On 25 April 2014, in the Crown Court at Durham, following summary contempt proceedings, Ian Stuart West, a barrister, was found by His Honour Judge Kelson Q.C. to be in contempt of court: he was ordered to pay a fine of £500. The alleged contempt arose out of the his conduct whilst instructed to act as defence counsel at a preliminary hearing held in the Crown Court on 14 April 2014 in the case R v Ingham.

Mr West, represented pro bono by Mr Bryan Cox Q.C. (who similarly represented him at the contempt hearing) appeals the finding of contempt pursuant to s. 13 of the Administration of Justice Act 1960. We are grateful for the help that Mr Cox has provided but, given the issues which arise, the court sought the assistance of an amicus curiae and we are also grateful to Mr Oliver Glasgow who was instructed by the Attorney General to act in that capacity: he has dealt with the principles but not made any submissions on the merits. Although, initially, there was a reporting restriction in relation to these proceedings so as not to prejudice the hearing of the criminal case at the centre of this appeal, it no longer bites: we were told that the defendant, Paul Ingham has subsequently pleaded guilty and been sentenced.

On the morning of 14 April 2014, a preliminary hearing took place in the case of Mr Ingham, a postmaster or former postmaster who faced allegations of theft and perverting the course of justice. He was represented by the appellant. No plea was due to be entered that day but a timetable was agreed and a trial date set for 10 September 2014.

The material available at the hearing for the court (and the defence) consisted of a police summary running to 7 pages, 12 witness statements totalling 24 pages and a summary of the police interviews of some 20 pages in length. Having read the summary of the case, the judge noted that in the final interview, the defendant was asked about his failure to refer to his wife’s’ heavy indebtedness, the fact that he had some £2,500 hidden in a laundry basket and his conflicting accounts of how a paper band dated 17 March 2014 around some of the money could come to be present. In the circumstances, Judge Kelson determined to exercise the case management powers available to him pursuant to the Criminal Procedure Rules 2013 (“CPR”).

He invited the appellant to indicate whether any issues were likely to arise, particularly in relation to the admissibility of the interviews. The judge took the view that the state of the evidence in the case made it the type where active case management at a preliminary stage could help to progress the case; he subsequently explained that his practice is often to adjourn preliminary hearings where he feels that further time focusing on the state of the evidence might, in fact, result in an admission. It is to be said that it might also cause there to be some other sensible resolution of the case. It is not suggested that this was not an entirely appropriate exercise of his responsibilities.

There followed a heated exchange between the judge and the appellant as to whether or not a further conference with the defendant in the case would assist in this matter. Judge Kelson recommended the appellant take further instructions. The appellant was of the view that in the circumstances nothing would be gained from a further conference; he had spent time with the defendant that morning and the defendant had made it clear his intention was to plead not guilty. Nevertheless, although the judge had said that he was available “all day”, after further words, he adjourned the case to that afternoon, asking the appellant to return at 2.15pm, but releasing prosecution counsel (to be called if required).

Having regard to the importance of the principles engaged in this case, it is essential to set out part of the exchange which followed the setting of the date fixed for trial within the custody time limit:

Pausing at this point, the judge had proceeded with perfect propriety: if case management is to have any purpose, it is to understand the issues in the case so as the better to identify how much court time will be needed and, in certain circumstances, to make robust orders to ensure that efficient and effective progress is made: it is quite clear that there was a full summary of the interview and absolutely no reason why counsel should not be able to identify whether there was a challenge to admissibility. It is simply not good enough for counsel simply to assert that a defendant is not guilty and that is the end of the matter.

Judge Kelson effectively made that point. The exchange goes on:

It is important to underline that the judge was simply putting the case back so that he could ascertain what the defence approach to the interviews was likely to be. Unfortunately, rather than take up the judge’s invitation and then answer the question about admissibility, Mr West took a different line. The exchange goes on:

In the light of the appellant’s attitude, it is not perhaps surprising that the judge’s approach had then hardened. He was not allowing the case to come back when it was ready: he was now deferring it. The appellant believed that the judge was making a coded assertion as to the merits of the defence. More significantly, the judge then released the prosecution from attendance; Mr Cox submits that this demonstrates that the deferral was a punitive measure only. On the other hand, the judge made it clear to the prosecution and the court:

The exchange then continued:

When the defendant (who was in custody) was called up to court, the judge learned that the appellant had left the building and was believed to have returned to chambers. The defendant confirmed that the appellant had been to visit him after the morning’s hearing for about five minutes. The judge caused a telephone call to go to the appellant’s chambers requiring him to attend the following day at 10.30 am to conclude matters relating to the hearing, including the defendant’s status in relation to bail, and to explain his failure to return after lunch.

On 15 April, the appellant, prosecution counsel and the defendant, Mr Ingham, attended court: the appellant said that he did not make an application for bail because there was no such application to be made. With regard to the appellant’s non-attendance, an exchange between Judge Kelson and the appellant proceeded as follows:

The judge referred to the interviews and, in particular, the £1,000 found in a wrapper: he said that it was this which led to the enquiry whether the appellant had addressed the interviews with the defendant to be told he had not. Mr West responded:

The appellant added that he had no interest in when the case was to be called on again because he “did not really want to know”; he left the building and when he was contacted said that he was on his way back to chambers.

Judge Kelson asked the appellant to prepare a report to explain why he failed to come back to court the previous afternoon despite being ordered to do so. The appellant refused, questioning the judge’s jurisdiction to make the original order. He then went on to consider whether to make a wasted costs order against the appellant in respect of the hearing on 14 April, adjourning to allow the appellant to obtain representation. A hearing date was set for 23 April.

The appellant then challenged the judge for describing him as impertinent. He said this:

Judge Kelson concluded the hearing with the remark:

On 17 April 2014, the Judge Kelson caused an e-mail to be sent to the appellant informing him that the issue of contempt of court, arising from his non-attendance on Monday afternoon and his refusal to assist the court further in case management issues, would also be considered at the adjourned costs hearing.

Following a delay in receiving the transcripts from 14 and 15 April, the matter came back before Judge Kelson on 25 April: Mr Cox QC had then been instructed to appear for the appellant. Prior to dealing with the contempt issue, the judge considered wasted costs but was persuaded that a wasted costs order was not available to the court because no costs had actually been incurred: the prosecution had expended none and the defence are paid one fee for the case irrespective of the number of hearings. The judge did, however, conclude that costs had been wasted by failure to conduct the proceedings with reasonable competence or expedition. Accordingly, he made an observation for the attention of the appropriate authority that, if the matter arose, the appellant should not be paid at all for his attendance at the hearing on 15 April, to which he had contributed nothing meaningful.

Turning to the issue of contempt, Judge Kelson refused an application that he recuse himself, finding that it was appropriate for him to hear the matter. He said that the appellant was “far over-stepping the mark in courageously representing this defendant” and referred to Chartwell Estate Agents v Fergies Properties SA & Hyam Lehrer [2014] EWCA Civ 506 making it clear that he was not motivated “by any desire to flex judicial muscles” and believed that courts run more efficiently when governed by consent. The judge went on:

The judge recognised the validity of Mr Cox’s submission that no costs had actually been incurred and made the observation about payment for attendance to which we have referred. As for contempt, Mr Cox referred to Archbold 2014 (at para. 28-85) which noted that failure by a lawyer to co-operate with the court for example by not attending a hearing, “however discourteous, may not necessarily amount to contempt”. Mr Cox submitted that how far it is appropriate to challenge a client with the evidence and at what stage is also a matter for counsel’s judgment; in this case, the only purpose of adjourning was for a further conference. He also argued that the court had no power to require the attendance of advocates: whether they did so was between them and their clients: thus, failure to attend could not be a contempt.

The judge observed:

In the circumstances, in finding the appellant guilty of contempt and imposing a fine of £500, the judge made it clear the order that the appellant must attend was designed to satisfy the judge that appropriate expert advice had been brought to bear on an obvious area of the preparation of the case. He put it this way:

There then followed a subsidiary issue. The judge was concerned not only that the appellant had refused to assist the court in respect of case management issues and had failed to attend court when required to do so, but had also been “impertinent and disrespectful” towards the court on the following day; notwithstanding the judge’s invitation, he had also failed to prepare a report explaining his conduct for Globe J (a presiding judge of the circuit), instead “he flatly refused to prepare such a document before giving me a lecture on what he perceived were my powers”. When the appellant again repeated his refusal to comply with that request, the judge referred that conduct to the Bar Standards Board, identifying himself as making the complaint.

Two of the grounds advanced on behalf of the appellant concern procedural points. First, Mr Cox argues that Judge Kelson erred in failing to recuse himself from the contempt proceedings. Porter v Magill [2002] 2 AC 357 makes it clear that, save where actual bias is established, personal impartiality is to be presumed but the question whether the material facts give rise to a legitimate fear that the judge might not have been impartial must be determined on the basis whether a fair minded observer would consider there to be a real danger of bias. Reflecting the common law, CPR 62.8(5)(b) provides that the court which conducts the enquiry may include the same member of the of the court that observed the conduct unless that would be unfair.

It was submitted that the exchange between Judge Kelson and the appellant on 14 and 15 April, in particular the comments Judge Kelson made about the appellant, gave the appearance of partiality and if, as Judge Kelson acknowledged, it would have been possible to adjourn the matter to another judge, this was the proper course of action. We do not agree. There is no doubt that the judge had taken the view that the appellant had been impertinent to him but it goes far too far to suggest that this view demonstrates an inability impartially to determine whether the conduct constitutes a contempt of court: it is not merely the words uttered (which can be read on the transcript) but also the way in which this exchange occurred that is relevant: only the judge was in a position to assess that feature. The discretion to deal with contempt summarily properly remained with the judge: this complaint is rejected.

Secondly, Mr Cox submits that the fairness of the contempt hearing was jeopardised when Judge Kelson made reference in his judgment to authorities and materials (in particular in relation to the case management and contempt provisions in the CPR) about which he had not given notice or invited submissions. To the extent that it is argued that the judge cannot range beyond the authorities cited, the submission goes too far: it is not an unusual occurrence that judicial research reveals additional relevant authority and it is a matter of judgment whether, in a particular case, the parties should be given notice and allowed to address further argument. In this case, as everyone appreciated, case management was at the core of the judge’s complaint and it is remarkable to suggest that reference to the contempt provisions of the CPR could or should have taken anyone by surprise.

However, this argument masks a further point which was deliberately not taken by the appellant (even after we raised it): this concerns the manner in which Judge Kelson responded to the conduct complained of and, in particular, his adherence to the contempt provisions of the CPR. Mr Glasgow helpfully sets out the procedure that should be followed by the Court when confronted with conduct which might amount to contempt. Where the court observes “obstructive, disruptive, insulting or intimidating conduct … affecting the proceedings”, CPR 62.5(2) provides that the court must:

Where the court postpones any enquiry into the conduct of which complaint is made, CPR 62.7 provides:

Where the court chooses on its own initiative to deal with conduct which it can deal with as a civil contempt of court, the court is similarly required by CPR 62.9 to prepare a statement which identifies the respondent, explains the application, contains the particulars of what is alleged and includes a notice of the courts powers. This must be served on the respondent together with a notice of where and when the court will consider the allegation.

The procedure Judge Kelson followed at the hearing on 15 April was to ask the appellant to prepare a report explaining why it was, despite being ordered to attend in the afternoon, he failed to return. The appellant refused to comply with this request. Judge Kelson concluded the hearing with a confirmation that the adjourned hearing on 23 April would be addressing the issue of wasted costs, he did not mention contempt of court at this stage although, on 17 April, the appellant was informed by e-mail that the judge also wished to consider the issue of contempt of court at the adjourned hearing. On 25 April, Judge Kelson received submissions on contempt by Mr Cox on behalf of the appellant.

While the appellant was thus made aware in advance of the hearing that contempt of court would be considered, the notices provided clearly fell short of the procedural requirements set out in the CPR. In the normal course, compliance with the strict provisions of the CPR can be waived by the parties or the court; in cases of alleged contempt, however, we have no doubt that strict observance of the provisions is essential. As Mr Cox observed, the contempt jurisdiction is a powerful tool which can directly impact on the liberty of the subject. Compliance with the CPR allows the ‘charge’ to be fully formulated and beyond doubt; it provides a structure which forms the four corners of what is in issue and it avoids the very criticism that Mr Cox did advance in this case.

In the circumstances, given the significance of the jurisdiction of contempt of court, we have come to the conclusion that this failure of process invalidates the conclusion that the judge reached. We recognise that it is likely to have made little difference but we are not prepared to assert that; it is far more important to underline the vital importance, where issues of contempt arise in circumstances of this nature, of following the approach laid down by the CPR.

Given the importance of the issues and the necessity of clarity, however, we must analyse the substantive issues and it is to these that we now turn.

Mr Cox submits on behalf of the appellant that the Crown Court had no power to compel or otherwise direct the appellant to attend the adjourned hearing on 14 April. The appellant relies on the statutory provisions which confer powers to compel the attendance of the accused, recognisances and witnesses (s. 80-81 Senior Courts Act 1981 and the Criminal Procedure (Attendance of Witnesses) Act 1965) and argues that there is no corresponding provision applicable to legal representatives.

The appellant further submits that the court’s case management powers do not extend to ordering the attendance of the legal representatives for an accused generally, or for a particular barrister or solicitor to a specified hearing. He submits that whether a legal representative attends any particular hearing is primarily a matter between that representative and his client and where the client consents to the representative’s absence, this ought to be sufficient.

We profoundly disagree. As Mr Glasgow identifies (and the judge found), Part 3 of the CPR (at 3.5) makes it clear that the court’s case management powers enable a judge to give any direction and take any step actively to manage a case. If a case cannot be concluded at any hearing, the court is required to give directions so that it can be concluded at the next hearing or as soon as possible after that (CPR 3.8). While the rules do not refer explicitly to a power to require the attendance of appropriate legal representation, it is clear that this is implied by the broader case management powers to make directions or orders that will progress the case: participation in case management is not a private arrangement between the client and the lawyers which the judge cannot affect. Were it otherwise, a client would be able to permit his lawyer to absent himself from part of a trial, irrespective of the views of the court.

Such a requirement is not (as Mr Cox postulated) at peril of being imprisoned for contempt. There are many entirely appropriate reasons why a representative will not be able to attend court: other professional commitments, ill-health, personal tragedy are but a few and courts regularly make every allowance for these. That is not the same, however, as wilful and deliberate disobedience of an order of the court as an act of defiance and so that the position is beyond doubt, we have no doubt whatsoever, that this is the accurate description of the appellant’s conduct on this occasion.

The contention that the judge had no power to put the case back and that counsel’s duty to his client and the court did not then require him to be present (absent good reason, explained to the judge) is, in our judgment, unarguable. Whether or not the conduct of the appellant falls within the contempt jurisdiction as a matter of law, that he showed contempt for the order of the court is clear: neither can this be portrayed as counsel standing up for his client in the face of improper judicial pressure. The judge was perfectly entitled to make the enquiry that he did, in the light of what he knew. Neither was the enquiry difficult for the appellant to answer: he was doubtless well able to understand the difficulties facing his client and well able to respond by saying that, on present instructions, there was either no issue as to admissibility or that there could well be but that the position would only be capable of final clarification when the full transcript was available. It would also have been appropriate for the court to understand that the appellant was fully aware of consequences to him of delay.

It is particularly worrying therefore, that even before us, the appellant was not prepared to acknowledge that he had behaved other than impeccably: he was not discourteous. The highest that Mr Cox put it, on instructions, was that the appellant’s style was “somewhat laconic and terse”. We do not agree: in our view, it was serious misconduct of a type that is wholly inimical to the proper discharge of his professional duties and, furthermore, in total disregard of his duty to the court. We have no doubt that the temperature of the exchange increased as it proceeded: that was entirely the responsibility of the appellant and, on the following day, to require an apology of the judge was more than merely impertinent.

The law of contempt is available to provide a fair trial, to ensure compliance with the court’s orders and to protect the proper administration of justice, the sole purpose of the jurisdiction being “to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented” (per Salmon LJ in Morris v Crown Office [1970] 2 QB 114 at 129E). At common law, contempt of court is an act or omission which is calculated to interfere with the administration of justice (Attorney-General v Times Newspapers Ltd [1992] 1 A.C. 191 HL) and the act or omission complained of is calculated to interfere with the due administration of justice where there is a real risk, as opposed to a remote possibility, that prejudice will result: see Attorney-General v Times Newspapers [1974] AC 273.

The requisite intention was set out in Attorney-General v Newspaper Publishing plc [1988] Ch. 333 in this way (per Lloyd LJ at page 383):

Mr Cox refers to two decisions, concerned with non-attendance, relevant to these issues (but which, save for the note in Archbold do not appear to have been before the judge). In Izuora v The Queen [1953] AC 327, a barrister was excused attendance at the delivery of a reserved judgment: when opposing counsel made a similar request, the court ordered both to attend. The barrister who had been granted permission failed to appear. He was fined £10 for contempt, but the finding was quashed by the Privy Council. Having referred to Parashuram Detaram Shamdasani v King-Emporer [1945] AC 264 in which Lord Goddard made clear (at 270) that the usefulness of the power to punish for contempt “depends on the wisdom and restraint with which it is exercised” Lord Tucker put it this way (at 335):

Weston v Central Criminal Courts Administrator [1977] 2 QB 32 concerned a solicitor who learnt that a case in which he had just been instructed (but not put in funds), which was not ready for trial, had been listed for the following day. He was told it was too late to remove it from the list and, having written what was described as an offensive letter to the court, sent his client alone whereupon the trial was listed for the following Monday. The solicitor was told of the listing by his client and put in funds but wrote another letter of protest, again sending his client requesting that the date be fixed by reference to counsel’s availability on the basis that the case could not be ready. The judge then ordered the solicitor’s attendance (the fact being communicated again by the client) and when he did not appear, issued a bench warrant. There were clearly many misunderstandings on both sides but when the solicitor refused to apologise for the letter, he was ordered to pay £200 towards the costs of the prosecution.

The Court of Appeal set aside the order on the basis that there was nothing that the solicitor had done to interfere with the due administration of justice or to disobey an order of the court: the discourteous letter “did not interfere with the course of justice in the least”. Applying Izuora, he had therefore not “crossed the line dividing mere discourtesy and breach of duty to a client or the court from contempt”. Further, contempt is not punishable by an order to pay costs.

As for the failure to attend, Lord Denning MR made it clear (at 43G):

Stephenson LJ put it this way (at 46C):

For our part, we readily accept that not every failure to co-operate or refusal to attend court is a contempt; that is very different, however, from saying that failure to co-operate or refusal to attend court could never be a contempt: it clearly can be. Judge Kelson found the appellant to be in contempt of court by failing to (a) attend the adjourned preliminary hearing as directed; and (b) assist with the case management requests that were made of him. However the judge considered the principal issue to be the former. We repeat his findings:

We do not have to decide in this case whether the appellant intended by his conduct to hinder or delay the hearing, given, first, that it would not impact on the date of trial and, second, that he was clearly far more intent on demonstrating that his view of the interests of his client was far more important than anything the judge had to say about the interests of the case. His breathtaking arrogance meant that it is entirely plausible that he never stopped to think about the impact of his conduct and it is of the very greatest concern that he still is of that mind. On any showing, his behaviour in failing to return when ordered to by the judge amounts to a wilful disregard of the authority of the court worthy of serious sanction.

For want of procedural regularity, we allow the appeal and set aside this finding of contempt. This should not, however, be seen as an endorsement of the appellant’s behaviour. On the contrary, we repeat the descriptions which we have used in this judgment. Mr West’s conduct constituted wilful and deliberate disobedience of an order of the court as an act of defiance which is serious misconduct of a type that is wholly inimical to the proper discharge of his professional duties and, furthermore, in total disregard of his duty to the court. He has shown breathtaking arrogance and his demand that the judge apologise to him was more than merely impertinent. This conduct should be considered by the Bar Standards Board to which we direct that a copy of this judgment should be sent.

We have no doubt that this type of incident is extremely rare. Mr Glasgow helpfully set out the alternative options for the court: these took the form of adverse orders for costs. The difficulty, however, is that in cases such as this, it is clear that although the court’s time will have been engaged (with consequent costs), the parties are unlikely to have suffered financially not least because of the way in which public funding is structured.

We recognise that problems surrounding issues of vigorous and effective case management can arise in different ways. In Director of Public Prosecutions v Radziwilowicz [2014] EWHC 2283 (Admin), the Divisional Court was concerned with failures on the part of the prosecutor at a procedural hearing which led to a trial being brought on and dismissed notwithstanding that there had never been the slightest intention of that being a trial date. Again, it was difficult, if not impossible, to identify whether and if so what costs had been wasted. I said:

We add one further comment. The preparation by the prosecution of the summary in this case was truly exemplary and both the prosecution authorities and the court are to be congratulated for grasping the putting into place of a system that fully addresses the principles of early disclosure. As we grapple with ways of improving efficiency so as to ensure that the limited resources available from public funds both for prosecution and defence are used as effectively as possible, the importance of early substantive disclosure of the allegation and evidence is critical. It permits the court to grapple with the real issues in those cases that are to be contested and to dispose of those that are not, in each case as early as possible. The approach of Judge Kelson was entirely in keeping with this imperative. On the other hand, the conduct of Mr West, if it was to become the norm, will cause our present system to collapse for want of sufficient funding with the risk causing enormous damage and replacement by a process that imperils many of the hard gained improvements designed with the interests of justice in mind.