1 August 2018 No, Tommy Robinson’s court win is not a victory for “freedom of speech” The case of Stephen Yaxley-Lennon is about procedural rules, not political repression. Getty Sign UpGet the New Statesman's Morning Call email. Sign-up On 1 August 2018, the Court of Appeal (Criminal Division) handed down judgment in the appeal of Stephen Yaxley-Lennon (aka Tommy Robinson), partially allowing the appeal and directing a rehearing at the Crown Court. What does this mean? Has Tommy been proven innocent? Is this a victory for freedom of speech? Let’s break it down. 1. How did this all start? Yaxley-Lennon was committed to prison for 13 months on 25 May 2018, after attending a trial at Leeds Crown Court and streaming a livefeed on Facebook in which he broadcasted details of the trial and of the defendants. That particular trial was subject to reporting restrictions imposed by the judge, prohibiting reporting of the details until the conclusion of the trial, and of other linked proceedings. By broadcasting in the way that he did, Yaxley-Lennon was in breach of the reporting restriction, an act that amounts to contempt of court. A year earlier, he had committed a separate contempt of court at Canterbury Crown Court by broadcasting prejudicial material about the case. On that occasion he had been made subject to a suspended sentence of three months. On 25 May 2018, when he was found to have committed contempt of court again, he was given ten months for the new contempt, and the three months from Canterbury were “activated” and ordered to run consecutively, making a total period of imprisonment of 13 months. 2. What is contempt of court? Contempt of court is a broad, catch-all term for various offences against the administration of justice. The law(s) of contempt are designed to safeguard the fairness of legal proceedings and to maintain the authority and dignity of the court. Some contempts are set out in statute, including the aptly-named Contempt of Court Act 1981. This sets out what is referred to as “strict liability contempt” – the rule that it is a contempt to publish any matter that creates a substantial risk of serious prejudice or impediment to the course of justice in legal proceedings, irrespective of the intention behind the publication. The reason is straightforward. The priority in every criminal case is ensuring a fair trial. This of course matters not just to the defendant, whose liberty is on the line, but to the witnesses, complainants, victims and public. Prejudicial material – such as televised speculation over whether a defendant “did it”, or orchestrated campaigns by special interest groups seeking to secure one type of verdict for political reasons – could potentially influence a jury. We don’t sequester juries in England and Wales (barricade them in hotels, cut off from the world for the duration of trials). They are instead allowed to continue their normal lives, but are given firm directions by judges not to conduct their own research into the case they are trying. The reason, juries are told, is twofold. Firstly, a jury’s own independent research runs the risk of being unreliable, even more so in the era of fake news. Deciding the case on flawed information risks catastrophic miscarriages of justice. Secondly, it is not fair to the parties. The advocates in court address the jury and make arguments on the evidence. If juries have taken into account their own private research about which the advocates are unaware, the parties are unable to assess or test its reliability, or to address the jury on what their client (either defendant or prosecution) says about it. Thirdly, strict rules of evidence operate in criminal trials to filter the evidence that juries hear in a case, to ensure it is (a) relevant, (b) reliable and (c) not overly prejudicial to the defendant. It rather defeats the point if as soon as a juror turns on the TV they are confronted by a perma-tanned bozo offering half-baked opinions on the very matters that a judge has ruled a jury shouldn’t be told about. 3. So nobody can report on criminal trials, is that what you’re saying? No, far from it. Anything can be reported that is not prejudicial (and which is not subject to reporting restrictions – see below). And if something prejudicial is reported in the course of fair and accurate reporting of an ongoing case, there is a specific statutory defence available to publishers (which includes newspapers, TV and social media users) who can show they were providing “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith”. Similarly, publications can contribute in good faith to discussions of public affairs or matters of public interest if the risk of prejudice created is merely incidental to the discussion. So, to give a topical example, the media is allowed to discuss and debate the way in which we should deal with the rising incidence of acid attacks, even though there are many such trials ongoing across the country and there is arguably a risk of prejudice in ingraining hostile attitudes among potential jurors. No media outlet has been accused of contempt, and nor is anyone likely to be, for taking part in this general discussion. So we can see that the law gives considerable latitude to the press and ensures that the media do not shy away from accurate, factual reporting of criminal proceedings, or of discussing matters of public interest. The idea is to balance the importance of open justice with the centrality of ensuring a fair trial. 4. So is that the only way that contempt of court can be committed? Do you have to be prejudicing proceedings? Not always. Other contempts are more eclectic, such as the prohibition on taking photographs or moving images inside a court building (or even drawing a picture – court sketch artists have to draw outside the court from memory – section 41 of the Criminal Justice Act 1925). Then there are contempts that strike at the authority of the court, where there is no requirement that the fairness of proceedings be prejudiced. There are what are referred to as “civil contempts”, where, for example, an order made by a court ordering one party to do something is breached, and the other party complains to the court. There is also a common law offence of “criminal contempt”, which is defined by the courts as “conduct that denotes wilful defiance of, or disrespect towards the court, or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself.” This might include refusing to answer questions in court, physically disrupting court proceedings, interfering with witnesses or jurors (where not charged as a distinct offence of witness intimidation or perverting the course of justice) or defying a judge’s order. Such as, for instance, a reporting restriction. Contempt – however committed – carries a maximum penalty of committal to prison for up to two years. Note that slightly tortured phrasing – “committal to prison”, rather than “sentenced to imprisonment”. It’s a distinction which becomes relevant at the appeal. 5. What is a reporting restriction? I thought you said people are allowed to report fairly and accurately on live criminal cases? The starting point of our criminal justice system is that justice must be seen to be done. However, the law provides for exceptions to open justice, known generally as “reporting restrictions”. Reporting restrictions apply in a wide range of situations – from automatic restrictions preventing the identification of a complainant in a sexual allegation, to restrictions preventing reporting of Youth Court proceedings, to discretionary restrictions protecting the identity of child witnesses in the adult courts. Further details, if you are interested, can be found here. One breed of restriction order is something called a “postponement order”, under section 4(2) of the Contempt of Court Act 1981. Postponement orders are not unusual, particularly where there are a series of linked trials – for example, where allegations of drug networks involving 30 defendants are concerned, there will be several trials (it not being physically possible to accommodate 30 defendants in a single courtroom). To avoid jurors having their deliberations contaminated by what they might read or hear about the earlier linked trials, reporting of all of them is often postponed until the end. Where there is a separate-but-related issue, such as a contempt of court involving a third party, this can also be the subject of a section 4(2) order. The test is: Would a fair, accurate and contemporaneous report of the proceedings (or part thereof) published in good faith create a substantial risk of prejudice to the administration of justice in those or other proceedings? Is an order postponing the publication of such reports necessary and are its terms proportionate? Would such an order eliminate the risk of prejudice to the administration of justice? Could less restrictive measures achieve the objective? On the specific facts of this case, does the public interest in protecting the administration of justice outweigh the strong public interest in open justice? 6. Back to Tommy Robinson – how was he in contempt of court? He was dealt with for two contempts of court. It helps to take them in turn. On 8 May 2017, during the course of a rape trial at Canterbury Crown Court involving four (Asian) defendants, Yaxley-Lennon attended court and attempted to film the defendants for an online broadcast entitled “Tommy Robinson in Canterbury exposing Muslim child rapists”. He was thwarted by the judge, who made arrangements for the defendants and jurors to leave court through alternative routes, and so settled for filming himself on camera, both on the court steps and inside the court building, preaching to his online followers about “Muslim paedophiles”. He was interrupted and told by court staff that recording was prohibited (section 41 of the Criminal Justice Act 1925), but continued to record, insisting that he had been told by a different court that he was entitled to film the defendants (notwithstanding that court buildings are plastered with signs reminding people not to do this). His video diatribe – in which he said that “the paedophiles are hiding”, that the police had asked him not to “expose” them as paedophiles (presumably on the basis that they were, at that time, defendants in a live trial) but that “we will”, and that he would be “going round to their house” to catch the defendants on camera – thus continued. The judge hearing the rape trial was made aware of this, and he was brought before court to be dealt with for contempt of court. It was held that this behaviour was capable of prejudicing the ongoing trial. The finding of the judge, from the judgment, was that in acting in this way, Yaxley-Lennon had committed a “criminal contempt” – what is otherwise known as a contempt “in the face of the court”. He was also in contempt by virtue of filming in breach of section 41. He was committed to prison for three months, but this was suspended for a period of 18 months. What this meant, as he was told, was as follows: “[Y]ou should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought, a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court. In short, Mr Yaxley-Lennon, turn up at another court, refer to people as “Muslim paedophiles, Muslim rapists” and so and so forth while trials are ongoing and before there has been a finding by a jury that that is what they are, and you will find yourself inside. Do you understand?” Fast forward to this year. On 25 May 2018, Yaxley-Lennon attended Leeds Crown Court to “report” on an ongoing trial. (The subject of this trial is still subject to reporting restrictions and so is not mentioned here. I will include an update on my blog when the restriction is lifted.) He live-streamed a Facebook video in which he made various comments about the defendants, including reading out their names and referring to their religion, ethnicity and questioning the need for reporting restrictions. He encouraged people to share the video, which many did. This was at a time when, as Yaxley-Lennon knew, a “postponement order” under s.4(2) of the Contempt of Court Act 1981 was in place, which prohibited any reporting on the details of the trial until the conclusion of a “linked trial” – as explained above. If you breach a reporting restriction, you are in contempt of court. This is irrespective of your intent or motive. And this is where Yaxley-Lennon found himself. Arrested by police (initially for a breach of the peace, but then dealt with in court for contempt – this is entirely unremarkable, despite the attention given to it by Yaxley-Lennon’s supporters) and brought before the judge facing an allegation of contempt. Contempt having been admitted, Yaxley-Lennon’s barrister advanced mitigation, and HHJ Marson committed Yaxley-Lennon to prison for a total of 13 months. Of this time, ten months was for the new offence, with the three-month suspended sentence activated and ordered to run consecutively. The process was quick – five hours from arrest to imprisonment. 7. What were the grounds of appeal? The appeal focused on three principal arguments: The findings of contempt at both Canterbury and Leeds did not comply with the Criminal Procedure Rules; Neither the matter at Canterbury nor Leeds should have proceeded summarily; they should have been adjourned and referred to the Attorney General rather than dealt with swiftly by the trial judge; The judge in Leeds punished the appellant for matters falling outside the scope of contempt and failed to properly identify the conduct he was treating as contempt of court. A contemnor (as is the official term) has an automatic right to appeal to the Court of Appeal (unlike ordinary convictions or sentences where the Court of Appeal must give permission to a would-be appellant). However this has to be exercised within 28 days of the finding appealed against. While the appeal against the length of the committal (the “sentence”, if you like) was lodged in time, it was not until some time later that Yaxley-Lennon decided that he wanted to appeal against the findings of contempt. He therefore required the court to grant an extension of time for him to appeal. Given the misinformation that has been spread, it is worth emphasising two things at this stage. Firstly, it was widely reported (including by me) before the appeal hearing that Yaxley-Lennon was not appealing against the findings of contempt. We did so because this is what Yaxley-Lennon’s official spokesperson, and the media organisation supporting him, publicly announced. He deliberately chose not to publicise the fact that he was appealing against the findings of contempt, and the first that this was known was on the day of the appeal. Secondly, the arguments against the findings of contempt was entirely procedural. In other words, his barrister explicitly accepted that what Yaxley-Lennon had done amounted to contempt of court. The argument was simply that the court hadn’t dealt with it as the law requires. 8. Let’s take each part of the appeal in turn. What was that about the Criminal Procedure Rues? The Criminal Procedure Rules were introduced in 2005 to impose some sort of order on the routine chaos of criminal proceedings. They are lengthy and comprehensive, and prescribe the procedures that the criminal courts must follow. Contempt proceedings can be started either by the court (ie the judge), or following a reference to the Attorney General, who, as the “guardian of the integrity of the administration of justice”, often takes charge. When the court is dealing with an alleged contempt of court, the relevant procedure is set out at Criminal Procedure Rule 48. The law permits the court to deal with contempts summarily – ie straight away – or to adjourn to another date, as long as the procedure is fair. What is appropriate will depend on the circumstances. Where someone is interrupting a trial, for instance, it will usually be right for the court to deal with the contempt immediately to avoid further disruption. However the Court of Appeal, referring to case law, emphasised that this procedure should be used sparingly. Where there can safely be an adjournment, there should be. Another important feature is that the court should “particularise” the contempt – spell it out so that the alleged contemnor knows what they are supposed to have done. If, having completed the initial procedure (which includes offering the contemnor a chance to apologise), the judge decides that further action is to be taken, the court must embark upon an “enquiry” (the name for the hearing of a criminal contempt). A court can postpone an enquiry for further investigation. 9. So where did Canterbury Crown Court go wrong? It didn’t. Yaxley-Lennon argued that the judge had failed to provide the written statement of particulars of the contempt required by Rule 48.7. However, the Court of Appeal, following the appeal hearing last month, came into receipt of “late disclosure”, which showed that “a deliberate tactical decision was made by [Robinson’s] legal advisers at Canterbury to be complicit in the court’s failure to comply with Rule 48”. The appellant waived legal privilege (a common request made by the Court of Appeal in appeals where criticism is made of how Crown Court proceedings were conducted) which allowed the Court of Appeal to read the legal advice he received. And it emerged that a conscious decision was taken by his legal team not to invite the judge to follow the correct procedure, as they thought they would secure a tactical advantage by making the judge “uneasy” about the proceedings. The Court of Appeal was not impressed, telling Yaxley-Lennon: “It lies ill in the mouth of an appellant to complain of the failure of the court below to follow the appropriate procedural steps when that failure was fully appreciated at the time and remained deliberately uncorrected for tactical reasons and collateral advantage.” The Court added that the new barristers instructed for the appeal were unaware of this until after the appeal hearing, and disclosed it promptly when it came to their attention. In any case, the Court of Appeal said that nothing procedurally was flawed in Canterbury. The judge had adjourned the contempt hearing for 12 days to allow time for him to take legal advice. Any failure to follow the CrimPR was immaterial.The appeal against the Canterbury contempt was therefore dismissed. 10. What about Leeds Crown Court? This was very different. The time between arrest and imprisonment was five hours. The Court of Appeal was highly critical: “Such haste gave rise to a real risk that procedural safeguards would be overlooked, the nature of the contempt alleged would remain inadequately scrutinised and that points of significant mitigation would be missed. Those risks materialised.” The Court of Appeal said that the judge was right to order that Yaxley-Lennon immediately take down the video, but that he should then have “taken stock”. He should have either adjourned for a later hearing, or referred the matter to the Attorney General to consider. The Court of Appeal displayed some sympathy towards the judge’s position, but made clear it disapproved of his chosen course: “We recognise that the judge was placed in an invidious position because he was concerned about the integrity of the trial which was almost at its end. The three trials, of which this was the second, were exceptionally difficult and sensitive. Having decided to suspend the deliberations of the jury, it is understandable that he may have felt under some pressure to resolve the issue of the appellant’s contempt expeditiously. However, once it had become apparent that the appellant was co-operating in removing the material from the internet, there was no reason why the jury could not have been permitted to resume their deliberations. If there was any doubt about the intentions of the appellant, the judge could have sought an undertaking from or ordered, the appellant not to comment further on the trial or approach the court until the trial (or trials) had concluded.” There was also confusion, due to the lack of particulars of the contempt, as to what conduct the judge was dealing with Yaxley-Lennon for. He was in breach of the reporting restriction, but the judge also appeared to suggest that other comments in the video – relating to the defendants’ ethnicity and religion – would amount to a separate criminal contempt. But it was all rather fuzzy, and deeply unsatisfactory: “In our judgment the failure to follow the requirements of Part 48 of the Rules was much more than a technical failure. In contempt proceedings, touching as they do on the liberty of the subject, there is a need for the contempt in question to be identified with precision and the conduct of the alleged contemnor identified with sufficient particularity to enable him, with the assistance of legal advice, to respond to what is a criminal charge, in all but name. In this case there was no clarity at all about what the appellant was admitting and for what parts of his broadcast he was considered by the judge to be guilty of contempt of court for breach of the section 4(2) order.” As far as the length of sentence was concerned, the Court of Appeal criticised the decision not to adjourn for a Pre-Sentence Report (or “Pre-Commital Report”), and accepted that the speed of the hearing meant that the level of detail of mitigation put before the court was “very limited indeed”. 11. So the Court of Appeal quashed the Leeds contempt? It did, and all consequential orders (i.e. the sentence) fell away. However that is not the end of it. The Court remitted (sent back) the contempt for a fresh hearing at the Crown Court before a different judge. When the contempt is established (as it surely will be given that Yaxley-Lennon has admitted through his barrister at the Court of Appeal that he breached the reporting restrictions), he will be sentenced afresh. 12. What’s the point? As Tommy’s barrister said, he’s served the equivalent of a four-month sentence. If the Court of Appeal accepted that there was important mitigation not heard, surely he’s going to receive a much shorter sentence? Not necessarily. There was a sting in the tail of the judgment. The Court of Appeal observed that “the alleged contempt was serious and the sentence might be longer than that already served”. It also set out, for the benefit of any future sentencing court, the criteria that should be considered when passing sentence: (a) the effect or potential consequences of the breach upon the trial or trials and upon those participating in them; (b) the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made; (c) the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied; (d) the contemnor’s level of culpability and his or her reasons for acting in breach of the reporting restrictions; (e) whether or not the contempt was aggravated by subsequent defiance or lack of remorse; (f) the scale of sentences in similar cases, albeit each case must turn on its own facts; (g) the antecedents, personal circumstances and characteristics of the contemnor; (h) whether or not a special deterrent was needed in the particular circumstances of the case. Additionally, cases involving a breach of a section 4(2) postponement order will often give rise the following potential consequences: (a) Trials may have to be abandoned irretrievably; (b) Juries may have to be discharged and retrials ordered with all the consequent delays and expense; (c) Witnesses, some of them perhaps vulnerable, may have to face the ordeal of giving evidence for a second time; (d) The trial judge’s decision upon how to manage the trial in response to the contempt may form the subject matter of an appeal which, whether or not successful, will generate additional anxiety, delay and expense. 13. So Tommy is free. This is a victory for free speech, right? No. It is a victory for the procedural rules, and a sharp reminder to the courts of the need to follow them. But certain key takeaways remain: Yaxley-Lennon admitted that he was in contempt of court at Canterbury, through racially charged and aggressive hounding of defendants which risked derailing a serious sex trial and denying justice to victims of sexual offending; Yaxley-Lennon admitted through his barrister that he was in breach of the reporting restrictions at Leeds Crown Court. It was never suggested, by his barrister or anyone else, that the reporting restrictions were inappropriate. It was agreed by all that they were necessary to ensure the fairness of serious trials. “Free speech” has nothing to do with this decision. This was not a case of Yaxley-Lennon “exposing” something the state was trying to cover up. At both Canterbury and Leeds, he was interfering in a live criminal trial in defiance of laws designed to ensure the trial was fair. The cases would have been reported in full by journalists once the postponement order was over. The only thing added to the sum of human experience by Yaxley-Lennon’s “citizen journalism” was the very real risk of serious criminal cases collapsing This is an edited version of the blog post originally published on the Secret Barrister's website. › Brexit could still have a happy ending – but first, a Tory no-deal must be stopped Subscribe For more great writing from our award-winning journalists subscribe for just £1 per month!