Barristerblogger had a day in Town on Wednesday; coinciding with both the Cliff Richard judgment and the Tommy Robinson appeal.
A New Attorney-General
While the Cliff Richard judgment was being delivered, a little down the corridor in the Lord Chief Justice’s court a new Attorney-General was being sworn-in before a bench full of colourfully be-robed (and in the LCJ’s case be-chained) judges in their splendidly absurd full-bottomed wigs. Down in counsels’ row the new Attorney-General too was full-bottomed. The court clerk even had an extraordinary black tricorn contraption which she seemed to have some difficulty balancing on her own full-bottom wig.
Who, though, was that ordinary-looking man squeezed in at the end of the judges’ bench? Nobody seemed to know, but eventually it turned out he was David Gauke, the Lord High Chancellor of England. He had acquired a yellow and black robe from somewhere, but no wig, so amongst all the bigwigs he looked like a man in a lounge suit at a white tie dinner. He gave a short but sensible speech, leavened with the sort of bland humour that is expected on these occasions.
Pushing and shoving for the best seats
Whilst this solemn ceremony was going on, there was a great deal of polite pushing and shoving in the stalls as members of the public, Barristerblogger included, manoeuvred to grab the better seats in the house. For a time, it was standing room only and as the encomiums to the new Attorney-General continued to flow from the bench, who should slip to the front of the queue, face down in his twitter notifications, but Tommy Robinson’s greatest supporter, PR Svengali and chief fund-raiser, flown over from Canada at Tommy’s special request, none other than Rebel Media’s Ezra Levant.
Fortunately the pushing and shoving proved to be unnecessary. The Attorney-General was safely sworn in. The bigwigs and the no-wig filed off the bench and the Attorney-General’s entourage melted away to be replaced by Tommy Robinson’s supporters and various journalists. I found a seat just in front of a man with a chestful of glittering medals and we sat and waited for the main event. Apparently over on the other side of the courtroom (huge by the standards of most courts) there was some sort of disturbance with supporters being ushered out, but if so it was a fairly genteel ejection which I didn’t notice.
The ceremony of the video link
Before long a video link was established to HMP Onley, and the man himself became visible, although not immediately audible. The clerk in the full-bottomed wig and tricorn had been replaced by soemone more conventionally dressed, although by way of compensation for the lack of a tricorn he did have a beautiful French accent. He perfected the audio link and exchanged a little badinage with the appellant. As far as one could see Robinson looked well, and he seemed cheerful and relaxed as the usual unsuccessful efforts were made to improve the quality of the video-link.
The lawyers appear
“special interest in Appellate work, bringing unrivalled analytical skills, commitment, dedication and thoroughness to the prospect of finding potential new avenues of successful appeal. Fearless in his approach, relentless in pursuit of the desired result.”
There had previously been some confusion over when the appeal was going to be heard. Originally. According to Rebel Media’s money-raising page it had originally been listed for 10th July. Then, on 3rd July it was apparently given another date. It had been a cue for Rebel Media, and especially Ezra Levant, to go into hyper-ventilation mode:
Tommy’s legal appeal, scheduled for next week in London’s Royal Courts of Justice, has been cancelled.
The excuse? The government’s lawyers say they’re not ready.
That’s a damnable lie, of course.
Tommy has been languishing in prison since May 25th. The Crown Prosecution Service — what could be called the UK’s largest law firm — has had a month and a half to prepare. They have every legal expert at their disposal. They have unlimited resources.
But they simply want Tommy to rot in jail longer.”
Everyone in court was now waiting for the appearance of the CPS team. After telling lies to ensure that Tommy rots in jail for as long as possible, we could only speculate as to what their next trick would be.
The Amicus Appears
Eventually a single QC – no junior counsel – came into court carrying a small ring-binder and sat on the Respondent’s side of the court. It seemed odd that the “UK’s largest law firm” had decided not to accompany their silk to court, or even to instruct a junior. Perhaps they were running scared of Tommy’s army, preferring to manipulate the result of the appeal by exerting improper influence on the list office. Would they pull a last minute trick by pretending not to be ready?
However, it turned out that the single barrister was not actually anything to do with the CPS at all. In fact the CPS had had nothing to do with the appeal. Lewis Mably QC, was what used to be called an amicus curiae and is now known as an “advocate to the court.” He was appointed, he told me, but not instructed, by the Attorney-General, not the CPS. His role was not to support or oppose the appeal but to assist the court with the law from a position of complete independence. According to the Legal 500 he is “fantastically bright” and “completely unpretentious,” and that seems a fair assessment.
The fact that the CPS weren’t actually opposing the appeal, in fact weren’t actually involved in any way, seems rather to deflate Mr Levant’s assertion that they had told damanable lies to ensure that Tommy would rot longer in jail.
The Judges reappear
The judges themselves filed back into court. Gone were the colourful robes and full-bottomed wigs. All three – Burnett LCJ, Mr Justice Turner J & Mrs Justice McGowan – were now dressed identically in plain black, and wearing just their short “working” wigs.
An irrelevant digression
The Lord Chief Justice was in genial mood. The last time I saw him he was the second junior at the Kings Cross inquiry where I had been another junior barrister. I was reminded of the Eighteenth century poet William Cowper who, while reading for the bar, shared lodgings with another student called Edward Thurlow. One day the pair were drinking tea in Bloomsbury (Thurlow normally preferred a coffee shop called Nando’s in Fleet Street). Cowper, who recognised his limitations as a lawyer, said to Thurlow:
"Thurlow, I am nobody, and shall always be nobody, and you will be Lord Chancellor. You shall provide for me when you are ! "
Thurlow smiled and replied:
“I surely will.”
The prediction came partly true. Cowper was a hopeless barrister, bored by the law and terrified of public speaking. As a result he never received a single brief. He suffered a mental collapse and had to recover in an asylum. He did eventually become a popular (though never wealthy) poet but for many years he lived in obscurity in “the least reputable quarter” of the Buckinghamshire town of Olney. At the time it was a miserable rural backwater where he had to put up with the “screaming of children … engaged in a sport which they called hockey, but which consisted essentially in bespattering each other and the windows of the houses with mud, … putrid exhalations [and] the fishy fumes of marsh miasma….” Cowper consoled himself with his pet hares which he fed on thistles and sliced carrots.
Thurlow, meanwhile, prospered at the bar, survived a duel and in due course did indeed become Lord Chancellor, just as Cowper had predicted. He was a nasty piece of work, as anyone might have guessed from the fact that his favourite boyhood sport was “cock-throwing” a singularly unpleasant amusement in which a cock is tied to a post and participants then take turns throwing sticks at it until it dies.
Unsurprisingly he never honoured his promise to his former friend, and appears to have been “as unamiable in his private life as he was rash, domineering and headstrong in public affairs.” It is not known whether he carried on cock-throwing after his elevation to the woolsack.
The Appeal Begins
Where was I?
The current Lord Chief Justice could hardly be less like Thurlow. He is neither rash nor domineering nor headstrong.
He politely reminded the public gallery of the reporting restrictions that remain in place and of the need for decorum in court. On the other hand reporting of the appeal proceedings was fine, and he went out of his way to encourage tweeting.
Most of the rest of the morning was taken up with Mr Dein’s submissions.
Everything is being appealed
The biggest surprise was that Robinson – contrary to every indication given by Rebel Media – was indeed challenging the actual findings of contempt; and not just Leeds in May 2018 but also Canterbury in May 2017.
Appeals normally need to be lodged within 28 days, although the court does have a discretion to extend the time limit, even after it has expired.
Robinson was “out of time” with both appeals: as the Lord Chief Justice observed, one year and twenty three days late with the Canterbury appeal and 20 days late with the Leeds appeal. Dein set out a timetable to explain his involvement, to explain why the court should extend the time limits. He seemed on much stronger ground with the Leeds case than the Canterbury one.
His explanation for the delay, and it seemed very plausible, was that he had struggled to get all the information and instructions he needed to draft the grounds of appeal. There had been difficulties getting a transcript and arranging conferences, and the conference he did have in Onley prison had only lasted 55 minutes (although how essential it was to have a longer conference may be open to question; had Mr Robinson been on legal aid it is doubtful that the junior barrister assigned to his case would have been paid for any conference at all).
Amidst a flurry of dates it turned out that the Grounds of Appeal had not actually been submitted until 12th July.
This revelation puts something of a gloss on Rebel Media’s assertion that the the Crown Prosecution Service had had “one and a half months to prepare for the appeal,” before asking for it to be adjourned on 3rd July. Not only were the CPS not involved at all; even if they had been they could not possibly have prepared for an appeal without knowing what his grounds were. The gloss is that what Rebel Media said was untrue.
In fact, for Robinson to have had his appeal heard less than a week after the filing of out of time grounds of appeal is astonishingly quick. Most appellants have to wait months.
“A conglomeration of procedural deficiencies”
Having got the preliminary point about the delay out of the way, Mr Dein then got stuck in to the meat of his argument. He made it clear that he was not disputing that at least some of the material on Mr Robinson’s live-streamed video was a contempt of court, since it disclosed details about an ongoing trial, in breach of a court order forbidding any such disclosure.
Instead, his main argument was that a “conglomeration of procedural deficiencies” meant the contempt findings should be set aside. Even though Robinson admitted he was in contempt, and even though he obviously was in contempt, the Criminal Procedure Rules had not been properly complied with. The precise nature of the contempt wasn’t spelt out in Leeds and there was no compelling need for the case to be dealt with so quickly. He may have been guilty, but both his common law rights and those under Article 6 of the European Convention on Human Rights were breached.
For those interested in the technicalities they are these:
The Criminal Procedure Rules (R.48.5.2) require that where contempt is alleged the judge should:
(a) explain, in terms the respondent can understand (with help, if necessary)--
(i) the conduct that is in question,
(ii) that the court can impose imprisonment, or a fine, or both, for such conduct,
(iii) (where relevant) that the court has power to order the respondent’s immediate temporary detention, if in the court’s opinion that is required,
(iv) that the respondent may explain the conduct,
(v) that the respondent may apologise, if he or she so wishes, and that this may persuade the court to take no further action, and
(vi) that the respondent may take legal advice; and
(b) allow the respondent a reasonable opportunity to reflect, take advice, explain and, if he or she so wishes, apologise.
The judge then has a choice: if necessary he or she can “enquire into the conduct there and then” (in the jargon “summarily”); or postpone the enquiry until some later date, when a more formal procedure is adopted, involving the service of a written statement setting out in detail what the contempt is said to be.
In Robinson’s case, argued Dein, even though he had the benefit of legal advice, not all these provisions were observed; for example he wasn’t told precisely why his conduct was contemptuous. Furthermore, he said, there was no necessity for the matter to be dealt with there and then. It should have been adjourned to a later date.
Mrs Justice McGowan suggested that there might indeed have been a need to deal with Robinson summarily; the jury deliberations in the trial about which Robinson was commentating, had been suspended while the judge tried to sort out both how to deal with Robinson, as well as any possible ramifications that his behaviour might have for the trial itself.
Dein relied principally on the case of West  EWCA Crim 1480 in which a barrister (who may be known to some readers as the popular tweeter @ianswest) was fined £500 for contempt by a Crown Court judge after ignoring the judge’s – rather tiresome – request that he return to court at 14.00. The order was quashed because, even though Mr West had very honourably declined to take the point even when it was suggested to him, the Court of Appeal found that there had not been strict provision with the rules. As Leveson LJ put it:
“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.”
The Lord Chief Justice pointed out that West had been decided without considering an earlier case also mentioned by Dein, Nicholls v. Nicholls  1 WLR 314], where the Court of Appeal had said:
As long as the contemnor had a fair trial and the order has been made on valid grounds the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside except insofar as the interests of justice require this to be done.
[The] interests of justice will not require an order to be set aside where there is no prejudice caused as a result of errors in the application to commit or in the order to commit. When necessary the order can be amended.
Although the Court of Appeal is normally required to follow its own precedents, there are exceptions: sometimes there are conflicting precedents and the Court has to decide which to follow; or a seemingly authoritative case may be undermined if it was itself decided without consideration of some earlier relevant authority.
A criminal or a civil prisoner?
Dein then raised a highly technical point: the wording of the order committing Robinson to prison described him as a convicted prisoner (in shorthand a “criminal prisoner”) rather than a person committed to prison for contempt (a “civil prisoner”). In practice a civil prisoner is treated rather like a remand prisoner. The judges seemed to think that that issue could be “tidied up” without quashing the order.
Dein was pressed on the Canterbury contempt, and in answer to a question from the Lord Chief Justice conceded that “in broad terms what happened in Canterbury was fair.”
Appeal against sentence
He then moved on to the appeal against the 13 month sentence (the suspended 3 months from Canterbury plus 10 months from Leeds) which he argued was “manifestly excessive.” He deftly avoided direct criticism of Matthew Harding, the experienced barrister Robinson was given in Leeds, by saying that his failure to make some of the points he was about to make was because the Judge had rushed the case.
An alternative explanation might be that some of the points he was about to make were not very good ones which Mr Harding sensibly left well alone.
First, he said, Robinson had shown the “maximum co-operation” by offering to have his live-stream taken down immediately. This has perhaps not made much difference in practice, since the video received huge publicity at the time and has been widely copied and available online since.
Secondly, he had not “intended to breach the order,” his contempt arose out of “naivete rather than any determined attempt to breach the reporting restriction.”
Thirdly, he was attempting to “operate as a journalist.” In support of this submission he pointed to the previously unpublicised fact that in June 2017 not only Robinson but other members of Rebel Media, had attended a training session in media law run by the law firm Kingsley Napley. It doesn’t seem to have been very effective.
Some unconvincing submissions
Like many good advocates, Dein left his worst points till last.
He relied on the fact that Mr Robinson had joined the Quilliam Foundation, an “anti-extremist think tank.” That indeed was half true. What he did not go on to say was that their relationship had since soured, and Quilliam now regards him as an unpleasant extremist. According to Quilliam, in May 2017:
“Quilliam was victim to extremist Tommy Robinson and alt-right Rebel media’s George Llewelyn-John trespassing in our office using aggressive and bullying behaviour today, after they barged in to our London address, verbally harassing and physically intimidating our staff.
Tommy proceeded to abuse and bully junior staff, failing to leave the premises when asked, eventually being escorted off-site by the police. Having arrived with a cameraman from the alt-right Rebel Media, George Llewelyn-John, they hounded Quilliam staff and repeatedly refused to have a reasoned discussion.
… we think it unfortunate that, following our efforts to engage with Tommy Robinson and help him move away from extremism, he seems to have regressed.”
Mr Dein dealt with the conditions under which Robinson was being held in prison. Quite how much these were down to Robinson’s personal choice was not entirely clear. However, the conditions were, said Mr Dein, “unacceptable.” He was, in effect, being kept in solitary confinement with only 30 minutes yard time a day and unable to work. There was no “rehabilitative aspect” to his sentence. Apparently Robinson cannot even go to church, although he acknowledged that he was not a particularly religious man. Mrs Justice McGowan did not seem impressed:
“These are complaints for the prison authorities.”
He also complained that when Robinson was last imprisoned, in 2013, this had had a “significant psychological impact” on him. He had been unable to sleep and had had “butterflies in his stomach.” The Lord Chief Justice gave no indication that he was particularly bovvered by that particular submission.
What troubled the LCJ
What did seem to trouble him was that in passing sentence (the transcript has not been made public) the Leeds judge had referred to matters which were not breaches of the reporting restriction, the implication being that these were not necessarily contempts of court.
The Amicus Replies
Mr Mably QC accepted that that might have been a problem, while suggesting, perhaps a little hesitantly, that matters which were not themselves contempts of court could still be regarded as “aggravating features.”
The fundamental point that he made, in a much shorter address, was that it must have been perfectly obvious to everyone in court what the contempt was – the breach of the reporting restrictions – and that even if some aspects of the Criminal Procedure Rules were not properly applied, no injustice had in fact occurred.
He made no submissions at all on the length of the sentence. Perhaps he took the view that as an independent advocate his job was to deal with the law rather than with the length of sentence.
The Lord Chief Justice indicated that the Court would give judgment by the end of this month, if at all possible.
No Bail Application
There was no application for bail, another surprise since for weeks Rebel Media had been promising that there would be.
Nigel Pascoe QC – whom I have been proud to call a colleague for more years than I care to remember, which is still only a fraction of the time that he has been at the height of his profession – adopts Norman Birkett’s definition of advocacy:
“Harnessing your personality in support of a cause.”
His advice to young advocates is the not uncommon advice given to nervous interview candidates: “be yourself.”
“If you try to be someone else,” says Pascoe, “it will sound phoney. It is phoney.”
I am not so sure. Being yourself works very well if you have the personality of Pascoe: warm, open and sympathetic to almost everyone. It is hard to imagine that he could have any enemies.
Other advocates, I fear, have done very well from being phonies. George Carman, acknowledged in Pascoe’s book as one of the greatest advocates of modern times was – if we are to believe the account of his son Dominic – an insecure, frequently drunk, violent, sexually inadequate womaniser. His was a personality best kept concealed.
Like many very good people, Pascoe may occasionally have difficulty in detecting or believing anything but the best about others. I remember attending a court centre intermittently over the course of many months where he was involved in a seemingly interminable case, the details of which are (fortunately) of no consequence. One of his opponents was particularly gritty and determined, and was given to somewhat dubious techniques; the sort who hands you a 20 page skeleton argument 15 minutes before the court is due to sit, and then does the same thing the next day. And the next. And then two skeleton arguments the next day. During the first two or three weeks Pascoe shrugged off these flaws as minor peccadilloes and could not have been more effusive in his praise for his opponent:
“Brilliant legal mind … superb cross-examiner … future Lord Chief Justice.”
After 6 weeks he had been worn down:
“Very determined … rather stubborn …a little inclined to miss the wood for the trees.”
Finally, after the trial had all but ground to a halt under the weight of his opponent’s abuse of process arguments, a rare flash of impatience suddenly appeared:
“That [name and very mild expletive deleted], can be rather tiresome at times.”
Other advocates would have been swearing and cursing by the second day, but that is emphatically not Pascoe’s style. As a result, he is one of those rare people who is liked by everyone he meets, and that, I am quite sure, includes jurors and judges.
Unless you share such a personality simply being yourself may not take you very far, but don’t worry because the rest of this slim volume is full of practical hints that will.
He is good on organising your papers, a dull task indeed, but one that almost all exceptional advocates excel at. Nothing is more important in preparing a case than than being able to find the vital document, and nothing is more irritating in court than to be unable to do so. Rightly, he makes the often overlooked point that a chronology is an essential part of any serious case preparation, and he sets out a simple and easy to understand system that any young advocate would be well advised to follow. Pascoe was an early enthusiast for voice activated software, and his enthusiasm has not dimmed:
“It is astonishingly useful for advocates and I do not understand today, when it really works, why more of them do not use it.”
Important skill though it is, the young advocate needs to know a lot more than organisation of the ring-binder, and Pascoe’s book helps, though whether every piece of advice always works if you don’t share his sunny personality may be arguable.
Do not, he advises, suggest to complainants in sex cases, “You’re lying about that.” Instead advocates should politely ask the “more courteous and effective ‘I do suggest that on that point you are not right / correct.’” I’m not so sure this is always sound advice: courtesy has its place in advocacy, but so, on occasion, does bluntness. Asked that question by the transparently decent Pascoe perhaps a few witnesses will say “Now you’ve put it as politely as that, you may well have a point, I’m really not at all sure it is correct.” The bigger gain, though, is that a courteous approach is less likely to lose the sympathy of the jury.
Sometimes, though, an over-polite approach is disastrous: I can think of at least one case in which a scrupulously polite cross-examiner framed all her important questions to the complainant in a rape case in this courteous style, studiously avoiding use of the word “lie,” even though lying was the only plausible reason why her account could be untrue. Maybe Pascoe could have carried it off, but with this advocate courtesy felt like cowardice; like a diver on a rock, going to the edge but never quite plucking up the courage to jump into the heaving water below. Worse still, it created a dilemma for her client when he came to give evidence – if he chose to be as polite as his counsel, why was even he afraid to accuse the complainant of lying? If he did accuse her of lying, why then had his barrister not done so?
In a short and largely practical book, Pascoe does not go into great detail about the ethics of advocacy. Integrity, he rightly says, should be at the top of the list of the qualities of an advocate, something that members of the public sometimes fail to grasp, given that of necessity a barrister spends much of his or her working life trying to persuade people that things that have happened haven’t, or vice versa. Pascoe emphasises that integrity is a practical as well as an ethical virtue: in order to persuade an advocate must be trusted.
Of course, says Pascoe,
“there is a clear distinction between glossing over the more difficult aspects of your submissions and misleading a court. For example, in a plea in mitigation, it is not your duty to put forward every daft suggestion of your client. Many a sex offender actually believes it is important to tell you that the child led him on assault. It is, of course, utterly wrong, completely irrelevant and counter-productive. That sort of admission against interest can be left in the backsheet and need not see the light of day.”
All well and good; but how about if the same client has told you something along those lines that flatly contradicts what he told to the writer of the pre-sentence report? Does the honest advocate allow the judge to sentence on the basis of the remorseful penitent described in the report, knowing that it is in fact a false picture. Advocacy has a habit of throwing up difficulties of this sort that do not admit of easy, or necessarily comfortable answers.
Indeed, the whole notion of one advocate being better than another – and whatever the ideal may be that often happens – is rather uncomfortable for the concept of justice. Why should a court’s decision depend at all on the quality of the advocates? There are two possible answers. First, to prevent a person from putting forward their case as powerfully as possible would be itself to create an injustice. Secondly, and more fundamentally, the better the advocacy, the more likely it is that the court will arrive at the correct decision; but that is only the case if the advocates themselves are honest and fair and observe the same rules.
Pascoe is known as a jury advocate par excellence, and he is disarmingly – and quite misleadingly – modest about his effectiveness in front of the Court of Appeal. He writes about “the Reading factor,” a sinking feeling that those Grounds of Appeal that looked so unanswerable at Taunton tend to look threadbare by Reading. The key to effectiveness, he advises, is to ruthlessly pare Grounds of Appeal down to the minimum. That is certainly true, as is his equally important, and easier to practise, point that you should always use a large font. Some judges have become remarkably, testy about font size and in recent years rules about fonts have even started to creep into Practice Directions. 12 seems to be the generally accepted minimum, but 14 is easier to read.
Pascoe is also right to warn against the infuriating tendency of some advocates to number their paragraphs 1.1, 1.2 etc (and sometimes with an even more complex system), instead of a simple 1, 2, 3, 4 etc. Advocacy is a difficult art, but it is possible for even a beginner to get that right, and common for the experienced to get it wrong. Simplicity, whether it be in plain numbering or clear unadorned language will get you a great deal further in advocacy than oratorical ornamentation, although (as Pascoe acknowledges) there is occasionally scope for a few judicious linguistic flourishes. But the best advocates are almost always those who somehow make everything seem simple. They make it look easy, even though it isn’t.
Pascoe’s book won’t make advocacy easy, but it will give young advocates plenty of guidance. It demonstrates his own point that brevity can be a virtue: you should be able to finish it in half an hour, including the extract from Julius Caesar in the final few pages (which might have been made even more interesting with Pascoe’s annotations of the rhetorical techniques deployed, as he says, in “unforgettable and glittering form” in Mark Anthony’s famous speech). But the value of a book is not to be measured by its length. Pascoe’s short primer is a classic. At just £5.99 – or £1.99 as an e-book – every aspiring advocate should read it.
The post Nigel Pascoe’s Guide For Young Advocates: Essential reading for all aspiring advocates appeared first on BarristerBlogger.
Spousal support (sometimes referred to as alimony) is intended to compensate the recipient. This article explains why that is, how support is calculated and when it is payable.
According to Tommy Robinson’s family’s “authorised spokesman,” Ezra Levant, the gaoled activist has appealed against his 13 month sentence for contempt of court.
We will have a look at what is actually likely to happen when his case gets to court in a moment, but there may be some readers who have not been following the story closely.
Why is Tommy Robinson in prison?
Since 25th May Mr Robinson, real name Steven Yaxley-Lennon, has been serving a sentence of 13 months imprisonment for contempt of court. The sentence is made up of a 3 month sentence passed for contempt of the Canterbury Crown Court in 2017, originally suspended but now activated, and a 10 month consecutive sentence imposed for a separate contempt of the Leeds Crown Court on 25th May 2018. The Judge who sent him to prison, Geoffery Marson QC, was at the time presiding over a trial involving allegations against a number of defendants, according to Mr Robinson muslims, who are accused of sexual offences. Unfortunately we do not know many more details because reporting restrictions are in place, probably to prevent jurors in another case hearing inadmissible evidence.
Reporting restrictions? What’s that about? If something is said in court surely it can be reported?
Actually, no. Until a verdict is delivered, only things said in court in the presence of the jury can be reported. Legal argument invariably takes place while jurors are relaxing in the comfort of their retiring room (the lucky ones among them may even get to re-read a 2011 Woman’s Realm several times), and it cannot be reported until the trial is over. Very often the argument is about the admissibility of evidence. Obviously if you report arguments about admissibility of evidence then jurors may read about evidence even if it is ruled inadmissible, which is hardly very fair.
I can see the reason for that, but the press isn’t allowed to report any of these trials? How ridiculous is that?
It’s not ridiculous at all. It’s to protect the fairness of the trials. Where there are two trials with an overlap of evidence, defendants or witnesses between them, evidence which is admissible in one trial may be inadmissible in another. Sometimes even the fact that a person has been on trial in the first case is liable to prejudice the jury in the second one. Sometimes there may be more than two linked trials, when the matter becomes still more complicated and unpredictable.
The fundamental principle is that a fair trial requires a defendant to be tried only on legally admissible evidence, and in circumstances where he or she can challenge any evidence in dispute. If jurors are likely to be diverted from their task by reports of what may have happened in another trial, that can make a fair trial impossible.
The principal difference between a fair trial and mob justice is that the former is conducted according to rules, and those rules need to be backed, ultimately, by the possibility of punishment for those who break them.
So did Tommy break the reporting restrictions?
He may have done, but his contempts of court went further than that. He published videos on his You Tube channel in which he made prejudicial comments about ongoing cases before verdicts had been delivered.
What did he actually do wrong?
Let’s look at the Canterbury offence first.
Mr Robinson came to the Crown Court where a trial was going on hoping to film the defendants. As at all courts there were prominent notices warning that filming in the precincts of a court is a criminal offence under S.41 of the Criminal Justice Act 1925. Coming to court is enough of an ordeal without having to worry about an aggressive Tommy Robinson thrusting his mobile phone in your face and demanding that you say something. The judge learnt what he was up to, and directed that the jurors and defendants leave by a separate entrance. He was told to stop, but he carried on filming anyway. Unable to find any defendants to film, he made a glorified selfie of himself, talking to the camera both inside and on the steps outside the court building. He then posted the film on You Tube under the headline:
“Tommy Robinson in Canterbury, exposing Muslim child rapists. Police help them escape.”
His commentary referred to the defendants as “Muslim paedophiles.”
The judge decided that this behaviour was a clear contempt of court. It was:
“… pejorative language which prejudges the case, and it is language and reporting – if reporting indeed is what it is – that could have had the effect of substantially derailing the trial.”
A contempt of court is a common law offence, committed where someone does anything which is “calculated to prejudice a fair trial.” Although the word “calculated” might seem to imply a degree of premeditation, or at least intent to prejudice a trial, in fact no such intent need normally be proved if the conduct in fact creates such a risk: see Solicitor General v Cox and Another (Contempt of Court: Illegal Photography)  EWHC 1241 (QB)  2 Cr. App. R. 15. Furthermore, where a “publication” to the general public is concerned (and placing footage on You Tube would be within the statutory definition of “publication”), the Contempt of Court Act 1981 makes it clear that no further intent need be proved.
Mr Robinson’s intention was immaterial to his guilt, although it was of course relevant to his sentence.
Well, what did Tommy say about it?
Mr Robinson was represented by counsel. He does not appear to have disputed that he was in contempt, but he pleaded ignorance of the law – mitigation, of course, rather than a defence – and through counsel apologised for his behaviour.
Let me guess, he had some rubbish duty solicitor who didn’t know the law?
No, he was represented by two counsel. They were not run of the mill hacks like Barristerblogger, and one of them, Richard Kovalevsky QC, is indisputably one of the country’s top criminal barristers. His citation in The Legal 500 strongly recommends him, for his “strategic treatment of difficult issues and collegiate approach,” as well as his “out-of-the-box thinking” which can be “a game-changer.’
I may be wrong, but Mr Robinson doesn’t really strike me as the sort of man who would be attracted by a collegiate approach, so I would guess it was the out-of-the-box thinking that appealed. In fact, on this occasion Mr Kovalevsky’s thinking seems to have been fairly conventional. He grovelled, pretty effectively, on Mr Robinson’s behalf.
He urged on Her Honour that his client had been a little “naïve.” The judge said she found that “rather difficult to accept that at face value,” but accept it she eventually did. Mr Kovalevsky also suggested – perhaps this was a little more out-of-the-box – that his client might be murdered if he was sent to prison. It seems to have been a possibility that concerned Judge Norton, and it persuaded her to suspend the sentence. He left the court with these words ringing in his ears:
“You should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court.
The sentence was suspended for 18 months.
OK, that was Canterbury, what did he do wrong in Leeds?
Almost a year to the day after getting the suspended sentence in Canterbury Mr Robinson turned up at Leeds Crown Court towards the end of a similar trial. He shouted at defendants as they were going into court, asking if they had their prison bags ready. He commented unfavourably on the defendants’ demeanour after he bated them. He read out a list of charges which he said that the defendants were facing, although it seems he included allegations that were not in fact proceeded with. He called a passer-by a “scumbag.” From time to time he threw in the word “alleged,” although generally with a leer, as though the very notion that a Muslim might be innocent of gang rape was too absurd to be taken seriously.
Yeah, but Tommy’s not a racist is he?
Well, we’re getting a bit distracted here because the question of his racism is rather beside the point. That said, his video does contain the observation “I’m an English man and they’re English girls, they’re women, they’re young girls and they’re in our country and they’re being groomed and raped because of that.”
And yes, since you ask, I know that the English aren’t a race. Nor are muslims.
Isn’t he entitled to his free speech, even if it’s racist?
Normally I would be happy to defend his right to free speech, however unpleasant, but all this was live-streamed on the internet for over an hour, and Mr Robinson encouraged his viewers to share the video far and wide, so that it might be seen by “millions.” His racism – if that is what it was – is neither here nor there. The point is that it was capable of intimidating members of the public, and prejudicing jurors against the defendants.
It is unpleasant, menacing and inflammatory, and more rather than less unsettling because of the cheerful-chappie manner in which it’s delivered; but of course what made it criminal is that Mr Robinson was knowingly carrying it on immediately outside the court building where a serious trial was going on, and encouraging his supporters to share it far and wide. Within hours it had been seen by 250,000 people.
I’ve heard that he was arrested just for breach of the peace, but then charged with contempt of court, something completely different? Isn’t that highly unusual? What the hell’s going on here?
No, it’s not even slightly unusual. The crime for which someone is prosecuted often bears no resemblance to what they were originally arrested for. The Yorkshire Ripper, for example, was originally arrested for having a false numberplate, before being prosecuted for multiple murders.
But Tommy was sentenced just 5 hours after he was arrested? How could that be fair?
He admitted the offence. When an offence is admitted, in English law there isn’t a trial. He had plenty of time to instruct a lawyer and to give him instructions. The procedure the judge followed appears to have been entirely consistent with the Criminal Procedure Rules. All things being equal, especially where the facts are not in dispute, swift justice is better than slow justice.
But he had a useless lawyer, right?
He had Matthew Harding, a Leeds barrister with over 15 years experience at the criminal bar. He is exactly the sort of barrister you would get if you were charged with rape, drug dealing or GBH. He’s not useless at all.
If he’s so good, why didn’t he fight the case then? He could have called witnesses, cross-examined the police and argued Tommy’s right to free speech?
He could have done all those things, and no doubt would have done some of them, if Mr Robinson had instructed him to contest the allegation. But he didn’t. He admitted he was guilty. He could hardly argue about the facts of what he’d done: the evidence was all over You Tube. Even so, he could have argued:
He no doubt expected to get a lighter sentence if he fessed up and said he was sorry. I daresay he was right.
Matthew Harding, mitigating, said his client felt “deep regret” after realising the potential consequences of his actions.
He said Robinson was aware of the reporting restriction in place in the case but thought what he was saying on camera was already in the public domain.
The barrister added: “He was mindful, having spoken to others and taken advice, not to say things that he thought would actually prejudice these proceedings.
“He did not try to cause difficulties for the court process.”
To which one is inclined to say “Hmm,” but a barrister doesn’t just make things up, he says them on instructions. In this case Mr Robinson’s instructions. Robinson must have told him he had deep regret over his actions.
Mr Harding also put forward the other thing that had kept Robinson out of gaol in Canterbury:
“… there had been “a price on his head” during his last prison term with inmates being offered the reward of drugs and mobile phones to kill him.”
It was never very likely that he could use the same argument successfully again, and so it proved. On the other hand his strategy of admitting guilt and apologising, no doubt got him a lighter sentence.
Come on though! 13 months for contempt of court? That’s unprecedented.
No, it’s not unprecedented at all. The maximum sentence is 2 years imprisonment. Andrew Keogh, editor of Crime Line Law, and someone with an encyclopaedic knowledge of the criminal law, has pointed out that there have been dozens and dozens of cases where contemnors have been sentenced to between 12 and 24 months. Both of Mr Robinson’s sentences were less than 12 months, although combined of course, they were just over.
There is no case law involving precisely similar conduct, but one case which has some parallels is R v. Vincent D  EWCA Crim 1271, where the brother of a defendant took pictures on his mobile phone of a witness, a prison officer and the defendant himself inside the court-room during a trial. The photographs were of poor quality and it wasn’t possible to identify the witness or the prison officer. The brother admitted contempt. He said he had taken the photographs for fun. The Crown Court Judge imposed a sentence of 12 months, pointing out, amongst other things, the considerable risk that the trial, in that case a long-running drugs conspiracy, might have had to have been abandoned and started all over again. The Court of Appeal upheld the sentence.
What is, if not unprecedented, at least remarkable about the case is Mr Robinson’s flagrant disregard of the shot across his bows in Canterbury, and his repetition of almost exactly the same conduct. A refusal to obey the clear orders of the court is generally regarded as a pretty important aggravating feature. If a burglar gets a 3 month suspended sentence for a burglary in 2017, he should expect to get a much longer, consecutive and immediate sentence for carrying out an almost identical burglary 12 months later. The principle is the same for contempt of court.
“No one could possibly conclude that it would be anything other than highly prejudicial to the defendants’ in the trial.”
“If the jurors in my present trial get to know of this video I will no doubt be faced with an application to discharge the jury.”
It is not clear whether or not he was faced with such an application, or (if he was) what he decided.
How does Tommy Robinson appeal then?
Like anyone else unhappy with their verdict or sentence, Robinson can apply to the Court of Appeal to quash the conviction or reduce the sentence.
In fact he’s in a slightly better position than most. Under S.13 of the Administration of Justice Act 1960 he has an appeal as of right; he doesn’t even need to ask for permission from a single judge as he would if he had been convicted in court in an “ordinary” case.
Well that should be a doddle, shouldn’t it? He was arrested and sentenced within 5 hours. How’s that fair?
Actually he doesn’t seem to be arguing with his conviction. Despite all the hoo-ha, the marches, the demos, the intervention of the shock-jocks and of Katie Hopkins herself, his spokesman has said that he’s appealing his sentence, not the fact of the conviction.
Hang on! That’s hardly his fault, is it? He can’t appeal it now, because he pleaded guilty, and that was all the fault of his useless public defender lawyer.
Let’s break that down a little bit.
“Tommy has switched lawyers. He now has a top law firm that is filing an appeal. They are giving Tommy the world-class representation that he needs.”
How is Tommy paying for these top lawyers?
The world class representation is being crowd-funded. According to Mr Levant:
“We anticipate this will be tens of thousands of pounds. But that’s fine – this is the most important legal case in the United Kingdom.”
I must admit I gulped when I read “tens of thousands of pounds.” I’ve no problem with Mr Robinson paying one of my stellar colleagues whatever the market will bear, but the idea that an appeal against sentence normally costs tens of thousands of pounds is ludicrous.
Then I gulped again when I saw the case described as “the most important legal case in the United Kingdom.” I hadn’t realised that.
However, if you read a little further into the press release, it turns out that the crowd-funding is not just for his legal fees: the surplus is going to Tommy’s family.
Well the sentence is just insanely long, isn’t it? I’ve heard Katie Hopkins say so.
Although the opinion of respected academics can sometimes be cited in court, that of Katie Hopkins is unlikely to be accorded much weight.
I suppose he may have the beginnings of an argument on the procedural issue. The judge could have adjourned Robinson’s case for a few days, until after the trial was over. In some cases waiting for a few days for the dust to settle, for legal advice to be given and reflected upon may make sense. Hot heads, including occasionally judicial ones, can cool down; things done in anger may be genuinely regretted. Mr Robinson now seems aggrieved that he didn’t have time to instruct a lawyer of his own choosing, although whether that is something that he raised at the time, or just a complaint his supporters have thought up since is not clear.
On the other hand here were excellent reasons why the judge decided to act as he did. Robinson had shown a determination to carry on his filming and his You Tube posting despite an earlier court order. His behaviour had already caused a huge distraction at a critical stage of the trial. The last thing he needed was Robinson and his supporters continuing to distract the jury and intimidate the defendants. He could have remanded him in custody until the conclusion of the trial, but it’s hard to see what a delay would have achieved beyond giving Mr Robinson’s supporters further reason to demonstrate outside the Leeds Crown Court. And whilst it’s true that people should have a free choice of lawyer, the courts are very rarely willing to adjourn an urgent hearing to allow a defendant to instruct a particular lawyer if other competent representation is available, as it was. In that respect Mr Robinson was treated in exactly the same way as any other defendant.
In any case, a quibble over procedure is only the beginnings of an argument. What really matters is whether the sentence was actually too long. The Administration of Justice Act 1960 does not use the words, but whether it was “manifestly excessive” will be the issue for the Court of Appeal, as it is in ordinary appeals against sentence.
It’s very difficult to see that it was. The aggravating features were many:
Sometimes of course, and not just in contempt cases, things that have happened after a person has gone to prison can influence the court. Prison governors occasionally write to the Court to say that they have seen particularly good behaviour or a prison chaplain might say that a prisoner has demonstrated a particularly high degree of remorse.
In Mr Robinson’s case it’s hard to see that happening. Despite his expressions of regret, sorry “deep regret,” at the sentencing hearing, ever since his supporters have carried on a campaign of marches, demonstrations and internet activism which doesn’t seem to reflect that deep regret at all. Of course, it may be that Mr Robinson himself is sitting in his prison cell deeply regretting his actions and those of his various apparent spokespeople, but if his regret was of the profoundly deep type that occasionally influences the Court of Appeal it’s odd that he has not taken the step of telling them all to shut up. The closest we’ve got to that is someone calling herself his “PA” telling his supporters:
In a short video Ms Gower even warned Tommy’s supporters “to cause no problems” and not to “livestream or take pictures on the court premises.”
Very sensible requests, and demonstrating an awareness that even an appeal court could be influenced by “problems” outside. But it still falls some way short of an expression of deep regret.
Well you’re just a leftard cuck, what do you know? As Ezra Levant says “Tommy’s got world class lawyers now,” not some provincial nobody like you. The worst that can happen is that he’ll lose his appeal.
I’m sure Tommy’s world class lawyers will have advised him that losing isn’t necessarily the worst that can happen.
The Court of Appeal has the power to reduce his sentence, certainly. But let’s just have a quick look at S.13 of the Administration of Justice Act 1960, which, as you’ll remember, is the provision that gives Mr Robinson a right to appeal. Subsection (3) is the crucial bit:
“The court to which an appeal is brought under this section may reverse or vary the order or decision of the court below, and make such other order as may be just ….”
The wording is slightly different from the corresponding subsection (S.11 (3), since you ask) in the Criminal Appeal Act 1968 which contains these words:
“… the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.”
In practice, the Court of Appeal has got round the rule against making sentences more severe on appeal by directing, in completely unmeritorious cases, that some of the time served awaiting an appeal should not count towards the sentence. It has the practical effect of increasing the sentence and it is a power the Court has shown itself more and more ready to use in recent years.
In an appeal, like Mr Robinson’s, under the 1960 Act, the Court of Appeal can “vary” Judge Marson’s order by making it more lenient, or by making it more severe. I’m not of course saying that that will happen, it would certainly be a highly unusual thing to do, but it is legally possible. It’s also possible, and perhaps more likely, that the Court could direct that some of the time served doesn’t count. That would be an increase in the sentence in all but name.
So you’re saying that the Court might actually increase his sentence?
Yes, it could.
The post Tommy Robinson’s appeal: will his world class legal team get him out of prison? appeared first on BarristerBlogger.
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