HM Solicitor General v Cox & Anor

The Solicitor General brings these committal proceedings against the respondents, Kyle Cox and Damien Parker-Stokes, with the permission of the Divisional Court, Irwin and Foskett JJ, granted on 20 October 2015. He seeks their committal to prison for taking photographs in court at Bristol Crown Court, including photographs of their friend, Ryan Sheppard, during his sentencing hearing for murder. Committal is also sought for their publishing some of the photographs on Facebook, a contempt aggravated by comments, variously supportive or worse, of Sheppard as he faced life imprisonment, critical of the acquitted co-defendant of Sheppard and of another female present at the murder scene, and derogatory towards a judge or the judiciary generally.

Sheppard, then aged 17, murdered Mark Roberts in Weston-super-Mare in the early hours of 12 October 2013 in what the Recorder of Bristol, HHJ Ford QC, in sentencing, described as an unprovoked, sustained, brutal and cowardly attack. The murder was filmed on a mobile phone by a female friend of Sheppard, his acquitted co-defendant. Sheppard pleaded guilty. The phone has not been traced, but there was evidence, referred to at the sentencing hearing, that Sheppard and others viewed it shortly after the murder. The prosecuting QC described that as an element of triumphalism.

Sheppard’s sentencing hearing took place at Bristol Crown Court on 4 August 2014, in Court 2 at 2 p.m. The prosecutor opened the facts. The victim’s partner and his aunt, on behalf of his mother, read their moving Victim Personal Statements aloud to the court. Other members of his family were also present. It was a very stressful and emotional experience for them. Sheppard’s family and friends were in the public gallery. He was sentenced to life imprisonment with a minimum term of 12 years and 3 months.

Parker-Stokes, aged 18 by 4 August 2014, had arrived at the Crown Court during the morning session. He noticed that another friend of his was appearing in Court 2. He went into Court 2. There, he took a photograph on his mobile phone of his friend on the screen, appearing by video-link. In the afternoon, Parker-Stokes was in the public gallery of Court 2 with Cox, Sheppard’s family and other friends, for the sentencing of Sheppard. From there, on his mobile phone he took five photographs and a short video of Sheppard in the dock. Some images show dock officers. Some images, and the video, include part of the notices prohibiting the use of mobile phones; the composition of the pictures suggests that that was deliberate.

Cox, now just 18, had also arrived at the Crown Court in the morning. He went into Court 10 where HHJ Picton was sitting. At 10.57 a.m. he used his mobile phone to take a photograph of the judge. The court was in session but it appears that no case was actually being heard. Cox was later present in Court 2 for Sheppard’s sentencing hearing.

Some of the images were uploaded on to various Facebook pages, with comments. On 4 August 2014, Parker-Stokes uploaded an image of Sheppard in the dock on to Sheppard’s Facebook page, adding the comment: “Respect g at least u had the balls to admit it accept some slaggy little girls who are two shock to admit it that had to try to blame it on u nuf love xx.” The two girls referred to were the acquitted co-defendant and a key prosecution witness. That same day, Cox uploaded the same image on to his own Facebook page, adding this: “Ride or Die Certified Southwest G”. It was not seriously disputed but that “G” was in common use as a shorthand for gangster, and “Southwest G” was a self-descriptor used among the likes of Sheppard and his friends, that is to say youth within the criminal justice system in Weston-super-Mare. Cox also commented on Sheppard’s Facebook page, under the image of Sheppard in the dock: “Ride it g love ya loads snm anyone got summat to say say it love ya kid xx”. On 6 August 2014, Cox uploaded on to his own Facebook page the picture which he had taken of HHJ Picton in court, adding the words “Fuk the judge!”.

At that time, Sheppard’s Facebook page was accessible by 276 “friends”, and Cox’s by 1406 “friends”. 25 people “liked” the posting on Sheppard’s Facebook page, with 7 commenting on it. 63 “liked” the posting of the image of Sheppard, with commentary on Cox’s Facebook page, with 3 commenting; 43 “liked” the posting of the image of HHJ Picton, with its comment.

The family of the murder victim, Mark Roberts, brought the Facebook postings to the attention of the police team which had investigated his murder and, later, court staff did the same. HHJ Ford QC was informed of this and that the police were proposing to refer the matter to the Attorney General’s Office, once the investigation was complete. He asked that the Attorney General be informed that it was, in the judge’s view, important that the Attorney General appreciate that the image of Sheppard had been taken during the sentencing hearing for an offence of murder, and at a time when the deceased’s family was in court; and that the text material attached to the images suggested that they were being treated as “trophy images”.

Parker-Stokes was arrested and interviewed on 25 September 2014. He admitted taking the picture of Sheppard in the dock and posting it on Sheppard’s Facebook page, with the accompanying text, but said that he did not know it was an offence to take pictures in court. He “apologised” for his actions. It was only later that the other photographs and video on his mobile phone were discovered, and he was interviewed again in December 2014. He admitted taking them but maintained his ignorance that taking photographs was an offence. He denied having read or seen the signs at the Crown Court prohibiting the use of mobile phones in court. He again said that he “apologised” to the court and to the family of Mr Roberts, but continued to deny committing any contempt.

Cox was interviewed the day after Parker-Stokes was first interviewed. He admitted taking and posting the image of HHJ Picton, but also said, untruthfully, that he, not Parker-Stokes, had taken the image of Sheppard in the dock and had uploaded it to Facebook; indeed, he claimed that he had taken all the photographs. He refused to tell the police where the mobile phone was, giving “no comment” answers to questions about it. He too “apologised” for his actions, but denied knowing he was committing an offence.

Neither Cox nor Parker-Stokes are unfamiliar with courts and their procedures: Cox has been convicted on 9 occasions of a total of 16 offences, 4 of which related to police, courts or prisons. He was last convicted in March 2014, and was on licence on 4 August following a custodial sentence arising from earlier breaches of court orders; Parker-Stokes has been convicted on 21 occasions of 54 offences, with an extensive history of breaching court orders. 27 of his offences related to police, courts or prisons. His most recent conviction was in September 2014.

There are signs at the entrance to every court room at Bristol Crown Court, slightly larger than A4 size, saying: “Notice to All Court Users. The use of mobile telephones, recording equipment and personal stereos is not allowed in the courtrooms”. Another sign at the entrance to courtrooms, and it appears to be the one visible in the photographs taken by Parker-Stokes from the public gallery, states: “Switch off mobile phones. Please ensure all mobile phones are switched off before entering court or hearing room.” At the entrance to the public gallery for Court 2 is a sign saying, among a short list of requirements, “….Mobile phones should be switched off and remain out of sight.” The general information board has a notice saying: “It is an offence to take photographs, record video clips or make unauthorised audio recordings anywhere in this hearing centre.”

Parker-Stokes’ affidavit for these proceedings stated that his comments were meant to congratulate Sheppard for having the courage to admit what he did, unlike the two girls who were with him at the time, and who blamed it all on him. “Respect” was a greeting. “G” was simply something that his friends called each other; he did not know that it meant “gangster”. He wanted Sheppard to know that he was thinking of him. It was not done to glorify Sheppard. Mr Willmott on his behalf submitted that no alternative meaning had been put forward. He had no intention of interfering with the course of justice, and “did not foresee that justice might be interfered with”. He had not been to the Crown Court before and was unaware of the prohibition on taking photographs. He was distressed to learn that the victim’s family had seen the photographs and comment, since they would not understand what he was saying; he would like to apologise to them. Parker-Stokes was in custody at the time of the contempt hearing, and declined to come to court. He had the opportunity to give evidence before us, but in effect declined it.

Cox decided to give no evidence either, but he had failed to provide the required affidavit for that purpose anyway. We focus on the submissions made on behalf of Parker-Stokes, since, after the hearing, Cox admitted that he was guilty of contempt of court, and was therefore in a position to apologise for his contempt, as he did. This was a course of action for which he will receive credit.

The application for committal was based on interference with the administration of justice in connection with criminal proceedings. Criminal contempt in essence is based on conduct that denotes wilful defiance of or disrespect towards the court, or that wilfully challenges or affronts the authority of the court as the guardian of the rule of law and which thus interferes with the due administration of justice.

Mr Watson on behalf of the Solicitor General submitted that the use of mobile phones to take photographs in courts, and in criminal courts especially, and then to disseminate the images on social media was an increasing concern. The Solicitor General sought to establish clearly that these were indeed contempts by both the taking of the photographs and by their subsequent publication on social media, which Parker-Stokes continued to dispute, and that these two forms of contempt were to be taken very seriously indeed, with commensurate punishment.

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

Mr Watson submitted that the actus reus of the contempts was made out in relation to the taking of photographs in court and their publication by the very fact that each was an offence under s.41 of the CJA 1925: it is an offence to take in any court any photograph under s.41(1)(a), or to publish any photograph taken in contravention of s.41(1)(a) under s.41(1)(b). The fact that the photograph of HHJ Picton in his court was taken at a time when no case was being heard did not prevent that being an offence in view of s.42(2)(c), which deems a photograph to have been taken in court if it is taken in the courtroom or in the building or its precincts. The use of the mobile phones for taking the photographs was also in breach of the various orders posted around the court buildings, which should be taken as judicial or judicially sanctioned orders made for the purpose of preventing interference with the due administration of justice. The publication of the images through the Facebook postings constituted a contempt for the same reasons. It was itself an offence, and it compounded or was a purpose of the contempt committed by the taking of the photographs. Orders prohibiting the use of mobile phones and photography prohibit, by necessary and obvious implication, the publication or other use of images obtained by breaching them.

Mr Watson did not contend that, on the facts of this case, the comments relating to the images of Sheppard, although significant aggravating features, were separate acts of contempt themselves. Cox, in interview denied that he had any feelings of hostility towards HHJ Picton; “Fuk the judge” was directed at the judiciary in general, personified for these purposes by the image of HHJ Picton in court. Although the offence of scandalising the judiciary was abolished by s.33(2) of the Crime and Courts Act 2013, the Act provided that an act of “scandalising the judiciary”, remained punishable as a contempt if it was also another form of contempt. We agree that on the facts of this case those words may not amount to another form of contempt, but that they should be regarded as an aggravating feature of the contempt committed by Cox’s admitted contempts in taking and publishing the photograph of HHJ Picton.

Mr Watson contended that the mens rea of contempt relevant here was that each of those acts was deliberate, though he also submitted that if a specific intention to prejudice the course of justice were required, this Court should infer that that intention had been proved on all the evidence.

Mr Willmott submitted on behalf of Parker-Stokes that the actus reus of contempt was the creation of a real risk that the course of justice, in some not insignificant way, would be prejudiced or impeded. The fact that taking photographs in court was a criminal offence did not make the act of itself a contempt of court; nor of itself would the fact that an act was done in disobedience to a direction of the court. It would not be right to extend the ambit of contempt in this way when the statutory offence under the CJA 1925 had been created to deal with this particular issue. There was no evidence that the signs about the use of mobile phones were based on any order of the court. There was nothing in the photograph of Parker-Stokes’ friend appearing by video-link which could interfere with the administration of justice. There had to be a specific intention to impede or prejudice the course of justice, and that could not be proved here.

The issues revolved therefore around the actus reus and mens rea for contempt of court in the illegal taking and publication of the photographs.

The taking and subsequent publication of the photographs on Facebook, in our view, each constitute the actus reus of contempt. First, illegal photography will in general interfere with the proper administration of justice through the very fact that it defies the criminal law relating to the administration of justice. Second, the statutory prohibition on photography in court is also a reflection of the serious risk to the administration of justice necessarily inherent in photography in court without the permission of the court which can be given under the relevant statutory provisions in very limited circumstances. This prohibition is underlined by the notices forbidding the use of mobile phones and photography in court buildings. These were plainly worded as orders, obviously made to protect court proceedings and clearly made with the approval of the court to protect its proceedings from interference. Such photography inevitably poses serious risks to proceedings or participants in them; those serious risks may be continued or enhanced by the use made of illegal photographs, whether by publication or some other use. The facts of this case illustrate both those serious risks.

The real and specific risk of serious interference with the proper administration of justice are evident. Although the taking of the photographs was not noticed by any responsible person at the time, and these illegal acts did not in those circumstances disturb proceedings, the serious risk posed by photographs taken during the sentencing hearing to its proper conduct is obvious. If the taking of the photographs had been observed, the proceedings would have suffered a grave distracting interruption, perhaps at a very sensitive stage, adding greatly to the stress and grief of the victim’s family and friends; and perhaps to some of Sheppard’s. It would have been obvious that it was a friend of Sheppard who had taken the photograph. Furthermore, and especially in the context of the previous use of a video to record and revel in the murder, it is not hard to see not only the immense distress it would have caused to the family of the murder victim but also the public order consequences which could have arisen. Some of the photographs included the dock officer, and although he could not be identified from the photographs directly, it is possible that digital enhancement could reveal who he was. The taking of the photographs was also the necessary precursor to the publication of one on two Facebook pages, with offensive commentaries.

The photograph, taken in breach of the criminal law and of the various orders posted around the court building, of Parker-Stokes’ friend appearing in the morning over the court video-link, created the real risk of interference through disruption of the proceedings, though less sensitive, even if no use was to be or had been made of them. The same also applies, as is now accepted, to the photograph of HHJ Picton, taken by Cox.

The publication of the illegally taken images was itself a contempt, and one which aggravated the contempt committed by the taking of the images. The publication of an illegally taken image is an offence. It was also by obvious and necessary implication, contrary to the orders posted in the court building which forbad the images being taken at all. Any such publication shows, even boasts, that the criminal law and authority of the court, in its orders, has been successfully flouted, diminishing its necessary authority over the conduct of its proceedings and its role in upholding the rule of law.

The illegally taken photograph of Sheppard was published as the vehicle for comments which on any view were designed to express public support to the murderer, on behalf of his friends. Parker-Stokes’ and Cox’s posting showed to the public, constituted by their selection of Facebook friends and others, a successful breach of the prohibition on photography, which one of them had got away with, and which those with access to the image could then use for their own amusement or for support of a murderer. Those involved in other cases, in whatever form, but not least the youth of Weston-super-Mare, would be aware that a prohibition which they might equally wish to breach, could be breached for their own purposes. Those involved in upholding the proper operation of the criminal justice system, including witnesses, would be aware of the publicity which could be given to them through the use of illegal photographs. That obviously creates a serious risk to the due administration of justice.

The sentencing stage of criminal proceedings is serious for all concerned, including the family and friends of the victim, who are entitled to see, their loss notwithstanding, that the law and the authority of the court has prevailed and their status as victims of the most serious crime were properly respected. Instead, publication of the photograph of Sheppard, and the opportunity this gave for the various comments, underlined his friends’ affront to the proper administration of justice. Here, at a time when it sentenced Sheppard for murder, the authority of the court had been flouted by a friend of the murderer by taking the photographs, and then again by his two friends in the publication of the image on the two Facebook pages, aggravated by the commentary. The publications told the murderer’s friends that Parker-Stokes and Cox had got away with breaking the law and breaching the court’s orders; that they had no regard to the feeling of the murder victim’s family. It is important to recall that the sentencing of a criminal and its immediate aftermath and the respect to which victims are entitled are an essential part of the due administration of justice; the actions of Parker-Stokes was a grave interference.

We reject Mr Willmott’s contention that there had been no real risk to the course of justice from publication, even if he were right that digital enhancement could not lead to the identification of the dock officer. True it is that no court official could be identified; the photographs gave no information about the layout of the court which could not be obtained from a quick glance from the public gallery; the trial itself was over; the Facebook postings could not interfere with the actual sentencing hearing since that stage, the last in the process, had concluded before they were made. However, he entirely overlooked the grave interference and serious risks which did arise, as we have set them out, in enumerating others which might not.

Although the criminal proceedings were ended, absent any appeal, at the conclusion of the sentencing hearing, the interests of the due administration of justice did not simply end there, as we have explained. The CJA 1925 prohibition on taking photographs does not end; the prohibitory notices in the court building continued to have effect. Participants, including witnesses and jurors, may face reprisal, intimidation, abuse. One witness and the acquitted co-defendant did face such abuse through the comments accompanying one of the Facebook postings. The judiciary faced abuse. The due administration of justice plainly also includes the protection of victims and their families from the use of illegally taken photographs for whatever purpose, including to undermine or belittle the outcome of the criminal process or the authority of the court.

The fact that taking photographs in court and publishing them are criminal offences, does not prevent those acts being punishable as contempts of court as, for the reasons we have given, these actions pose serious risks to and interfere with the due administration of justice: the court obviously has power, as it needs, to deal immediately with anyone seen taking photographs, in order to maintain control over its proceedings, and to avoid it standing powerless while the law designed to protect the administration of justice is broken before it. With the current technical capabilities of mobile phones and the internet, such photographs can be published almost immediately, or emailed from the phone for later retrieval or use by others. Whilst the later publication of such photographs may not be a contempt in the face of the court, it is still a contempt, quite apart from the fact that it is a criminal offence, since publication for a variety of reasons may be the very purpose behind the taking of the photograph illegally. While a summary criminal charge may be the appropriate response to some illegal photography, there are other cases in which it will not be and needs either swifter or more condign action by the court to uphold the due administration of justice; this was such a case. It clearly required the Attorney General to bring proceedings for contempt, taking into account the gravity of the risks and of the interference with the due administration of justice.

Our analysis is supported by authority, which is also relevant to mens rea. Two decisions of the Court of Appeal Criminal Division show that illegal photography within a court building amounts to a contempt of court.

In the first case, R v Vincent D (Contempt of Court: Illegal Photography) [2004] EWCA Crim 1271, the Court of Appeal Criminal Division (Lord Woolf CJ, Aikens and Fulford JJ) in the judgment delivered by Aikens J, described the growing and disturbing problems created by those who take illegal photographs during criminal proceedings. The appellant was the brother of the defendant in a major drugs trial, which involved a protected witness. He took a photograph in the canteen area, and another from the public gallery facing towards the witness box, witness and bench. The quality was too low for the witness to be identified. The third photograph showed the dock, the defendant and a prison officer. The appellant denied any sinister intent; it had been done “in the spirit of fun”. This was dealt with by the trial judge as criminal contempt. The Court of Appeal Criminal Division held that he had been entitled to do so. The appeal was against the 12 month sentence he imposed. The taking of each photograph was a separate contempt. It appears that there was no actual disruption to the trial, or evidence that any juror had been frightened, but there were risks that that could have happened, and that the layout of the dock (the only secure one in Merseyside) and court could become known to the public at large. There were possible risks which such photography could create for the trial. It appears that the judge accepted the appellant’s statement as to the absence of sinister or disruptive purpose in taking the photographs.

Aikens J, in setting out factors as to the appropriate level of sentencing for contempt of court through taking illegal photographs with a mobile phone during a criminal trial, enumerated the risks which illegal photography could create: intimidation of juries and witnesses, even of lawyers or judges. There could be risks to police or dock officers. Such photographs could easily be passed on to others for misuse, or could come into the hands of the wrong person through the ease of publication. Relevant factors for sentencing included the potential for misuse and disruption. The potential for considerable disruption was clear. It might be that in some cases, prison would not be appropriate, such as “where a foreign tourist has inadvertently taken a photograph, perhaps in ignorance of English law”. The implication is that that would still be a contempt, and “inadvertently” must mean “deliberately but not knowing of the law.”

Contempt had been made out even though there was no actual disruption to the trial or further risk of prejudice, and even though it did not appear that the judge had found that the appellant had had any intention to interfere with the administration of justice, though the photographs were obviously taken deliberately. Nor had s.41 of the CJA 1925 prevented illegal photography being a contempt of court. The illegal photography was dealt with as a contempt in the face of the court, though it had not actually disrupted court proceedings. It followed that it could be dealt with on application for committal as well. The judgment acknowledged that the risks to the due administration of justice were made graver by the ease with which photographs could be taken covertly on a mobile phone and widely disseminated privately or publicly, even from the phone itself.

This case was followed in the second case, R v Ivanov [2013] EWCA Crim 614, another appeal against a sentence of imprisonment for criminal contempt. The trial had had to be aborted as a result of the effect on members of the jury of the appellant taking photographs in court. He knew of the prohibition on photography in court. The judge accepted that the appellant however had not intended to cause any disruption or to frighten jurors, and perhaps that he had no intention of disseminating the pictures afterwards, but nonetheless found him guilty of contempt and sentenced him to a term of imprisonment. The crucial feature again was that the court did not regard the plea of guilty to contempt, as in Vincent D, on the basis of the accepted contention that no intention to disrupt was proven, as equivocal, that is, as containing the assertion of facts which, if they might be true, would provide a defence.

Mr Willmott dismissed these cases as irrelevant, or at least as lacking authority, since they were appeals against sentence following pleas of guilty to the contempt, and were reached without argument as to whether they were contempts. Vincent D only showed how taking photographs might interfere with the administration of justice.

We reject this submission. The Court of Appeal’s understanding of the law was clear. The court included Lord Woolf CJ who had appeared in Attorney General v Leveller Magazine Ltd [1979] AC 440 (to which we refer at paragraph 41 below). The law was not regarded as new or uncertain. It is fanciful to think, as Mr Willmott argued, that the Court of Appeal had overlooked that well-known decision. Indeed the law would have been regarded as obvious, because of the need for the court itself to have power to take swift steps to prevent or punish the creation of risks to the administration of justice: see the article by Neil Parpworth in (2004) 168 JPN 908.

The decision in Robertson and Gough v HM Advocate [2007] HCJAC 63 reinforces our view. Gough, “the naked rambler”, argued that his desire to appear naked in court, an act which he characterised as a fundamental freedom, was not an act calculated to offend the authority and dignity of the court; in order for his naked appearance to constitute a contempt of court, it had to be established that it interfered with the due administration of justice, which he did not intend. The High Court of Justiciary gave examples of forms of contempt, including what were described as disciplinary matters of good order, such as taking photographs in court, citing Vincent D as an uncontroversial example at paragraph 32 of its decision, and the more serious ones where there was a direct challenge to the authority of the court and to the integrity of its proceedings, which included an attempt to pervert the course of justice. The Lord Justice-Clerk (Lord Gill), with whom the other four judges agreed, said:

This clearly supports the view that the actions of Parker-Stokes here were contempts of court. Paragraph 75 is also very clear on the mens rea required.

Finally it is necessary to refer to Attorney General v Leveller Magazine Ltd on which Mr Willmott relied. The case concerned the publication of the identity of a witness known only as Colonel B, a witness in an Official Secrets Act prosecution. The principal issue related to the nature and effect of what the Magistrates’ Court had a right to order and had in fact ordered about the keeping confidential of Colonel B’s identity. In that context Lord Diplock described contempt of court, at p.449F:

Nothing in these passages supports Mr Willmott’s contention. On the contrary they entirely support the view we have set out and the decisions in Vincent D and Ivanov. Mr Willmott, however, referred to a passage in Lord Scarman’s judgment at page 469H, where Lord Scarman said that not every interference with the course of or administration of justice was a contempt. The interference had to be such “as to render impracticable the administration of justice or to frustrate the attainment of justice either in the particular case or generally.” Lord Scarman’s formulation was not adopted by any others in the court and was an observation which went well beyond what was clearly stated by the other Lords of Appeal and the other passages in his judgment to which we have referred.

Mr Willmott also relied on a passage, at p 465 B-D in the judgment of Lord Edmund-Davies, to the effect that not every breach of an order preventing the publication of what happened in a court sitting in camera would amount to a contempt of court. It would also have to be shown that the publication threatened the administration of justice either in that case or possible future cases. He did not appear to treat this as an instance of a trivial breach. For our part, we find it difficult to envisage the circumstances in which a breach of an order, which was also a crime, would not constitute the actus reus of contempt. This point does not assist Parker-Stokes, since his breach of the CJA 1925 and of the prohibitory orders did threaten the administration of justice for the many reasons that we have given. That is not what Lord Edmund-Davies was addressing.

The principal issue of law debated before us related to the mens rea required for a common law criminal contempt of court. On the facts, the issue made no difference as, even on the arguments advanced of behalf of Parker-Stokes, the requisite mens rea without any doubt was established.

Mr Watson submitted that the person who deliberately takes an illegal photograph in court, and the person who deliberately disseminates it, thereby shows the intention to impede the due administration of justice: the question of whether he intended to create a real risk of prejudice is not distinguishable from the question of whether he intended to take the illegal photograph. For these purposes he relied on Vincent D, Ivanov and Robertson and Gough to which we have referred above, all of which treat specific intent as not relevant to the forms of contempt in this case. The specific nature of these risks may not be appreciated or intended by the person taking the photograph, but disruption to proceedings may occur regardless of any intent to bring that about. The conduct however was inherently, obviously and foreseeably, prejudicial to the administration of justice, so that, if Mr Willmott was right in saying that specific intent was required, the necessary intent can be inferred.

Mr Willmott submitted that the forms of contempt here required specific intent to impede or prejudice the administration of justice, and that there was no evidence to contradict what Parker–Stokes had said in interview and in his affidavit. Vincent D and Robertson and Gough were not consistent with other cases in which the mens rea for contempt had been considered. Even if there were a distinction between contempt by publication and other forms of contempt, such as contempt in the face of the court, the contempts alleged here by taking and publishing photographs were close to publication contempt, and required specific intent. Although Arlidge Eady and Smith on Contempt suggested that certain contempts might require only a deliberate act, that is a basic intent, the judicial trend was moving away from that.

We were referred to a number of cases where the contempt involved publication, in addition to the cases to which we have referred above, when considering the actus reus of the type of contempt here in issue. Attorney General v Newspaper Publishing Plc [1988] Ch 333, [1987] 3 WLR 942 (the “Spycatcher” case) was concerned with whether a contempt had been committed by the publication by three newspapers of extracts from a book, in respect of which injunctions to prevent publication had been granted against two other newspapers. Sir John Donaldson MR made the point that contempt of court was not really concerned with the dignity of the court or the personal dignity of the judge; it was concerned with protecting the administration of justice from interference and preventing the course of justice being impeded or perverted. It was not so much the breach of court orders which was the basis of contempt proceedings as the Attorney General usually brought, but the interference with the administration of justice. The complaint in that case was not that the newspapers had breached or assisted in the breach of the orders made against the two other newspapers, but that the conduct complained of was intended or calculated to impede, obstruct or prejudice the administration of justice; p362H.

The Court of Appeal sought specific submissions on the criminal intent necessary for contempt “by impeding or prejudicing the administration of justice,” where, as here, the strict liability rule did not apply, by virtue of s.2 of the Contempt of Court Act 1981 (the 1981 Act). The strict liability rule meant that an act constituted a contempt “regardless of intent to” interfere with the course of justice. The issue was whether the required intent was general or specific. Sir John said, p374H, that he was quite satisfied that the express saving in s.6 of the 1981 Act from the restrictions on the strict liability rule of conduct of acts “intended to impede or prejudice the administration of justice”, was for conduct where there was a specific intent to impede or prejudice the administration of justice. He then said that the intent to impede or prejudice the administration of justice “need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire”.

Lloyd LJ, at page 381E, rejected the possibility that the relevant intent was satisfied simply by an intention to do the act, that is to say, that the act was deliberate; an intention to impede or prejudice the course of justice was required; it was not an offence of what could be termed basic intent. He also rejected the contention that recklessness as to whether the course of justice was impeded sufficed, notwithstanding the difficulties which that view would create. That was because, first, ss.1 and 2 of the 1981 Act, despite the language of s.6 that those provisions were not to affect the existing law on intent, intended to shift the balance of the public interest protected by the law away from the protection of the administration of justice and in favour of freedom of expression. Second, “intent” in the phrase “regardless of intent” did not cover recklessness. Balcombe LJ agreed with both on the question of mens rea.

In Attorney General v Sport Newspapers Ltd [1991] 1 WLR 1194, the publication of the previous convictions of a person, whom the police sought help in tracing in connection with a child murder, was held not to be a contempt of court. The strict liability rule did not apply; the issue was whether there could be liability for contempt when proceedings had not begun but were or may have been imminent. In the course of his judgment, Bingham LJ expressed the view that the purpose of the saving provision in s.6(c) of the 1981 Act was to preserve the power to commit a publisher for an intentionally prejudicial contempt when proceedings were imminent.

Other cases have referred to the mens rea of contempt as the intention to impede or create a real risk of prejudicing the administration of justice: for example R v Schot and Barclay [1997] 2 Cr App R 383, p.398C, Rose LJ, a case in which two jurors refused to return verdicts; and in Attorney General v Davey and Beard [2013] EWHC 2317 (Admin), PQBD and Sweeney J, it was treated as settled law that an intention to impede the course of justice was an element which had to be proved (see paragraphs [2]-[3]). Those two cases involved a juror posting his views about a case he was trying on Facebook, and another doing internet research.

These last two cases, as well as the “Spycatcher” case, were referred to in the judgment of the First Section of the Strasbourg Court in Dallas v UK (App 38395/12) given on 11 February 2016, which was strongly relied on by Mr Willmott. The basis of the application to the Strasbourg Court was that there had been a violation of Article 7 of the Convention as the law relating to intent had been retrospectively reformulated by the Divisional Court.

The Divisional Court (Lord Judge CJ, Hallett LJ, Openshaw J) (sub nomine Attorney General v Dallas [2012] EWHC 156 (Admin), [2012] 1 WLR 991) found that a juror was in contempt of court because she had deliberately disobeyed the judge’s instructions not to conduct internet research. Prior to the decision of the Divisional Court in Dallas there had been some debate about whether deliberate disobedience to the direction was sufficient, or whether more was required to prove the necessary intent; that was reflected in the written submissions before the court heard the application. During the hearing an agreed position on the law emerged, namely that it was a contempt of court in the context of jury misconduct within the jury room “for a juror deliberately to disobey the direction of the judge and [thereby] create a [real] risk of prejudice to the due administration of justice. What that removes is a specific intent in relation to the creation of the risk. The intent is directed at the deliberate disobedience.” [See paragraphs 32-34 of the judgment of the Strasbourg Court.] The Divisional Court held at paragraphs 38-39:

Ms Dallas’ argument before the Supreme Court (which refused leave to appeal) and then before the Strasbourg Court was that the Divisional Court had reformulated the test for contempt in a way which was inconsistent with the common law; (see [41]-[42] of the Strasbourg Court). “Deliberate disobedience” to an order had supplanted the requirement for a specific intent to impede or to create a risk of prejudicing the due administration of justice, (see [61] of the Strasbourg Court). Article 7 was allegedly breached by the retrospective operation of a change in the law by the Divisional Court.

The Strasbourg Court cited, as part of its discussion of what the law of contempt actually was, what was said by the Master of the Rolls in the “Spycatcher” case about how intent could be proved, omitting the last sentence from the passage cited at paragraph 48 above.

At [66], the Strasbourg Court noted the UK Government’s position that the Divisional Court had made no new law, and had applied the “well-established mental element required, namely an intent to impede or prejudice the due administration of justice. It had merely reformulated the law to the specific facts of the case.” In view of the fact that Ms Dallas’ breach of the order “was inherently and inevitably prejudicial to the fairness of the proceedings, prejudicial to the administration of justice and contrary to the jury oath or affirmation, in these circumstances, the question as to whether the applicant had intended to prejudice the administration of justice was indistinguishable from the question as to whether she had deliberately disobeyed the order of the court.” The UK Government also observed that “Even if it were possible to formulate an academic argument that there was a distinction between proof of deliberate disobedience of the judicial order and proof of an intent to impede or prejudice the due administration of justice, the application of the former test would not violate Article 7”.

In its judgment, the Strasbourg Court, referring back only to written submissions submitted before the discussion between counsel and the Divisional Court and not to the oral discussion and the agreed position we have set out at paragraph 53 above, said [72] that it had been common ground before the Divisional Court and the Strasbourg Court that common law contempt required an act which created a “real risk” of prejudice to the administration of justice; and second there had to be an intention to create that risk. (The Attorney General’s submission in the written submission [27] was that contempt was committed by “an act or omission which creates a real risk of prejudice to the administration of justice, done with the intent of creating such a risk.” The applicant’s written submission [29] had been that the act had to be done “knowingly” with the specific intent to impede or create a real risk of prejudice to the administration of justice).

The court concluded that the Divisional Court had held that, in the circumstances, the proven deliberate disobedience of the direction also meant that the intent to prejudice the due administration of justice would have been proved; [73]. It continued:

The Strasbourg Court appears to have concluded that a specific intention was required on its understanding of what the common law was. It then held that that is what the Divisional Court had decided.

First we will assume that it is necessary to prove specific intent. On the facts of this case, we are sure that the mens rea was proved on that basis to the criminal standard. It is sufficient mens rea, for the specific intent to impede the course of justice, if the contemnor intends to risk impeding the course of justice by his acts, even if he did not intend the precise manner in which his acts will have that effect.

Mr Willmott submitted that the acts were not ones which would obviously interfere with the course of justice. Subjective foresight was required at the time the acts complained of were done. The photographs created no risk to the administration of justice, but even if they did, there was no basis upon which it could be concluded that a young man with no record of significant educational achievement, doing acts which were not obviously likely to affect the administration of justice, had any intention of creating such a risk. The comments with the postings did not target the victim or his family. Neither taking the photographs nor publishing them could show an intent to interfere with the course of justice unless that accorded with his understanding of the course of justice and what would interfere with it. We reject this submission.

First, we are sure that, although Parker-Stokes did not know of the CJA 1925, he did know that the use of a mobile phone was prohibited in court, and that would include its use for taking and publishing the resulting photographs. Parker-Stokes denied knowing that he was not allowed to take photographs at court, as he was “too worried about Ryan Sheppard to notice any signs”. We reject this evidence as plainly untrue. There were many and clear notices which he would have passed, during his idle time at the Crown Court, telling him what the position was. He was there for some time, and went into two courts. No one noticed him taking the photographs, which suggests that he took them surreptitiously; that was because he knew it was prohibited. He did read enough at court to enable him to go into a different court in the morning where he had seen that a friend was appearing over the video–link. He also managed to capture relevant parts of the signs in the photographs themselves – from which it is obviously to be inferred that he wanted to demonstrate his contempt for the prohibition, his deliberate defiance of it and his disregard for the proper administration of justice. He had experience of court precincts and procedures. He also had convictions for offences of dishonesty. Mr Willmott pointed out that dishonesty was not necessarily to be equated with untruthfulness and his previous convictions did not involve telling lies; however he also has convictions for offences which show a willingness to disregard court orders. Parker-Stokes did not attend to give evidence and to be cross-examined on the basis of his affidavit, and there were many questions which merited being asked. We are entitled to draw the inference that he did not attend because he had no good answer to them: how could he miss the signs? How could he have been so anxious as to miss them all? Did he not see them as he photographed them? How it was nobody noticed him if it were not done surreptitiously and if so why so? What did he think that the purpose of the prohibition was?

Second, we are satisfied that, just as he lied over not knowing of the notices, he lied over the absence of intent to impede the course of justice. He knew that the taking of photographs was prohibited. It follows that he must have realised that it was equally prohibited to publish prohibited photographs. He must have realised that the prohibition served the due administration of justice, even if he may not have known precisely how. We are sure that he understood well the problems which he risked creating if he were seen taking the photographs. The one of his friend on the video-link would also obviously have interrupted the proceedings. The ones taken during the sentencing hearing, aware as he says he was of the distress which the Facebook postings caused and which he had therefore not intended relatives to see, would have caused obvious distress and disruption as he was well aware, if he had been seen taking them.

We are also satisfied that he intended to impede or to risk impeding the course of justice by the publication of the image on Facebook. That demonstrated that he intended to show to his friends and associates that he had breached the prohibition, and had got away with it. He knew that, as the prohibition served the administration of justice, so its breach would impede it. His deliberate act intended what he knew would happen, putting the course of justice at risk in that or in some future case by showing that he could disobey a court order for his own and his friends’ amusement, and do so by adding his offensive comments supportive of a recently sentenced murderer. The comments which he posted on the Facebook entry are relevant to what intent we infer he had. He may not have intended that the relatives or the police or courts should see it. But he intended that his breach of the prohibition should be seen by others, among whom would be the criminal youth of his area. That is damaging to the course of justice in other cases as people realise that a protection for them can be breached, or court orders disobeyed for their own purposes.

Although our conclusion on these matters puts the guilt of Parker-Stokes beyond doubt, on the assumption that we accept Mr Willmott’s on the required intent, we will also express our view on whether specific intent is in fact required as we have heard full argument. We do so even though we consider that the lack of specific intent will rarely arise in practice, given the inferences that can generally be drawn.

The circumstances in which contempts of court arise are too varied, in our judgment, for one mens rea to be applicable to all forms of contempt. Nor is that the law. We are not concerned with contempt in publication cases, where there is no court order prohibiting publication, and what we say does not apply to it. Nor are we concerned with the sort of order or act involved in the Spycatcher or Leveller Magazine cases. Nor may all acts be readily pigeonholed in to one broad and general category of contempt or another. But we are concerned with acts which fall into the broad category of contempt in the face of the court or contempts closely related to such contempt.

The general description of the nature of contempt in Robertson and Gough, at paragraph [29] of its decision, is a good starting point: “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”. The purpose of contempt proceedings is “effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented”; Salmon LJ in Morris v Crown Office [1970] 2 QB 114, 129, cited by the Law Commission in consultation paper 209 “Contempt of Court” at paragraph 5.8. A judge must be able to control proceedings so that they do not get out of order. Contempt in the face of the court, suggested the Law Commission at paragraph 5.3, borrowing from paragraph 10.2 of Arlidge, Eady and Smith on Contempt concerns “some form of misconduct in the course of proceedings, either within the court itself or, at least, directly connected with what is happening in court”. Such contempt need not be witnessed by the judge, and the concept of the face of the court is interpreted broadly; the photograph taken in the canteen in Vincent D is an example.

Contempt in the face of the court may require speedy action, whether by removing or detaining a person or lawful warning that that may happen if an act is repeated. If a person is seen taking photographs, the court has to have the power to seize his phone, for the images to be checked and if necessary deleted, for any onward transmission to be prevented, and for the person to be removed from court to the cells for inquiries to be made, followed by any punishment later that day. In the overwhelming majority of cases, it will no doubt be readily inferred that the person deliberately taking photographs intended to interfere with the due administration of justice.

However there may be rare cases where that is not the inference; in such cases it should be no bar to those steps for the person taking the photographs deliberately to say that he was unaware of the CJA 1925, or that he had not read or understood the prohibitory notices, for example if he were illiterate or foreign, or that he had no intention of interfering with the administration of justice, but had tried to take his photographs unobtrusively, just wanting a personal souvenir. It is therefore necessary to decide whether a specific intent is required. In our view, it is not. It is sufficient mens rea that the acts must be deliberate and in breach of the criminal law or a court order of which the person knows.

No specific intent is required beyond that. The substance of this part of the common law is to enable courts to prevent and punish interference with the administration of justice by acts done in the face of the court. The intent required cannot depend on the foresight, knowledge or understanding which the ignorant or foolish might have of the ways in which his acts risk or actually do interfere with the administration of justice. The ignorant and foolish, who are unaware of the law or who read prohibitory notices but do not understand their purpose, and do not realise the risks which their acts may create for the trial or other court process, and who may be right when they say that the risk or the actual harm was not what they ever intended, could not be dealt with at all for contempt in the face of the court. Yet they may cause the most serious harm. A defence that the contemnor is not guilty because he did not realise what could happen, and intended no interference, would put the court proceedings at greater risk the more ill-informed the contemnor was prepared to say he was, or actually was. The power of the court to react swiftly to acts of this sort, which risk interference with the administration of justice, cannot be dependent on any further specific intent to interfere with the course of justice, without creating a serious risk of neutering the court in the exercise of its powers when it may need them the most.

The fact that the contempt may not be noticed at the time and may be dealt with by an application for committal as here, cannot mean that the same acts must be accompanied by a different intent for the contempt to be proved. The question of what mens rea is required is not dependent on the form in which the contempt proceedings are brought. (There was at one time a suggestion on behalf of the respondents, but rightly not pursued, that the provisions of CPR Part 81 provided some assistance on these issues. But that is misconceived; those procedural provisions do not provide or change the substantive law of contempt.)

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

Where the act which constitutes a contempt in the face of the court, or one closely akin to such a contempt, is not a crime, the deliberate breach of a court order of which he has notice will be sufficient. It is not necessary that the person additionally intended by his breach to interfere with the administration of justice, though for the reasons we have set out and which were considered in Dallas, it will generally readily be inferred that such an intention is established. It does not matter in principle whether the order is specific, as in a judge’s direction to a jury on internet searches, or general, as in the public notices in court buildings. The latter are there, either reflecting the criminal law, or, where not, expressing what every judge requires and relies on to let the public and participants know what is required for the administration of justice. Where a person knows of the court order and deliberately breaches it, he knows that the prohibition which he breaches was put in place to prevent interference with the course of justice. Therefore, the questions whether the breach was knowing and deliberate and whether it was intended to interfere with the course of justice amount to the same question, even if the person may not have realised or understood quite how the administration of justice could be interfered with. He would know that it would be put at risk.

The Facebook postings may not be contempt in the face of the court, as we have observed at paragraph 31 above. There were obviously no signs saying that illegally taken photographs could not be posted on the internet or published in some other way. However, even if such publication is not a contempt in the face of the court, the required mens rea should be no different from that applicable to contempt in the face of the court. First, the deliberate publication of illegally taken photographs is a crime under the CJA 1925. Second, the taking of photographs does involve a contempt in the face of the court, and their publication is directly connected to the purpose and effect of that contempt; it may take place almost simultaneously. Third, the prohibition in notices on the taking of photographs and the use of mobile phones must carry with it by necessary implication the prohibition on the publication of what their use achieves. The publication of what are known to be illegally taken photographs must be regarded as a breach of the same prohibitions. It is also a form of contempt which, in our judgment, can be dealt with by the summary procedure, if the circumstances are apt for it.

The authorities support this approach to mens rea for this sort of contempt. We do not need to repeat what is derived from Vincent D, Ivanov and Robertson and Gough; they plainly support it. We gain no assistance from authorities which do not deal with this sort of situation. The real issue is whether Dallas shows that to be wrong, as Mr Willmott contended. Mr Watson submitted that Dallas was not a case dealing with contempt in the face of the court, for which the tests were different.

Dallas did not consider the mens rea required for deliberate acts which were not in breach of some order of which the contemnor knew, but which were in breach of the criminal law. Whether ignorance of the criminal law by the contemnor is described as providing no defence, or whether there is a presumption that a person knows the criminal law, the contemnor is taken to know of the existence of the criminal law, and so a deliberate act, which is an offence, is treated as a knowing breach of the equivalent of an order. If punishable as a contempt in the face of the court on the basis of a deliberate act, it is punishable also on an application to commit on the basis of a deliberate act.

The Divisional Court did decide in Dallas, in our judgment, that a knowing and deliberate breach of a court order sufficed to provide the mens rea of contempt. The oral exchanges, noted but not relied on by the Strasbourg Court, support what is the clear meaning of [38] and [39] of the Divisional Court judgment in Dallas. We are satisfied that Dallas in the Divisional Court is wholly consistent with the conclusion to which we have come. The Strasbourg Court did not regard it as changing the law. This explains why Davey and Beard, above, in its very brief introduction to the law, treated Dallas in the Divisional Court as no different from cases which had referred to the need for a specific intent.

The Strasbourg Court was right that there is no difference in that sort of case between the answers to the questions of whether there was an intent to interfere with the course of justice, and whether the breach of the order was deliberate and knowing. The need for some specific intent over and above the deliberate and knowing breach of an order, made for the protection of the administration of justice, is not required. It is proven in reality by the deliberate and knowing breach itself.

In Schot and Barclay, to which we have referred at paragraph 51 above, it was accepted that mens rea was required but it suggests, p398 C-E, that evidence that someone did not want to disrupt proceedings by refusing to reach a verdict, had provided evidence that they lacked the relevant intent, and it was also for question whether they had foreseen that the judge would discharge the entire jury, rather than just the two jurors, so enabling the trial to continue. The real issues in that case revolved around the procedure adopted by the judge, and the exposure of jury deliberations. The debate about mens rea would now have to be read in the light of the several later decisions, and ones more applicable to the sort of acts of contempt here. Spycatcher shows that intent and desire are different; what the juror wanted is not the issue. It is interference which must be intended, and the precise course of disruption which followed does not have to be intended or foreseen. The risk of interference appears not to have been considered at all. This decision is not now, in our judgment, of any real assistance in ascertaining the mens rea for contempt.

If a deliberate act which breaches the criminal law suffices, as in our judgment it does, then Parker-Stokes would have been guilty of contempt of court by the deliberate taking of the photographs and by the deliberate Facebook posting of one of them, even absent the specific intent we have found as established to the criminal standard of proof.

Parker-Stokes is guilty of contempt of court in taking the photograph of the video-link, and more seriously in taking the photographs during Sheppard’s sentencing hearing and then publishing one on Facebook. The gravity of that contempt is evident from the findings we have made. Cox by his own admission is guilty of contempt in taking the photograph of HHJ Picton in court and publishing it on Facebook, and in publishing on his own Facebook page the illegally taken image of Sheppard which Parker-Stokes had published on Sheppard’s Facebook page.

A hearing will be arranged for sentence.