Jersey Unreported Judgments

Contempt of Court - reasons.

[2023]JRC223

Royal Court

(Samedi)

15 November 2023

Crown Advocate L. Sette for the Attorney General

Advocate N. B. R. Mière for the Defendant.

judgment

the LIEUTENANT bailiff:

1.        Georgina Louise Bellot ('the Defendant') was indicted before us on 27 October 2023 charged with a single count of contempt of court.  After hearing counsel for both prosecution and defence, we sentenced the Defendant to three days' imprisonment, to be suspended for 12 months, indicating that our reasons for imposing such a sentence would follow.  These are our reasons.

2.        On Friday 13 January 2023 the Royal Court was in use for a trial, so the Samedi Court sat in the States Chamber.  Several signs are posted at the entrance and on the walls of the stairways; they list a number of restrictions that apply when people are in court, including that mobile telephones are not to be used. 

3.        The Defendant attended the Samedi Court in order to support someone who was due to be sentenced that morning.  She climbed the stairs to the public gallery that is set above the States Chamber and sat behind and above the Crown Advocate who was appearing.  From this position she could see the Crown Advocate's laptop computer screen.

4.        Just prior to the start of the sitting, Court Usher Dene Cassin issued a verbal warning to all present that mobile telephones should be switched off or turned to silent.

5.        When the Crown Advocate had finished addressing the court in relation to the prosecution in question, he took a seat.  The Defendant formed the view that he was viewing material on his laptop computer that was not relevant to the criminal proceedings and that he should not have been looking at it.  She took a photograph of the Crown Advocate's computer laptop screen, using her mobile telephone.

6.        After the morning session had finished, the Defendant told a Court Officer that she had taken a photograph of the Crown Advocate's laptop computer screen because he had been, "surfing the net" while the court had been in session.  She stated that this was unprofessional.  There is doubt as to whether she showed him the photograph that she had taken. [i]

7.        On 25 January police officers attended at the Defendant's home address to speak to her about an allegation that she had taken a photograph in court 12 days earlier.  She told them that she had deleted the image from her mobile telephone and showed them the gallery of recent photographs that she had taken, which did not appear to contain the photograph in question.  She was arrested and taken to Police Headquarters to be interviewed. 

8.        The Defendant made a formal complaint to the Attorney General about the conduct of the Crown Advocate.  This complaint was duly considered, and he was found to have conducted himself appropriately.

9.        In an interview with the police, the Defendant said that she had seen the Crown Advocate scrolling through photographs and videos, and had asked a press reporter who was seated next to her whether this was permitted, to which the reporter had responded in the negative.  She had not wished to interrupt the proceedings by speaking up at the time, but had a taken a photograph in order to show it to one of the court officials after the court had risen.  She also stated that she could not recall seeing any signs that told her that she should not use a mobile telephone during the proceedings, and could not remember the Court Usher having issued a verbal warning to this effect, though she did accept that she knew that she was not permitted to use her mobile telephone in court.

10.      The Defendant was charged with contempt of court and appeared in the Magistrate's Court on 7 August this year.  She entered a guilty plea and the matter was remanded to the Royal Court; as we have said, the sentencing hearing was held on 27 October 2023.

11.      The Crown in its Conclusions moved for a £200 fine or seven days' imprisonment in default.  In so doing it made allowance for the strong mitigation that is available to the Defendant.  She has previous convictions, but the last of these was in 2007; all the previous convictions are of a different character and, given their age, the prosecution treated her as being of good character.  The Defendant was cooperative in interview and entered a guilty plea on first appearance in the Magistrate's Court; and the offence only came to light because the Defendant had approached a Court Officer to tell him what she had done.

12.      Mr. Mière for the defence emphasised the mitigating factors that we have identified, adding that the Defendant had had no contemptuous intent - indeed, far from it.  She had thought that the Court Officer was a policeman.  She had not posted the photograph on social media; indeed she does not use social media at all.  She is unable to work as she has to care for her elderly father.  Counsel also drew our attention to the fact that this had been hanging over the Defendant's head for a long time and had been worrying her.  He concurred with the Conclusions, describing the Crown's Summary and Conclusions as 'sensible'.

13.      Whilst we can see why the Crown moved for a non-custodial sentence in the particular - indeed in our judgment exceptional - circumstances of this case, we did not agree that a fine was the appropriate sanction.

14.      There have been several Royal Court cases involving contempt of court, but we understand that, perhaps surprisingly, this is the first prosecution in connection with the taking of a photograph therein.  The Crown therefore helpfully directed our attention to two English cases.

15.      In the Court of Appeal case of R v Vincent D [2004] EWCA Crim 1271 the trial judge at Liverpool Crown Court had sentenced the Defendant to 12 months' imprisonment for taking three photographs, one of which was of the Defendant's brother, who was only identified as "GD" in the judgment.  GD was classed as a "double Category A" prisoner, who was in the secure dock on trial for serious Class A drug trafficking offences.  In the background of the photograph could be seen a prison officer; that officer had been part of the escort that had taken GD to court.  Another showed that there was someone in the witness box and the figure of the judge was also visible.  In that which he described as a 'chilling development' in the course of the main trial, which was complex and lengthy, His Honour Judge Clark indicated that a message should be sent out that illegal photography in court would be met by a sentence of imprisonment. 

16.      Delivering the judgment of the Court of Appeal, Mr Justice Aikens said at paragraph 1:

"... [This] case raises an important question of how the court should deal with a person who improperly and illegally takes a photograph in court in the course of a criminal trial... the problem of people illegally taking photographs in court is growing.  It is, in our view, a very disturbing problem."

17.      And at paragraph 15:

"We do not wish to lay down any general guidelines in this case, but some comments may be helpful. It is well known that taking photographs using mobile phones in court has become a major problem and concern in both the Magistrates' Courts and the Crown Courts of England and Wales. It is also of concern in the civil courts. The reason for this concern will be obvious after a moment's thought. Intimidation of juries and witnesses is a growing problem generally in criminal cases... A person could use photographs of members of the jury or a witness or advocates or even a judge in order to try to intimidate them or to take other reprisals. Witnesses who are only seen on a screen or who are meant to be known only by an initial could possibly be identified. The anonymity of dock officers or policemen who are involved in a case could be compromised if a photograph is taken and is used to identify them. It is clear, therefore, that illegal photography in court has the potential gravely to prejudice the administration of criminal justice."

18.      Further guidance came at paragraph 18, thus:

"...For less serious offences [than the instant one], and where security is less of an issue, then a much shorter sentence of imprisonment may well be appropriate.  In some cases a "clang of the gates" will be enough.  In other cases, for instance where a foreign tourist has inadvertently taken a photograph, perhaps in ignorance of English law, then it may be that imprisonment is not appropriate and that a fine would be the correct sentence.  But in this case, having considered the matter very carefully, we uphold the sentence of twelve months' imprisonment.  The appeal is dismissed."

19.      In R v Smith (Amanda Ann) [2016] EWCA Crim 1562 the defendant was sentenced to 21 days' imprisonment for taking a photograph on a mobile telephone in the lobby of the Canterbury Crown Court building.  It pictured four men making gestures of defiance and contempt in front of the court notice board.  Smith is similar to the instant case in that the image was rapidly deleted and the police officer on site could not find it on the mobile telephone with which the Defendant had taken it.  There were several mitigating factors.  She had been asked to take the photograph by an unrelated defendant in a case; the mobile telephone was not hers; the image had been taken within the court lobby, so there was no potential disruption of proceedings within the courtroom; she had entered a guilty plea and only had a caution on her record.  Nevertheless, the sentence was upheld on appeal.

20.      Delivering the judgment of the Court of Appeal, Mrs Justice Elizabeth Laing said at paragraph 11:

"11. The judge expressed her concern about the potential mischief of this. Such things can easily be put on the internet and communicated to people who have views not conducive to public order and thereby incite the commission of further offences, such as the events in Dover on 30th January 2016[ii] to which the judge referred."

21.      And at paragraph 13:

"There is no doubt that this conduct was a contempt of court: see HM Solicitor General v Cox [2016] EWHC (QB) 1241 at [32] and following.  Mr Wait accepted as much in his oral submissions. We also have no doubt that, when sentencing in such cases, a judge has to strike a balance between the interests of the administration of justice and the culpability of the contemnor."

22.      We accept that in the instant case there is no evidence that the photograph was put on the internet and indeed the Defendant denies that she did so.  Nonetheless, we agree that the potential mischief involved in taking a photograph on a mobile telephone in a courtroom is great.  This is a small jurisdiction and the risk of illegally-taken photographs being disseminated very rapidly and to a relatively wide audience is high; it carries with it also the potential of damaging the reputation of our justice system or even inciting public order issues.  The high level of confidence that the people of Jersey have in their courts, and the ability of those courts to administer justice unfettered by any type of interference, are matters of paramount importance.  Offences such as this carry a very real risk of damaging this confidence.

23.      In the instant case the Crown Advocate might have been reviewing confidential information such as the addresses of victims, the names of informants or those of protected or otherwise vulnerable witnesses, or legally privileged documents.  In our judgment it is impossible to underestimate the potentially very serious, perhaps even catastrophic, consequences of the unauthorised disclosure of highly sensitive and/or confidential information by taking a photograph of the prosecutor's computer screen.

24.      Mr. Sette drew our attention to s.41 of the Criminal Justice Act 1925, which deals with the "Prohibition on taking photographs &c." in court.  He did this presumably in order to give us something of a 'steer' in relation to the Crown's having moved for a fine of £200; breach of the prohibition carries a fine not exceeding level 3 on the standard scale, i.e. £1,000.

25.      We state for the sake of completeness that there is no corresponding statutory provision in this jurisdiction.  Contempt of court is a customary law offence and sentencing is accordingly at large.

26.      We could have regard to s.41 were we to consider it to be of persuasive authority, but in the context of the current offending, we do not.

27.      In any event it is clear that taking photographs in court can also be punishable as contempts of court in England and Wales.  Counsel in the present case did not draw our attention to the English Court of Appeal judgment in HM Solicitor General v Cox [2016] EWHC (QB) 1241, but it was, as has been seen, referred to in Smith, and we have thought fit to consider Cox of our own motion.

28.      The defendant Cox and his co-defendant Parker-Stokes took photographs in the Bristol Crown Court of their friend Sheppard during his sentencing hearing for murder.  They published some of the photographs on Facebook, a contempt aggravated by comments, variously supportive or worse of the murderer, and critical of the presiding judge.

29.      Mr. Justice Ouseley delivered the judgment of the Court, saying at paragraph 17:

"Although s.41 of the Criminal Justice Act 1925 (CJA 1925) makes it an offence to take pictures in court and also to publish them, each punishable on summary conviction by a Level 3 fine, the Solicitor General considered that such summary proceedings would inadequately reflect the gravity of the conduct in the present case and the wilful defiance and affront to the authority of the court. The context in which the photographs were taken, followed by their publication on social media, together with the "trophy" or "glorifying" element of taking and publishing the images, were among the main factors aggravating the contempts; the murder itself had been videoed by a person present at the scene, and the images of Sheppard had been designed, it should be inferred, to capture the  prohibition on what was being done in the images themselves.[iii]  The contemptuous statements accompanying the images on Facebook were another serious aggravating feature, as was the distress which such postings would obviously cause (and had in fact caused) to the victim's family..."

30.      It is clear that the contempts of court in Cox were much more serious than the single act of contempt that fell to our consideration.  The case is, however, an illustration of the principle that in serious contempt of court prosecutions in England and Wales, the courts are not constrained by s.41 of the Criminal Justice Act 1925.   To proceed by way of a contempt of court prosecution is plainly more appropriate in cases that require either swifter action or more condign punishment than a summary criminal charge.

31.      A further example of the potentially serious consequences of taking illegal photographs in court is afforded by paragraph 24 of the Cox judgment:

"24. The real and specific risk of serious interference with the proper administration of justice are (sic) evident.  Although the taking of the photographs was not noticed by any responsible person at the time, and these illegal acts did not in those circumstances disturb proceedings, the serious risk posed by photographs taken during the sentencing hearing to its proper conduct is obvious.  If the taking of the photographs had been observed, the proceedings would have suffered a grave distracting interruption, perhaps at a very sensitive stage..."

32.      We return briefly to the Defendant's statement that she did not recall seeing any signs indicating that she should not use a mobile telephone while in court, neither could she remember hearing the usher give a warning about using mobile telephones before the Samedi Court started, albeit she was aware that she was not permitted to use her mobile telephone in court.  Even had she been wholly unaware of the prohibition, the following extract from Cox is apposite:

"72. In the case of the person breaching the criminal law, it is not necessary that he should know what the law is before his deliberate and illegal act, risking interference with the due administration of justice, can be treated as a contempt; no court order, whether in the form of a notice or not, is necessary for that crime to constitute a contempt.  A person cannot defend himself by evidence that, ignorant of the criminal law and unaware of the prohibition on photography, he could not intend to interfere with the administration of justice.  If there were no signs prohibiting the taking of photographs in the part of the building where the act takes place or prohibiting the use of mobile phones in court, and there may be none say in canteens, the court could not be left powerless to deal with the risk created to the administration of justice as a result of ignorance of the criminal law on the part of the person whose acts create or risk creating the interference. The same applies to publication of illegally taken photographs in the Facebook postings."

33.      In our judgment it is right and proper that a robust approach be adopted to any attempt to interfere with the administration of justice by the taking of illegal photographs within the precincts of our courts.  The message must go out, loud and clear, that offences of contempt of court by taking a photograph or recording during court proceedings in this jurisdiction are serious and will attract an immediate custodial sentence, save in exceptional circumstances.

34.      It was for this reason that we declined to impose a financial penalty.

35.      On the particular facts of this case, there were, in our judgment, exceptional circumstances.  We have referred at paragraphs to 11 and 12 above to the mitigation that is available to the Defendant.  As we have said, it is strong mitigation, but there are two factors of particular significance.  One is that she effectively wrote her own indictment, inasmuch as, unlike the other cases to which we have made reference, no one saw what she did or latterly became aware of what she had done via the public domain, and the photograph was hastily deleted.  If she had not volunteered to the Court Officer what she had done, the offence would not have come to light.  The second important factor is that the Defendant had no contemptuous intent.  She took the photograph in a naïve and misguided attempt to help to put right something that she perceived to be wrong.  We are also mindful of the delay in bringing this case to sentencing, which was not explained to us, albeit the delay would not have been exceptional of itself.

36.      Taking all these factors into account, we were satisfied that, taken together, they amounted to exceptional circumstances.  Accordingly we suspended the three-day prison sentence for a period of one year, which is the minimum period of suspension allowed by Article 2(1)(a) of the Criminal Justice (Suspension of Prison Sentences) (Jersey) Law 2003, and duly issued the explanation as required by Article 2(4) of that Law.

Authorities

R v Vincent D [2004] EWCA Crim 1271.

R v Smith (Amanda Ann) [2016] EWCA Crim 1562.

Criminal Justice Act 1925.

HM Solicitor General v Cox [2016] EWHC (QB) 1241.

Criminal Justice (Suspension of Prison Sentences) (Jersey) Law 2003.