Khan [2018] EWCA Crim 2641

Regina v Naim Khan [2018] EWCA Crim 2641 concerned an appeal by Mr Naim Khan against both a finding of contempt of court and a sentence of seven days’ imprisonment imposed by His Honour Judge Ross in the Crown Court at Oxford on 8 January 2018. The Court of Appeal (Lord Justice Flaux, Mrs Justice Cheema-Grubb DBE and Mr Justice Soole) allowed the appeal.

Mr Khan was one of several defendants on trial before a judge and jury. On the afternoon of Friday 5 January 2018, during prosecution counsel’s closing speech, there were a number of unwarranted interruptions by counsel for one of the other defendants. After the jury had been sent home for the weekend, the judge expressed his displeasure at those interruptions and a somewhat heated exchange ensued, at the end of which the judge refused to allow counsel to raise what was said to be a point of law. As the judge was about to leave court, he saw and heard Mr Khan clapping his hands about six times. The judge informed Mr Grainger (counsel for Mr Khan) that he would deal with the matter on the following Monday and then rose. On Monday 8 January 2018, before the jury returned, the judge indicated that he would deal with the issues arising in relation to Mr Khan later that day at a break.

At 12.41pm that day, Mr Grainger sought to provide an explanation for the appellant’s behaviour on which he had taken instructions after court on Friday. He explained that Mr Khan had a back injury from a historic car accident for which he took medication, which he did not always receive, and that he suffered from diabetes for which he took insulin. The trial had been a long one and he had not felt well throughout, particularly the previous week. Mr Grainger said that Mr Khan had not meant any disrespect or discourtesy, did not even know why he had clapped, and was sorry that he had done so. The behaviour would not be repeated.

The judge then proceeded to rule that Mr Khan was in contempt of court. He said that Mr Khan had been disruptive on a number of occasions during the trial and he had excluded him from court after he saw him throwing something at a co-defendant (a reference to throwing a piece of paper at his co-defendant during legal submissions the previous Thursday). The judge said that to behave in the way he did by applauding on Friday, after all the warnings he had been given, was not something that the judge was prepared to overlook. Notwithstanding what his counsel had said, it was a clear and now admitted contempt of court. The judge imposed a seven day sentence to start at the conclusion of the sentence the appellant was currently serving. Any further misbehaviour would be dealt with by a combination of exclusion from court and longer sentences for contempt. The judge concluded that enough was enough and that Mr Khan had decided until then that he would chance his arm and thus far the judge had dealt with him fairly leniently. No longer.

On behalf of Mr Khan, Mr Grainger explained in his written advice and confirmed before the Court of Appeal that although he was aware that summary proceedings for contempt may have been at the forefront of the judge’s mind, he proceeded on the basis that the initial discussions were preliminaries. In other words, there would be the opportunity to provide an explanation and an apology, after which the judge might or might not proceed with a contempt hearing. He said that the speed and short-circuited nature of the process was not something that he had anticipated. Mr Grainger submitted that because he and Mr Khan had not been put on notice that these were contempt proceedings and Mr Khan had not had the allegation of contempt put to him, he had not had the opportunity to admit or deny the allegation. Mr Grainger would have submitted that it was not a contempt as the hearing had concluded, the judge was in the process of leaving and the jury was not present. He also submitted that he was taken by surprise by the sentence. He would have wished to make submissions as to the appropriate sentence and would have submitted that a sentence of seven days’ imprisonment for a short round of applause was manifestly excessive in the circumstances.

On behalf of the prosecution, Mr Gardner submitted that Mr Grainger’s submissions amounted to an admission of contempt. The procedure required by Rule 48 of the Criminal Procedure Rules may not have been followed completely, but nonetheless the spirit of the rule had been complied with. Mr Gardner submitted that, in effect, it was to be inferred from all the circumstances, both of the previous conduct and what the judge had said on the Friday and first thing on the Monday morning, that the judge proposed to proceed with a contempt hearing. He submitted that the judge had afforded counsel sufficient time to take instructions and to prepare submissions, including as to punishment. In his Respondent’s Notice, he submitted that the sentence was not excessive in the circumstances, given Mr Khan’s prior misconduct and the fact that this was disorderly or insulting behaviour from the dock during a long trial. The fact that it occurred in the absence of the jury did not make it any less of a contempt in the face of the court.

Lord Justice Flaux rejected the prosecution’s submissions. He held that the real difficulty in the present case was that the judge did not at any stage, either on the Friday evening or when the court reconvened on the Monday, or when he dealt with the matter later in the day, say in open court, in front of Mr Khan and his counsel, that he considered the appellant to be in contempt of court and why, or that he would hold a contempt hearing later that day, let alone provide the explanation required by Rules 48.5(2) and 48.6(3) of the Criminal Procedure Rules. The court did not consider it sufficient that the appellant’s counsel was aware that summary contempt proceedings may have been at the forefront of the judge’s mind, as he candidly accepted in his advice. In particular, the court accepted Mr Grainger’s explanation that, whilst this was the case, he thought that what was taking place on the Monday were “preliminaries”, an opportunity for Mr Khan, through his counsel, to apologise for his behaviour, after which, if the judge nonetheless considered that there had been a contempt which should receive a sanction, he would hold a formal contempt hearing. Had the judge stated at any point prior to that hearing that he proposed to hold a contempt hearing on the Monday and explained the nature of the contempt, as he saw it, Mr Grainger would have had the opportunity to give advice to Mr Khan, to make submissions as to whether there was a contempt, including whether the clapping had been intended to be sarcastic and disrespectful of the judge, and as to mitigation, including the appropriate punishment if it was a contempt.

The court considered that, in effect, Mr Gardner’s submission that it was perfectly obvious that Mr Khan was being sarcastic and disrespectful was an assumption that may be incorrect, however much one suspected he was correct about that. As Mr Grainger said in his written submissions, it remained unclear whether Mr Khan was applauding the judge’s robust handling of the situation, or the impertinence of the other defendant’s counsel. In fairness, it could not simply be assumed that it was the latter, without Mr Khan, through his counsel, having been afforded the opportunity to challenge the judge’s view that he was in contempt and make submissions in mitigation. The court considered that the judge was in error when he said in his ruling that contempt of court was “now admitted”.

The court added that nothing in the judgment should be taken as discouraging or impeding the summary approach to contempt in the face of the court, which is required in certain cases. Lord Justice Flaux referred to the recent judgment of the Lord Chief Justice in R v Yaxley-Lennon (aka Tommy Robinson) [2018] EWCA Crim 1856 at paragraph 27, where Lord Burnett of Maldon CJ said that it has long been the case that a judge may, but not must, deal with a contempt committed in the face of the court summarily, albeit after ensuring a fair hearing. So too may a judge deal summarily with a contempt which amounts to an interference in the course of the proceedings he or she is conducting. The power to punish such contempt arises under the common law in addition to statute. Its purpose is to equip the court with the means to protect its processes and penalise those who seek to impede to subvert them. Because of the need to respond quickly and decisively in such cases, the court is empowered to act summarily and, if necessary, impose a term of immediate imprisonment. However, this jurisdiction should be exercised sparingly. The Lord Chief Justice went on to say that procedural fairness has always been a requirement in contempt proceedings, including the need to particularise the alleged contempt at the outset. An alleged contemnor must know what it is he has done which is said to amount to a contempt of court so that he can decide whether to accept responsibility or contest the allegation. Whilst that is a common law requirement, it chimes with article 6(3) of the European Convention on Human Rights. Such safeguards are now to be found in Part 48 of the Rules.

The court held that it followed that, even in cases dealt with summarily, as this one essentially was, the requirements of those Rules should be complied with: in particular, the explanations and reasonable opportunity to which Rules 48.5 and 48.6 refer. In such cases, nothing more formal by way of notice to the alleged contemnor is required. However, the court held that, in the present case, perhaps because of the heated way in which the matter arose, the judge did not provide those explanations or provide Mr Khan thereafter with that reasonable opportunity. Nor did the judge afford Mr Khan’s counsel any opportunity to make submissions as to the appropriate sentence. Accordingly, the court considered that the procedure which the judge adopted did not provide the requisite procedural fairness and that the appeal in respect of the finding of contempt and in respect of the sentence passed must be allowed.

In short, the Court of Appeal allowed the appeal because the judge had failed to comply with the procedural requirements of the Criminal Procedure Rules in not providing the necessary explanations to the appellant or affording him and his counsel a reasonable opportunity to respond before finding him in contempt and imposing sentence.

Balogh v St Albans Crown Court [1975] QB 73, [1974] 3 WLR 314, [1974] 3 All ER 283 , [1974] 138 JP 703
Yaxley-Lennon [2018] EWCA Crim 1856