Santiago v R

Having announced during the hearing of this case on 18 January 2005 that we were dismissing the appellant’s appeals against two findings of contempt of court made by His Honour Judge Findlay Baker QC on 16 May 2003, we now give our reasons. On 19 January we gave our reasons for dismissing an application for leave to appeal his conviction for conspiracy and allowing, in part, his appeal against sentence (see [2005] EWCA Crim 91).

The first contempt occurred in court during the morning of 8 May, 2003 when the appellant physically pushed the dock officer, engaged in a tussle with him and swore at him. At the time the jury, who had already been sent out to deliberate on their verdicts, was not in court. The jury returned the following day with their verdicts. This incident took place, therefore, at the end of a trial. However, the judge made it clear there and then (although we do not have his exact words) that he proposed to deal with the matter as a possible contempt later.

The second contempt found by the judge occurred on 9 May, 2003 and involved the appellant refusing, in breach of order made by the judge, to leave his cell and come into court whilst he was being sentenced. The appellant had previously, through his counsel, indicated that he refused to attend, notwithstanding the judge’s order that he and the co-accused, Cambridge, should come into court to be sentenced. When this refusal was communicated to the judge, he directed that after the appellant had been given an opportunity to reflect on his refusal, the order to attend should be further communicated to him. Accordingly, Mr Graham Knight, the Court Clerk, went to the cell area and told the appellant of the judge’s order. The appellant’s response in a loud voice to Mr Knight was, “I can’t hear you. I want nothing to do with you and your kangaroo court. Now fuck off!”.

We start with the first contempt finding. Statements were obtained from two witnesses to the dock incident, the prison officer concerned and a police officer who was in court. The judge said that, as there was a conflict between those statements and his recollection of the incident, he would not rely upon his own observations. Neither witness was required by the appellant to give oral evidence and during the course of submissions counsel for the appellant expressly confirmed that she did not dispute the contents of the statements of the witnesses. The appellant did not give evidence although he provided a letter to the court.

In his reasons for finding the appellant guilty of contempt the judge made the following findings of fact:

The judge considered whether the dock officer was entitled to restrain the appellant and whether the appellant was entitled to make his way over to kiss Miss Elphick. The learned Judge concluded that the officer was entitled to restrain the appellant and that, in the light of an earlier order, the appellant was not entitled to make his way over to kiss Miss Elphick. Nevertheless, he could not be wholly certain that the appellant’s action in attempting to reach Miss Elphick was a deliberate flouting of a previous order forbidding contact between the defendants, given that the order had not for some time previously been enforced. The appellant was not, therefore, in contempt for trying to reach the girl. However, the submission by Counsel that the appellant’s conduct thereafter was not a contempt was rejected. The proper running of the courts required that defendants, when properly required to take their places in the dock, should do so. The courts could not be run in an orderly fashion if they did not comply. Equally, swearing at, or abusing, and using force on dock staff was a direct interference with the course of justice, and the learned Judge had no doubt that those actions were deliberate. The initial motivation of a desire to kiss Miss Elphick was not to be confused with the intention on the part of the appellant, which the judge readily inferred, to disrupt the proceedings. That intention was successful, albeit only in a limited way.

It is now submitted that the judge was wrong to have held the May 16 hearing, the alleged contempt having occurred on May 8, the trial having come to an end and the appellant having been sentenced (albeit in his absence) for conspiracy on May 9. The judge should, so it is submitted, have left it to the CPS to bring proceedings in the Magistrates’ Court for assault (it was not suggested that proceedings in the Divisional Court were appropriate). In the event of a conviction, so it is said, the Magistrates’ Court could and would properly reflect in the sentence the particular circumstances of the assault.

Reliance is placed upon cases in which it is said that the power to punish contempt should be used sparingly and only when it is imperative for the court to act immediately. Eight days had elapsed since the alleged contempt and, the trial being over, there was no need to take any steps to ensure that it continued without further incident. The situation was clearly not urgent, so it is said.

The headnote in Balogh v St Albans Crown Court as reported in [1975] 1 QB 73 reads:

“Per curiam The ancient power of the superior courts of record, now including the Crown Courts, to commit a contemnor to prison of their own motion without charge or trial is necessary to protect the due administration of justice. It is preserved in the R.S.C. Ord 52, r 5. The power is not limited to punishing for contempt ‘in the face of the court’ or what the judge himself sees and knows, but extends to punishing for any interference with the administration of justice in public which is proved beyond reasonable doubt to be a contempt and which affects or is calculated to affect the course or outcome of the trial in progress or about to start. But because it is arbitrary, contrary to natural justice, and far removed from the ordinary processes of the law, it is to be exercised with scrupulous care and only when it is imperative for the court to act immediately; and it must never been invoked unless nothing else will do to protect the ends of justice and to ensure that a trial in progress or about to start can be brought to a proper and dignified end.”

However the headnote should be treated with care as can be seen by an analysis of the judgments. The headnote can be read as suggesting that the judge had no jurisdiction to deal with the contempt (if contempt it was) because it was not “imperative for the court to act immediately” to “ensure that a trial in progress or about to start can be brought to a proper and dignified end”.

Lord Denning MR set out the facts (pages 81-82) which had led to Melford Stephenson J passing a sentence of six months’ imprisonment the day following the contempt:

“There is a new Court House at St. Albans. It is air-conditioned. In May of this year the Crown Court was sitting there. A case was being tried about pornographic films and books. Stephen Balogh was there each day. He was a casual hand employed by solicitors for the defence, just as a clerk at £5 a day, knowing no law. The case dragged on and on. He got exceedingly bored. He made a plan to liven it up. He knew something about a gas called nitrous oxide (N₂O). It gives an exhilarating effect when inhaled. It is called "laughing gas." He had learned all about it at Oxford. During the trial he took a half cylinder of it from the hospital car park. He carried it about with him in his brief case. His plan was to put the cylinder at the inlet to the ventilating system and to release the gas into the court. It would emerge from the outlets which were just in front of counsel's row. So the gas, he thought, would enliven their speeches. It would be diverting for the others. A relief from the tedium of pornography. So one night when it was dark he got on to the roof of the court house. He did it by going up from the public gallery. He found the ventilating ducts and decided where to put the cylinder. Next morning, soon after the court sat, at 11.15, he took his brief case, with the cylinder in it, into court no. 1. That was not the pornography court. It was the next door court. It was the only court which had a door leading up to the roof. He put the brief case on a seat at the back of the public gallery. Then he left for a little while. He was waiting for a moment when he could slip up to the roof without anyone seeing him. But the moment never came. He had been seen on the night before. The officers of the court had watched him go up to the roof. So in the morning they kept an eye on him. They saw him put down his brief case. When he left for a moment, they took it up. They were careful. There might be a bomb in it. They opened it. They took out the cylinder. They examined it and found out what it was. They got hold of Balogh. They cautioned him. He told them frankly just what he had done. They charged him with stealing a bottle of nitrous oxide. He admitted it. They kept him in custody and reported the matter to Melford Stevenson J. who was presiding in court no. 1 (not the pornography court). At the end of the day's hearing, at 4.15 p.m., the judge had Balogh brought before him. The police inspector gave evidence. Balogh admitted it was all true. He meant it as a joke. A practical joke. But the judge thought differently. He was not amused. To him it was no laughing matter. It was a very serious contempt of court.”

All three members of the Court were in agreement that if what Balogh had done was a contempt of court then the judge had the jurisdiction to deal with it summarily.

The conclusion that the judge had jurisdiction is supported by a passage in Griffin (1989) 88 Cr App R 63, at 69 per Mustill LJ :

“We should add that certain dicta (for example, in Balogh) may be read as suggesting that the court has no jurisdiction to adopt the summary process unless the matter is urgent. We doubt whether this is strictly accurate. In our view the question of urgency or no is material, not to the existence of the jurisdiction but as to whether the jurisdiction should be exercised in preference to some more measured form of process.”

Although Lord Denning did say in Balogh (page 85):

“a judge should act of his own motion only when it is urgent and imperative to act immediately.”

He went on to say: (page 85)

“Returning to the present case, it seems to me that up to a point the judge was absolutely right to act of his own motion. The intention of Mr. Balogh was to disrupt the proceedings in a trial then taking place. His conduct was reported to the senior judge then in the court building. It was very proper for him to take immediate action, and to have Mr. Balogh brought before him. But once he was there, it was not a case for summary punishment. There was not sufficient urgency to warrant it. Nor was it imperative. He was already in custody on a charge of stealing. The judge would have done well to have remanded him in custody and invited counsel to represent him.”

Stephenson LJ said: (page 87)

“... if the appellant was in contempt, could or should his contempt have been immediately punished by Melford Stevenson J. as a judge of the Crown Court in the way in which it was punished, namely, by committal to prison for six months? Again my answer is "No," and my reasons can be even more shortly stated - in two sentences. This procedure is one to which judges should resort in exceptional cases where a contempt is clearly proved and cannot wait to be punished. Here the facts alleged to constitute the contempt were admitted, but there was no need for immediate punishment.”

A little later he said: (page 90)

“[The summary procedure] must never be invoked unless the ends of justice really require such drastic means; it appears to be rough justice; it is contrary to natural justice; and it can only be justified if nothing else will do ... .”

Stephenson LJ concluded by saying that the judge should not have sentenced Balogh to imprisonment but left him “to be prosecuted for a contemptible theft” (page 91).

Lawton LJ said: (pages92-93):

“In my judgment this summary and draconian jurisdiction should only be used for the purpose of ensuring that a trial in progress or about to start can be brought to a proper and dignified end without disturbance and with a fair chance of a just verdict or judgment.”

The effect of Balogh is that a judge should not punish summarily unless it is “imperative for the court to act immediately”, unless “nothing else [would] do to protect the ends of justice” and unless the defendant was being punished to “ensure that a trial in progress or about to start can be brought to a proper and dignified end”. Given that the judge in the instant case both found the contempt proved and punished the contempt eight days after the incident and after the conclusion of the trial, the test in Balogh was not met, so Mr Lyons submits.

However is the test now as strict as that? The respondent says it is not that strict and relies on Wilkinson v S and another [2003] EWCA Civ 95; [2003] 1 WLR 1254. In that case the Court of Appeal (Lord Woolf CJ, Hale and Latham LJJ) said:

“Although the summary procedure is a draconian step which should never be embarked upon lightly, it is not limited to cases where it is necessary to preserve the integrity of a trial which is in progress or about to begin. ... In a serious case such as this, particularly where there are ongoing proceedings between the same parties, it may be entirely proper to invoke the summary procedure even though the immediate hearing is over. No one has suggested otherwise.” (Paragraph 19)

The Court in Wilkinson referred to Balogh and cited the passage from the judgment of Stephenson LJ which we have set out in paragraph 16 above and went on to say:

“16.

... However, the appearance of rough justice has been mitigated by the guidance given in later cases. In R v Moran (1985) 81 Cr App R 51, a prisoner serving a sentence for burglary was sentenced to a further six months for refusing to give evidence against a person implicated in the same offence. The Court of Appeal stated (at 53):

‘These situations are always difficult for judges to deal with. The trial judge is in a much better situation to assess what is required to be done than this court some months afterwards. The following principles should be borne in mind. First, a decision to imprison the man for contempt of court should never be taken too quickly. The judge should give himself time for reflection as to what is the best course to take. Secondly, he should consider whether that time for reflection should not extend to a different day because overnight thoughts are sometimes better than thoughts on the spur of the moment. Thirdly, the judge should consider whether the seeming contemnor should have some advice … Giving a contemnor an opportunity to apologise is one of the most important aspects of this summary procedure, which in many ways is Draconian.’”

The Court went on to say:

“19.

In our judgment, it is necessary to distinguish between jurisdiction and good practice. A judge faced with the sort of serious disturbance which took place here is placed in a very difficult position. After the immediate disorder has been quelled, the first decision to be made is whether to invoke the summary procedure or whether to refer the matter to the Attorney General for him to decide what action to take. It cannot be left to the other party to the case, here the mother, to take action. Although she was the immediate victim of the appellant’s aggression, the offence lay in the contempt thereby shown to the court and to the proper administration of justice. This was not something that the court could overlook. Although the summary procedure is a draconian step which should never be embarked upon lightly, it is not limited to cases where it is necessary to preserve the integrity of a trial which is in progress or about to begin (the observations in DPP v Channel Four Television Co Ltd [1993] 2 All ER 517 at 521, were not intended to cover all eventualities). In a serious case such as this, particularly where there are ongoing proceedings between the same parties, it may be entirely proper to invoke the summary procedure even though the immediate hearing is over. No one has suggested otherwise.

20.

Once a judge has decided that it is proper to invoke the summary procedure, she has to secure that the process is as fair as possible for the alleged contemnor, consistent with its being a summary procedure. Arrangements must be made for him to be legally represented. A short period of reflection is valuable. The contemnor is given the opportunity to contain his anger, consider the situation, apologise to the court and assure it of his good behaviour in future. The judge is also given the opportunity to recover from a disruptive or even, as in this case, frightening experience and consider what, if anything, needs to be done about it. The question is how long she can or should wait before bringing the case back.

21.

In many cases, it need take no longer than the remainder of the court day (as it appears was originally envisaged in this case) or overnight. But where the delay is no longer than necessary in order to make arrangements for a summary trial in which the rights of the alleged contemnor can be properly protected, it cannot be unlawful. It would be illogical to hold that a judge can impose up to two years’ imprisonment virtually on the spot but not wait a short time in order to achieve a fairer procedure. As a matter of good practice, however, if the case cannot be heard the next day, the judge should ensure that the alleged contemnor is brought back to court in any event, or if this is not possible, that inquiries are made and the case is mentioned in open court, so that the reasons for any further delay are both known and recorded and the question of bail can be considered.”

In our view the Court of Appeal in Wilkinson has tempered what was said in Balogh (particularly by Stephenson LJ) and rightly so. As Mustill LJ said in Griffin in the passage we have already quoted (paragraph 13):

“In our view the question of urgency or no is material ... as to whether the jurisdiction should be exercised in preference to some more measured form of process”

However, the Court also accepted that a judge should only resort to summary proceedings for contempt in cases of “real need” (page 67).

In Macleod, unreported, CACD, 29 November 2000 the appellant was found guilty of contempt by the trial judge for having intimidated a prosecution witness. The facts, as taken from the judgment of Kennedy LJ, were:

“During the trial, on 22nd June 1999, an incident occurred when, just outside the court room, the appellant, who was then on bail, spoke to a prosecution witness Mrs Harvey. She was giving evidence, and had left the court room because the court had risen for the day. On the following day the judge, in the absence of the jury, conducted a hearing to ascertain whether or not what had occurred amounted to a contempt of court. He found the contempt to be proved, and imposed a sentence of two months imprisonment.”

Relying on Balogh it was submitted that the judge was wrong to deal with the question of contempt in the manner which he had. Kennedy LJ cited the passages in Griffin which we have already set out, rejected the submission and dismissed the appeal. The judge was right to conduct the hearing the next day. Kennedy LJ did however say:

“Having found the contempt proved the judge might have been wise to reserve his reasons until the end of the case, so as to avoid expressing any view about a witness who was still giving her evidence in the main trial. He might have also have been wise to defer consideration of any penalty until the conclusion of the trial.”

If it would be appropriate to adjourn the giving of reasons and consideration of the penalty until the end of the trial, then, so it seems to us, it may well also be appropriate to defer the issue of whether a contempt was committed to the same time.

We conclude that a judge is entitled to defer taking action on a prima facie contempt. He may adjourn the issue of whether a contempt was committed and any issue of punishment until later. The fact that the trial is over or the fact that there is no immediate need to take action does not prevent the judge from later taking action. Indeed he should not take action immediately if to do so would be unfair to the defendant. On the facts of this case it would have been quite disproportionate to have left the matter to the CPS to bring a (possible) prosecution in the Magistrates’ Court. That is certainly true when, as here, there was no dispute about the facts. It seems to us that the threat of summary contempt proceedings made at the time of the incident may well be effective in restoring or maintaining order whereas the risk of prosecution in the Magistrates’ Court would not be so effective (if effective at all). It would be strange if having properly made the threat, the judge was precluded in a case like this from holding the proceedings.

We reject this ground of appeal.

It is also submitted that the procedures adopted by the judge were in breach of the requirements in Article 6 of the ECHR that proceedings be conducted before an independent and impartial tribunal.

In Macleod Kennedy LJ said:

“Mr Burton also drew our attention to section 6 and to section 22(4) of the Human Rights Act 1998, to Article 6 of the European Convention on Human Rights ... . [I]n this field we consider that Article 6 does not add to or alter the normal requirement of English law that proceedings should be conducted fairly before an independent and impartial tribunal.”

Dodds [2002] EWCA Crim 1328; [2003] 1Cr App R 60 concerned a reluctant and recalcitrant juror summarily fined by the Honorary Recorder of Newcastle-upon-Tyne, HHJ Hodson. On appeal it was submitted that the procedure adopted by the Recorder was in breach of the Convention. The Court said:

“13.

There was a strand of argument in this case based on the Human Rights Act. In our judgment it adds nothing to domestic law in the context of this case. There are three reasons for that. First, the Common Law requirements of natural justice in dealing with a criminal contempt case (and this is to be treated as such) do not fall short of ECHR jurisprudence. Secondly, there is a recognition of the need under the ECHR for summary procedures – see e.g. Ravinsborg-v-Sweden [1994] 18 EHRR 38. Thirdly, there will be no breach of the Convention if matters can be rectified on appeal – Edwards-v-UK [1993] 15 EHRR 417. The wide terms of Section 13(3) of the 1960 Act give this court ample powers to do that in this case. We do not question the applicability of Article 6 ECHR, but we hold that it adds nothing in this context to English domestic law.”

In passing we note that in Balogh, Stephenson LJ said (page 90) that he saw “no reason why one judge of the Crown Court or the High Court should not commit for contempt of another”. He continued:

“It is done in the Family Division when one judge commits a husband for breach of another's order. It depends on all the circumstances whether more than one judge should come into these summary proceedings. It may be better for a presiding judge available in the same building to commit for a contempt of a circuit judge's court. I do not accept the appellant's uninstructed opinion, which I understand Mr. Vinelott to have abandoned, that Melford Stevenson J. could not commit him for a contempt of court next door where he ‘intended to subvert the proceedings’ (his own words) by discharging nitrous oxide.”

The Article 6 issue was also considered in Wilkinson. It was submitted to the Court of Appeal that the judge should have remitted the alleged contempt to another judge. The Court said:

“23.

... The Phillimore Committee (1974, Cmnd 5794, para 30) saw three advantages in the matter being dealt by the same judge: she would be in the best position to deal with it, because she had witnessed what had taken place; she might well be more inclined to take a lenient view after a period of reflection than another judge who simply read the transcript and would be naturally anxious to protect a sister judge; and the threat of immediate punishment is an effective deterrent. To these may be added the necessity for prompt action in cases where the trial is still going on and the impracticability of arranging for another judge to deal with it if there is still a risk that the contempt hearing will itself be disrupted.

24.

On the other hand, the power to impose summary punishment for actions which one has oneself witnessed and is oneself the victim does appear to place the judge in the position of being witness, prosecutor and judge. As was said in the Channel Four case, the judge should not appear to be a prosecutor acting in his own cause (see also Schot and Barclay [1997] 2 Cr App R 383.) The appellant therefore argues that she could not be an impartial tribunal for the purpose of article 6(1).

25.

In many cases where there has perforce to be a delay between the alleged contempt and the summary trial, it will be wise for the judge to refer the matter to one of her colleagues if for no other reason than to avoid the risk that this argument will be run. However, as Borrie and Lowe point out (The Law of Contempt, 3^rd edition 1996 at p 522), strictly speaking the procedure does not offend against the rule of natural justice, nemo iudex in sua causa (no-one shall be judge in his own case), since the prosecution is not aimed at protecting the judge personally but protecting the administration of justice. The issue is one of the appearance of bias. The test which must now be applied in deciding whether a tribunal is impartial for the purpose of article 6 is that set out by this Court in Re Medicaments and Related Classes of Goods [2001] 1 WLR 700 at paras 85 and 86:

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility… that the tribunal was biased. The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances.”

This test was approved by the House of Lords in Porter v Magill [2001] UKHL 67; [2002] 1 All ER 464, paras 102, 103.

In this case, the evidence from Mr Solly's conversation with the judge is that she did indeed consider whether it was appropriate for her to decide the committal hearing. She did so because it appeared that the appellant's guilt was not in question, so that the only issues would be mitigation and sentence. As we have seen, this was correct. At the time there was no question of contradicting the transcript or the accounts of the witnesses and these corresponded with the recollections of the judge which she recounted in court.

In those circumstances, the Official Solicitor takes the view that, even if it might have been preferable for the judge to ask another judge to hear the case, he cannot contend that her exercise of discretion was clearly wrong. There was no dispute as to the essential facts of what had occurred and it was accordingly open to her to continue to deal with the matter herself. A fair-minded observer would not conclude that there was a real possibility of bias. We agree.”

In the instant case, as in Wilkinson, there was no issue as to the “essential facts” and, as in Wilkinson, “a fair-minded observer would not conclude that there was a real possibility of bias”. Furthermore, as said in Dodds, this Court has ample powers to review the judge’s findings and punishment. We reject this ground.

We turn to the second contempt, refusal to attend for sentencing.

The judge in his ruling said that it was an important part of the trial process that a defendant should be present when sentenced. It might not always be an essential part, but it was desirable and important that he should attend, if available. The appellant was available. He was ordered to attend, and he did not simply have an option to attend or not. A trial was a public process and the imposition of a penalty was an integral part of it. The public had some right to see the defendant receive his punishment. It was important that the words of sentence should be uttered in his presence so that he should hear them spoken, understand why he had been sentenced and learn directly from the judge the effect of the sentence. The learned Judge inferred from the appellant’s refusal to attend an intention to interfere with that part of the process of justice. In each case the defendant was clearly in contempt, and the appellant’s contempt was made considerably worse by his abuse of the Court Clerk.

As in the case of the first contempt, it is submitted, for the same reasons, that the judge should not have dealt with the matter himself, although what course he should have adopted is not clear. No offence was committed. Proceedings in the Divisional Court would not be appropriate. Following what Stephenson LJ said in Balogh, the matter could, we suppose in theory, have been remitted to another judge. For the reasons given in rejecting the grounds of appeal relating to the first contempt, we reject these grounds also.

It is also submitted that disobedience of such an order to attend court is not a contempt- it does not interfere with the due administration of justice. It was pointed out that the judge had not required the appellant’s presence when the jury returned with its verdicts. It was accepted before us, although not before the judge, that he had power to make the order requiring the defendant to attend for sentence. That being so, it seems to us clear that refusal to comply with a lawful order does interfere with the due administration of justice.

For these reasons we uphold the finding of contempt. We add only this- although we have no doubt that the judge had the jurisdiction to find the appellant in contempt for his refusal to attend for sentencing, we have some doubt whether in practice this power should be exercised and, in part, for that reason we allowed the appeal against the sentence on this contempt by making the one month term of imprisonment concurrent rather than consecutive.