Edward Ellis v His Majesty’s Solicitor General

Introduction

By an Order dated 8 March 2023, Kerr J (“the judge”) found the appellant to be in contempt of court and sentenced him to a total of 12 months imprisonment. That was made up of 6 months relating to the two contempts which he had found, and 6 months consecutive, by way of a part-activation of a previous suspended sentence for earlier, similar contempts. The appellant appeals to this court as of right pursuant to s.13 of the Administration of Justice Act 1960.

An appeal to the Court of Appeal can never be a full rehearing: it is a review of the findings made by the judge below. However, recognising the seriousness of the alleged contempt in this case, and the significance of the sanction imposed by the judge, I have considered in detail the factual background in this case; the two fresh contempts complained of by the respondent that formed the subject matter of the committal application; the nature of those contempts; and the sanction imposed by the judge. So, although I have had regard and given due weight to the judge’s conclusions I have, for the avoidance of doubt, reached my own conclusions on the important issues.

The Factual Background

The appellant is no stranger to these courts. He is an ex-solicitor. He is apparently convinced that politicians, judges, the Government, and the Ministry of Justice, together with all those who work for them, are corrupt and that their decisions are, without exception, fraudulent. As May J said five years ago in her judgment in Spivac v Ministry of Justice, Ministry of Justice v Ellis [2018] EWHC 798 (QB), “these beliefs would have just been sad had Mr Ellis not acted upon them”.

That was and remains the problem. The appellant has acted and continues to act upon these beliefs, as May J said, “unceasingly and vexatiously over many years”. His modus operandi is to recruit innocent litigants, some with grievances against the justice system, some desperate for any help no matter from what source, and others just bewildered by a process that they do not understand. The appellant, in the guise of helping these recruits, then issues spurious applications and claims in their name. May J correctly described those applications and claims as “prolix, tendentious, mostly incomprehensible screeds making the same assertions of fraud and corruption again and again.” Those applications and claims inevitably fail, which is presumably the appellant’s intention all along, because (despite the fact that they are nonsensical) their failure allegedly shows that the legal system is corrupt. In this way, innocent litigants find themselves in more trouble than they were if they had refused the appellant’s offer of “help” in the first place.

In consequence of this conduct, the appellant has been the subject of a general civil restraint order (“the GCRO”) since 22 February 2018 when it was imposed by May J. That order ran for 2 years until 21 February 2020 but was extended by May J for a further 2 year period until 21 February 2022. Eyre J then extended it again on 16 August 2022 so that it ran until 21 February 2024.

The particular terms of the GCRO were described in detail by Soole J in HM Solicitor General v Ellis [2022] EWHC 3164 KB at [5]–[13]. It is unnecessary to set out again here the detailed terms and their justification. Suffice to say that the GCRO prevented Mr Ellis from issuing any claim or making any application in the High Court or County Court without first obtaining the permission of May J or another nominated judge. Importantly, the reference to issuing any claim or making any application extended to “procuring any other person to issue any claim or make any application”.

The GCRO also went on to say that certain particular features of a claim form or an application notice, (namely those that bear the unmistakeable stamp of the appellant) would be treated as falling within the relevant definition of claim or application. Those features included references to an “Equity Lawyer”; a reference to the claimant/applicant as “Citizen”; the use of the phrases “Corruption Claim”, “Corruption Remedy”, “Notice Fraud”, “Arrest Fraud”, “Prosecution Fraud” or any similar combination of noun and the word “fraud”. The order went so far as to say that, within the definition of prohibited claims and applications, would be “any other feature that provides reasonable grounds for believing that the claim form or application notice had been prepared by or on behalf of Mr Ellis”.

Also on 22 February 2018, May J found Mr Ellis to be in contempt of court in consequence of 7 breaches of an earlier, similar order imposed by Senior Master Fontaine. She imposed a sanction of 3 months imprisonment, suspended for 1 year.

Mr Ellis appealed against the order of May J and the findings of contempt and the sanction. That appeal was rejected by this court, who also refused permission to appeal against the underlying GCRO. This court specifically rejected Mr Ellis’ submissions to the effect that the whole process was a fraud; that May J had no jurisdiction in the matter; and that she should have recused herself.

On 14 and 16 December 2020 there was a hearing of the respondent’s first committal application in respect of alleged breaches of the GCRO imposed by May J on 22 February 2018. At the conclusion of the second day of that hearing, Cutts J found that the appellant had breached the GCRO on each of the 9 occasions alleged. The judge concluded that the appellant had been the driver of 9 meritless claims and applications issued in the names of other persons and that he had procured each of them to do so. She adjourned that hearing so that the appellant could obtain medical evidence. He did not do so. Following a delay for which the appellant was not responsible, there was a sanction hearing before Cutts J on 16 April 2021. She imposed a committal order of 9 months’ imprisonment, suspended for 2 years. It was during the period covered by both the suspended sentence order and the extended GCRO that the fresh contempts were allegedly committed.

The Fresh Contempts Alleged

On 5 November 2021, an appellant’s notice was issued with appeal court reference CH-2021-000238, seeking permission to appeal (against an adjournment order) to the Chancery Division of the High Court. This application was purportedly made on behalf of a defendant in possession proceedings in the Central London County Court. It was considered and rejected by Roth J.

In the application, Mr Haztunc is referred to as “a citizen”. The solicitors on the other side are referred to as “Lawyers Black Graf LLP”. The request for permission was marked “Without Prejudice to Invalidity Arguments”. There was a reference to “Fraud Appeal Grounds” and “Draft Remedy Order of the Citizen Tenant”. That expression was repeated subsequently. There was also a reference to an “Equity Standard Criminal Outline Investigation”.

Attached to the application was a page of typed A4 script including phrases such as “Corruption Remedy”, “Royal Commission”, “Citizen Mr Haztunc”, “Corruption Remedy Process”, “Equity Lawyer Mr Ellis”, “Sale Sabotage Frauds” and “Sabotage Fraud Plan”.

On 7 January 2022, there was another application notice, again arising out of proceedings in Central London County Court. It was in the name of “Citizen Father Mr Sham Powell Sood”. The request for permission to appeal was endorsed with the phrase “Without Prejudice to Invalidity Arguments”, and phrases such as “Royal Commission”, and “Fraud Appeal Grounds” again appear. The application was due to be considered by a judge when the respondent applied for a committal order.

On 29 July 2022, the respondent commenced Part 8 proceedings seeking a committal order. It was the respondent’s case that the Haztunc and Sood applications were the work of the appellant, and were therefore issued in breach of the GCRO. On 28 November 2022, Soole J gave permission to make the application. Although the appellant appealed against that order, on 23 February 2023, Bean LJ refused the application for permission to appeal.

The judge’s judgment dealing with the application for a committal order is at [2023] EWHC 604 (KB). He rejected the appellant’s complaint that the matter was not ready for trial. He rejected the appellant’s submission that he (Kerr J) should recuse himself on the ground of bias. The judge then heard evidence on behalf of the respondent and from the appellant.

The important features of the judge’s judgment for present purposes are these:

The Issues on Appeal

The Appellant’s Notice is, to put it bluntly, incomprehensible. I set out, by way of example only, the passage under the word ‘Representations’:

Yesterday, the appellant provided three separate appeal bundles, comprising hundreds of pages, entitled “Fraud Appeal Enforcement Stay” and “Equity Lawyer v Cabinet”. Amongst other things, they refer to “The People v The Top Judges”, “Royal Commission + Crime Complaint + Protection Fraud Complaint Statement”. And so on. Nowhere in these hundreds of pages does the appellant address the Haztunc or the Sood applications, or the judgment of the judge. Further, an amended Appellant’s Notice is provided which, in manuscript, adds:

The appellant raised a number of overarching objections during the appeal today. His objections were to the whole process. He said that he was protected because of his involvement in the Coronation Oath Enforcement Authority. This is apparently a secret organisation which judges are – in the appellant’s words – “not allowed to know about”. For various reasons, the appellant says that this gave him protection from the alleged contempts. He also claimed authorisation for all that he had done by the Cabinet. He said that the judge, when making the order of 8 March, was guilty of fraud, so that his judgment was vitiated. He said that this fraud was part of a widespread judicial fraud to protect both organised crime and the medical profession, who are also themselves responsible for widespread fraud.

This all explains why the appellant’s documents repeatedly referred to “Systematic Fraud” and “Resource Equality Denial”. I have dealt with the allegations of fraud; they are a key part of the appellant’s crusade against the justice system. The “Resource Equality Denial” may be a complaint about the appellant’s lack of funds and funding. If it is, it is unsustainable. The claim form and the respondent’s original letter of claim both informed him that he could apply for legal aid, but there is no evidence that he has done so.

In addition, there is at least one reference to “Fraudulent Breaches of Natural Justice”. This may refer to the judge’s decision to pay no attention to the reams of irrelevant material that the appellant produced for the first hearing

The appellant did not expressly challenge either the judge’s findings of fact or the sanction imposed. He was asked repeatedly to explain why the judge had been wrong to make the order that he did: beyond the overarching objections to which I have already referred, the appellant repeatedly refused to answer the question. When it was pointed out that what this court was concerned with was the validity or otherwise of the judge’s order, the appellant suggested that this court was engaged in ‘Presumption Validity Fraud’ and ‘Relevance Validity Fraud’. The only point that he made about the order, and then belatedly, concerned his medical condition.

The Preliminary Objections

The appellant’s overarching objections are precisely the same objections, as to jurisdiction and the like, which the appellant has unsuccessfully raised in front of numerous other judges on numerous other occasions. The judge had the necessary jurisdiction to deal with the contempt application, and was entitled by statute to impose an immediate term of imprisonment up to a maximum of two years. This court also has the necessary jurisdiction: indeed, it is a jurisdiction invoked by the appellant himself by his Appellant’s Notice.

The authority that the appellant claims from the Cabinet was not shown to us. The appellant said that this was a matter of “fundamental law” and we were not entitled to see it. The same was true of all the other authorities and instructions to which the appellant laid claim, which included instructions from the Lord Bishops to investigate a Medical Fraud.

As to the judge, the essence of the appellant’s overarching argument is that the judge was disqualified from making any orders because he had a conflict of interest. That conflict of interest was said to arise from the judge’s use of court proceedings to provide Protection Fraud to Organised Crime. Other alleged frauds by other judges in other cases were also referred to at length. It was suggested that Soole J’s fraud was also being protected by the judge. Numerous references were also made to corruption by Police Officers, politicians and others.

All this was apparently linked to what was called Cabinet Corruption Exposure Plan against the judiciary, which had its roots in a Royal Commission into Judicial Corruption. No documents, let alone the report of such a Commission, was produced. For completeness, the argument ranged widely from the Glorious Revolution of 1688, the Northern Ireland peace process, and Brexit. I should add that my Lord and I were included in the allegations of judicial fraud and stupidity. The appellant said that we were in the process of failing Integrity Tests that would see us removed from our positions by the end of the Summer Term, unless we stayed the judge’s order. It was difficult not to see that as anything other than a direct threat.

All of this history is relevant in one way, however: it explains what the appellant is actually doing when he takes on hopeless applications and claims: what the appellant revealingly called his “Citizens Claims”. When they are refused he can say that it shows judicial corruption. Furthermore, it entitles him to say that each claim was actually a secret test of the integrity of the judge concerned which, because the claim or application has failed, means that the judge in question has failed the test. He said that he had the authority to carry out these integrity tests, but that that authority was, again, secret. In this way, the appellant claims that he can act with impunity. As he put it “they need me to run the cases”. The appellant’s authority was apparently limitless: he suggested that he was not only authorised to carry out integrity tests on all judges, but he had carried out an integrity test on Theresa May when she was Prime Minister, and similar tests on all the major politicians in the 2019 General Election. That did not apparently stop what the appellant said was widespread election fraud.

It hardly needs to be said that this was all undocumented and dangerous fantasy. There was no evidence that supported any part of it. There was no evidence of the various Authorities or Investigations to which we were referred; no evidence of the Royal Commission; no evidence of any element of the secret role that the appellant was fulfilling. It was, in my view, abject nonsense from start to finish.

The Appeal Against The Judge’s Findings

The first point to note is the nature of the contempt alleged in this case. I consider that the judge was right to say that, to succeed, the respondent needed to show that this was a criminal contempt. That is because, although the order allegedly breached (the GCRO) was a civil order, the respondent’s case is that the breach was designed to affect adversely the administration of civil justice generally. It was not limited to a particular action or claim. The principal consequence of this is that a criminal contempt imposes a threshold of seriousness that is not a feature of civil contempt: see Director of Serious Fraud Office v O’Brien [2014] AC 1246.

I go on to consider the relevant actus reus and the mens rea in this case, in order to establish whether a criminal contempt has been committed and whether the necessary threshold of seriousness has been passed.

The judge concluded that the appellant had committed the actions that amounted to a contempt. That finding was based on the language used in the Haztunc and Sood applications and the fact that, when asked, the appellant had been unwilling to answer the question directly but had not denied that he was the author of both applications.

In my view, it is clear beyond reasonable doubt that the appellant made or procured the two applications described above, and was therefore in breach of the GCRO. I consider the fact that he did not deny authorship is highly significant. Moreover, the fact that the laboriously incomprehensible drafting style used in these two applications is precisely that which was envisaged in the terms of the original GCRO, and which can be found in the appellant’s documents for the purposes of this appeal, provides incontrovertible evidence that they were made or procured by the appellant.

There is a third, conclusive point about the making or procuring of the applications. If Mr Haztunc and/or Mr Sood were in fact the authors of their own applications, and it was simply an unhappy coincidence that they happened to use the same curious nomenclature as the appellant (“Citizen”, “Corruption Remedy”, “Fraud Appeal” etc), then it would have been very easy, in the 5 months since the committal application was made, for statements to be produced by Mr Haztunc and/or Mr Sood saying just that. The absence of any such statements is, in my judgment, conclusive.

There is some debate as to the appropriate test for mens rea in a case of criminal contempt. I consider that the better view is that the necessary mens rea is made out if it can be shown that the contemnor was aware of the terms of the order (here the GCRO) and acted intentionally in a way which breached that order: see Solicitor General v Cox [2016] 2 Cr.App.R 15; Attorney General v Crosland [2021] 4 WLR 103 and, in particular, Attorney General v Yaxley-Lennon [2019] EWHC 1791 at [88]. In other words, in a case like this, it is not necessary to demonstrate a specific intention to interfere with the administration of justice. Moreover, even if it was, such an intent does not need to be expressly stated or admitted. It can be inferred from all the circumstances: see Attorney General v Newspaper Publishing Plc [1988] Ch 333, at 374.

I am satisfied so that I am sure that:

If, contrary to my primary view, it is the higher test for mens rea (referred to in paragraph 32 above) that must be met, I am also satisfied so that I am sure that these applications were made pursuant to a specific intent on the part of the appellant to interfere with the administration of justice. He is on a crusade, and is determined to waste the time and efforts of the justice system to achieve his obscure ends. Interference with the administration of justice is what the appellant is all about. A specific intent to do just that can readily be inferred from the appellant’s conduct over the last 5 years and, in particular, from the filing of these two applications.

That brings me back to the question of whether these contempts were sufficiently serious for a criminal contempt to be made out. In my judgment, that test has plainly been met. There are two particular reasons for that. First, there is the effect on the administration of justice and the waste of time and effort required to deal with the appellant’s crusade against everyone involved in the justice system. The Haztunc application had to be considered by a High Court Judge; the Sood application was due to be placed before a judge when the contempt application was made.

But secondly, there is the deleterious effect on other litigants: not only the litigants whom the appellant has recruited, doubtless unwittingly, to his crusade, but those other litigants who have never heard of the appellant, but whose own cases have been delayed and otherwise adversely affected because of the time and resources taken up by the appellant’s hopeless applications.

Sanction

I have summarised the sanction imposed by the judge and referred to his careful and detailed consideration of the relevant factors. Imposing a penalty in a contempt case like this is an exercise of judgment best made by the judge at first instance: see Breen v Esso Petroleum Co Ltd [2011] EWCA Civ 1405. However, in the circumstances described in the opening paragraphs of this judgment, I consider that it is appropriate to reconsider that exercise in some detail. None of that is to suggest any criticism of the judge; it is simply to reflect the seriousness of the situation in which the appellant now finds himself and to ensure that – as he faces the very real risk of imprisonment today - any point that may be available to him is properly considered.

The relevant principles are set out in Liverpool Victoria Insurance Company Co. Ltd v Khan [2019] EWCA Civ 392, [2019] 1WLR 3833, reiterated by the Supreme Court in Attorney-General v Crosland [2021] 4 WLR 103. The general approach is to follow the approach of the Sentencing Guidelines and, in particular, to consider the same factors that they do, namely culpability, harm, aggravating factors, mitigating factors, whether a fine is appropriate or whether the custody threshold has been passed, and, if custody is appropriate, whether the sentence could be suspended. I consider those matters in that order.

In my judgment, the appellant’s culpability is high. He knows what he is doing. He is persistent. His determination to disrupt the justice system, and to interfere in cases in which he has no personal involvement whatsoever, appears limitless. I find myself wondering what such persistence and determination might have achieved had they been directed towards a sensible or cogent end.

The harm caused is high. A very large amount of judicial time and effort has had to be wasted on the appellant and his various applications. That is detrimental to the needs of genuine litigants. At a time when the resources of the Court Service are so stretched, the scale of the harm done cannot be underestimated.

There are in my view, a number of aggravating factors. The most significant are the appellant’s past conduct and his repeated use of actual litigants to pursue his campaign. As the judge noted, that would probably have given them false hopes and expectations. The reality is that he was not entitled to represent anyone, and he was instead using innocent third parties for his own ends.

The only mitigation available to the appellant is his assertion that he has a medical condition that requires dialysis treatment three times a week. There is no independent evidence of that. The appellant said that all his medical records are kept secret (even from him) because they show a conspiracy to murder him, apparently involving Boris Johnson. He said that the judge knew about this and should have made an order requiring the Cabinet to provide the medical records. He claimed that the judge had also refused a specific application for his medical records but there was no evidence of that application and Mr Eardley confirmed that he had seen no such application.

I cannot accept any of these inherently improbable reasons why a person with an alleged medical condition, which he wishes to rely on for the purposes of mitigation, is unable even to show the court a letter from his GP or a record of his appointments for the treatment he is said to be receiving.

Moreover, if it were true, this was something which, on his own evidence, the appellant has been living with since 2020. Yet it has not prevented his repeated contempts of court, and it has not led him to reassess his conduct following the imposition by Cutts J of a 9 month suspended sentence in 2021. In any event, the judge properly took it into account, to the extent that he could, when setting out the sanction. It cannot, therefore, be relied on again now.

There is no evidence of remorse or regret. As the judge noted, the appellant has had plenty of opportunities to cease his activities and has deliberately chosen not to take them. His conduct of today’s hearing has made that all too clear.

It is necessary to consider first whether a fine is a sufficient punishment. That requirement comes from Liverpool Victoria Insurance. The reason that it is the first question in a case like this is that, if a fine is not appropriate, then the judge has to move on to consider a custodial sentence and whether or not it should be suspended. Community sentences are not an option for a judge imposing a sanction for contempt.

It is clear that a fine would be a wholly inappropriate sanction in the present case. I repeat what I have said about culpability and harm. At one point the judge suggested that a fine might not be appropriate simply because the appellant could not pay it. I am not sure that that was right. In rare cases, the means of a contemnor can be a relevant factor in considering the appropriate sanction (Cuciurean v SoS for Transport [2022] EWCA Civ 1519), in part because of the difficulties of enforcement and the like, but it is wrong in principle to rely on the contemnor’s inability to pay a large fine to justify a custodial sentence instead. However, as the judge correctly emphasised, that issue simply did not arise here. In all the circumstances of this case, a fine was a wholly inadequate sanction, so questions of means were irrelevant.

Is the custody threshold passed? The answer to that must plainly be Yes. Indeed, May J considered that the custody threshold had been passed as long ago as 2018 when she made the first suspended sentence order. Cutts J was of a similar view in 2021. Kerr J is the third High Court judge to reach the same conclusion. All of the matters already set out make plain that the custody threshold has well and truly been passed.

The last question is whether any sentence could be suspended. The sentencing guidelines dealing with the Imposition of Community and Custodial Sentences has a useful table which identifies the six factors to be considered when considering suspension. Factors indicating that it may be appropriate to suspend a custodial sentence include a realistic prospect of rehabilitation; strong personal mitigation; and immediate custody having a significant harmful impact upon others. Factors indicating that it would not be appropriate to suspend a custodial sentence include whether the offender presents a risk or danger to the public; whether the appropriate punishment can only be achieved by immediate custody; and whether there is a history of poor compliance with court orders.

A consideration of those factors in this case points overwhelmingly to the conclusion that the sentence should not be suspended. As to the factors that indicate the possibility of suspension, in this case there is no realistic prospect of rehabilitation, as the appellant’s persistence demonstrates; there is no strong personal mitigation, for the reasons I have given; and there is no evidence that the appellant’s immediate custody will result in significant harmful impact on others.

As to the factors that suggest that suspension will not be appropriate, I consider that the appellant does present a risk to the public for the reasons I have explained. Taking over the conduct of otherwise unrepresented litigants simply to pursue the applicant’s campaign against the Ministry of Justice is a clear risk or danger to the public. The history of poor compliance with previous orders has been set out in some detail already.

The final factor that indicates that it would not be appropriate to suspend a custodial sentence is if the court concludes that appropriate punishment can only be achieved by immediate custody. I am in no doubt that that is the case here. The appellant has already been the subject of two previous suspended sentence orders. One was current at the time of these offences. He ignored them. Regrettably, the appellant has now run out of chances. Applying the relevant factors, there was no justification for a suspended sentence.

The judge identified a term of 6 months in respect of the contempts in respect of the Haztunc and Sood applications. We have heard no submissions to the effect that that was excessive. In my view, it was not.

The overall term of 12 months imposed by the judge was completed by the 6 months that he activated from the earlier suspended sentence of 9 months imposed by Cutts J. The statutory presumption in favour of activation of a suspended sentence, provided by paragraphs 13 and 14 of Schedule 16 of the Sentencing Act 2020, does not apply here. However, having considered the Sentencing Council’s Guidelines in respect of breaches of suspended sentence orders, I was puzzled as to why only 6 of the 9 months was activated. After all, this was not a sentence imposed for a criminal offence, where a suspended sentence order went hand in hand with some form of unpaid work or other community requirement in respect of which there had been some compliance, which might then justify a reduction in the period originally identified. As I have explained, such orders are not available for contempt of court.

Instead, the appellant was told that, if he did it again, he would serve a 9 month prison sentence. He did it again, relatively early on in the life of the extended GCRO, not once but twice. In those circumstances, had I been the judge at first instance, I would have activated the entirety of the 9 months suspended sentence.

Accordingly, I have given active consideration to whether or not to increase the sentence in this case to one of 15 months (namely 6 months for the two contempts in respect of Haztunc and Sood, and the activation of the whole of the suspended sentence order). However, in all the circumstances of this case, including his assertion of a medical condition, I have concluded that I should give the appellant the benefit of the doubt and retain the period of custody imposed by the judge.

Finally on the issue of the suspended sentence, I note that the judge did not categorise as an aggravating factor the fact that these breaches of the GCRO occurred during the period of suspension; instead he activated part of the suspended term imposed. There was therefore no double counting. I have adopted the same course.

The judge’s order of imprisonment was the subject of a stay to allow the appellant time to appeal. He has availed himself of that opportunity. Although the stay was to last until Tuesday 9 May 2023, the appeal has been heard and refused today (3 May 2023). In those circumstances, I would revoke paragraph 3 of the Order of Kerr J of 8 March 2023. I would dismiss this appeal which means that the appellant must commence his term of imprisonment immediately.

I agree.