal proceedings or any proceedings in the King's Bench Division except where the contempt is committed in facie curiae or consists of disobedience to an order of the court;
(c) in connection with the proceedings in an inferior court."
"…(d) proceedings for attachment for contempt of court in the cases specified in this Order".
Order 59, r. 26 (1) provided that an application for leave (permission) to bring proceedings for committal had to be made to a Divisional Court, and that only a Divisional Court could make the order for committal (order a writ of attachment) .
"V. Contempt in the face of the court
Committal for contempt in the face of the court
(a) contempt has occurred in the face of the court; and
(b) that court has power to commit for contempt,
the court may deal with the matter of its own initiative and give such directions as it thinks fit for the disposal of the matter".
There is no other rule under the heading of Section V.
"III. Committal for interference with the due administration of justice
(1) This Section regulates committal applications in relation to interference with the due administration of justice in connection with proceedings…
(e) which are 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…
(3) A committal application under this Section may not be made without the permission of the court.
(The procedure for applying for permission to make a committal application is set out in rule 81.14.)…
Court to which application for permission under this Section is to be made
(1) Where contempt of court is committed in connection with any proceedings…
(e) which are criminal proceedings, the application for permission may be made only to a Divisional Court of the Queen's Bench Division…
Application for permission (High Court, Divisional Court or Administrative Court)
(1) The application for permission to make a committal application must be made by a Part 8 claim form which must include or be accompanied by –
(a) a detailed statement of the applicant's grounds for bringing the committal application; and
(b) an affidavit setting out the facts and exhibiting all documents relied upon.
(2) The claim form and the documents referred to in paragraph (1) must be served personally on the respondent unless the court otherwise directs.
(3) Within 14 days of service on the respondent of the claim form, the respondent –
(a) must file and serve an acknowledgment of service; and
(b) may file and serve evidence.
(4) The court will consider the application for permission at an oral hearing, unless it considers that such a hearing is not appropriate.
(5) If the respondent intends to appear at the permission hearing referred to in paragraph (4), the respondent must give 7 days' notice in writing of such intention to the court and any other party and at the same time provide a written summary of the submissions which the respondent proposes to make.
(6) Where permission to proceed is given, the court may give such directions as it thinks fit, and may –
(a) transfer the proceedings to another court; or
(b) direct that the application be listed for hearing before a single judge or a Divisional Court."
(i) Part 81 Section V (CPR 81.16) regulates the procedure for contempt in the face of the court, where that court is dealing with contempt committed in its own face. No permission is required.
(ii) Part 81 Section II (CPR 81.4-81.11) regulates the procedure for contempt by breach of an order or undertaking. No permission is required.
(iii) Part 81 Section III (CPR 81.12) regulates proceedings for contempt which falls into neither of these two categories, hence their exclusion by the words "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". Permission is required to bring contempt proceedings.
(iv) It follows, as a matter of construction, that CPR 81.12 is intended to deal with contempt in situations not covered by those other provisions. No permission is required in those other situations because the contempt is so obviously deserving of punishment if proved and there is no wider public interest which needs to be considered in allowing a committal application to proceed.
"The evident purpose of the wording [of r.81.12] is to ensure that the concurrent jurisdiction of those courts is preserved, not to identify and exclude committal applications where the law officers seek to invoke the recognised jurisdiction of the High Court".
For the reasons set out above, we agree.
5. Is Permission Required?
6. What Is The Applicable Test?
(a) Has the applicant demonstrated at least a prima facie case of contempt?
(b) If so, is it in the public interest that an application to commit should be made?
"The correct legal approach to the determination of an application for permission to bring committal proceedings was not in dispute on this appeal. The judge correctly summarised the relevant and well-known principles in paragraph 23 of his judgment as follows:…
iv) Permission should not be granted unless a strong prima facie case has been shown against the alleged contemnor- see Malgar Limited v RE Leach (Engineering) Limited  EWHC 843 (Ch), Kirk v Walton  EWHC 1780 (QB), Cox J at paragraph 29 and Berry Piling Systems Limited v Sheer Projects Limited (ante) at Paragraph 30(a).
That same approach was adopted by Birss J in Grosvenor Chemicals Limited v UPL Deutschland Gmbh  EWHC 1893 at -. Both cases were concerned with false statements of truth.
"The critical question, in this and every case, is whether or not it is in the public interest that an application to commit should be made. That is not an issue of fact but a question of judgment."
Although that was an application brought by a private individual seeking permission to commit a litigant having made a false statement of truth, the same question must arise on any permission application in committal cases. Indeed, we consider that it is the issue which overlays everything else on an application for permission to seek an order for committal for contempt in the face of the court.
7. Should Permission Be Granted In This Case?