HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (QB)

HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (QB) concerned an application by Her Majesty’s Attorney General before the Divisional Court (the President of the Queen’s Bench Division, Dame Victoria Sharp, and Mr Justice Warby) for an order committing the respondent, Stephen Yaxley-Lennon (also known as Tommy Robinson), to prison for contempt of court. The Court found that the respondent had committed contempt of court in three respects and delivered detailed reasons explaining the applicable legal principles.

The respondent appeared outside Leeds Crown Court on 25 May 2018, during the retirement of the jury in R v Akhtar, a case in which nine defendants were accused of sexual offences against women and girls. He live-streamed video footage via his Facebook page to approximately 10,000 viewers initially, which eventually reached over 3.5 million views. The footage showed him speaking about the trial, reading out the defendants’ names and charges, and confronting several defendants as they arrived at court.

The relevant legal background involved a reporting restriction order (RRO) imposed on 19 March 2018 by HHJ Marson QC under section 4(2) of the Contempt of Court Act 1981, which postponed publication of any report of the proceedings until after the conclusion of the trial and all related trials. A series of three interconnected trials had been ordered in January, April, and September 2018, and the RRO was designed to prevent prejudice to the later trials. The respondent had previously been committed to three months’ imprisonment, suspended for 18 months, at Canterbury Crown Court for filming in the precincts of that court in May 2017 whilst knowing a jury was deliberating.

On 25 May 2018, the respondent arrived at court at around 8:10 to 8:15 am and entered through the accessibility door. His own evidence accepted that he had heard there was a reporting restriction. He approached a Court Security Officer, Mr Walton, asking about a press ban and whether the listing for the case was available. Mr Walton advised him to enquire at the Crown Court General Office or at Reception when they opened, or to check notices on the courtroom door, and informed him that the building was not open to the public until 8:30 am. The respondent left. He claimed to have checked online and sent a colleague to check screens inside the building, but the Court rejected this evidence as not credible, particularly as it had evolved and become more elaborate over successive witness statements.

From around 8:32 am, the respondent began filming and live streaming, showing himself outside the public entrance discussing the trial, reciting defendants’ names and charges, and accosting individuals entering court. Three were identified by police as defendants in the trial. The filming continued until around 9:45 am, when he was arrested. He offered to have the video deleted from Facebook, but it had already been shared widely and gone viral. He was brought before HHJ Marson QC, who found him in contempt and committed him to ten months’ imprisonment, also activating the suspended sentence consecutively, making a total of 13 months.

The Court of Appeal quashed the committal order on 1 August 2018, identifying procedural flaws. Although it was tolerably clear that the allegation was breach of the RRO, there had been no clear statement of the conduct alleged to constitute the breach. The Judge’s reasoning did not make clear what he considered to be a breach and relied on conduct which, if it was contempt, could not have amounted to breach of the RRO. The matter was remitted to be heard before the Recorder of London at the Central Criminal Court following the procedure in Part 48 of the Criminal Procedure Rules. The Attorney General was invited to nominate an advocate to assist. However, when significant factual disputes emerged in the respondent’s witness statement, including claims that he had made enquiries about the RRO, the Recorder concluded on 23 October 2018 that the matter could not fairly be disposed of under Part 48 and referred it to the Attorney General to consider bringing adversarial proceedings.

The Attorney General brought the present application by Part 8 Claim Form, invoking Part 81 of the Civil Procedure Rules. Permission was required, and the Court heard the permission application on 14 May 2019, granting permission on all three grounds. The substantive hearing took place on 4 and 5 July 2019. The respondent, Mr Walton, and Ms Michelle Dunderdale (Operations Manager at Leeds) were cross-examined. The respondent submitted a further affidavit during the hearing and was recalled for further cross-examination.

On the first ground, breach of the RRO, the Attorney General alleged that the respondent published a report of the Akhtar trial knowing that a reporting restriction was in place and having failed to take reasonable steps to ascertain its terms, or being reckless as to its terms. The Court found that the respondent repeatedly reported on the proceedings, reading out names of nine defendants and all charges they faced from an online Huddersfield Examiner report of the directions hearing on 11 May 2017, and making numerous references to the trial and verdicts being awaited. The respondent argued that all information reported was already in the public domain and that he had made efforts to ascertain whether the restriction had been lifted.

The Court rejected the respondent’s defence based on information being in the public domain. Relying on section 4(2) and the authorities, the Court held that an RRO imposed under that section operates to prohibit reporting of the proceedings to which it refers from the time it is made until the specified end point. The fact that there has already been reporting, or that matters later given in evidence have previously been made public, does not debar the Court from making such an order, nor is there any implied public domain proviso permitting reporting of aspects of the proceedings so long as the facts in question have been publicised before. The Court also rejected the argument that the RRO was wrongly made, holding that orders must be obeyed whilst they remain in force and that the validity of a section 4(2) order cannot be challenged in contempt proceedings based upon a breach, following Attorney General v Horsham Justices ex p. Farquharson [1982] QB 762.

As to the mental element, the Court held that it was not necessary to prove actual knowledge of the terms of a section 4(2) order. A rule requiring actual knowledge would pose a serious risk of such orders being ineffectual and create a perverse incentive for reporters to avoid acquiring knowledge. It was sufficient to establish subjective recklessness as defined in R v G [2004] 1 AC 1034. A person who publishes material in breach of an RRO will be guilty of contempt if he or she foresees the possibility that the publication may be a breach of such an order but proceeds with publication, taking an unreasonable risk. Someone who knows or suspects that an order is in place but does not know its terms is put on inquiry, and failure to make reasonable enquiries will ordinarily allow an inference of subjective recklessness.

The Court was entirely satisfied that the respondent had actual knowledge that there was an order restricting reporting. He said as much repeatedly on the video itself, admitted it to HHJ Marson through Counsel, and admitted in his written evidence that he was aware there was a reporting restriction. The Court accepted Mr Walton’s evidence that the respondent asked if the ban had been lifted, but found he had no information suggesting it had been and proceeded to film in ignorance of the terms or status of the order, thereby taking an unreasonable risk. The Court rejected the respondent’s evidence that he consulted the Judicial College guidance and concluded he was free to report anything in the public domain, finding this a late and implausible aspect of his account. The Court found that what the respondent published plainly included material amounting to reporting of the proceedings and thus infringed the RRO. It was not necessary to establish a specific intent to interfere with the administration of justice, following Solicitor General v Cox [2016] 2 Cr App R 15. The first ground was made out.

On the second ground, breach of the strict liability rule under sections 1 and 2 of the Contempt of Court Act 1981, the Attorney General alleged that the respondent was responsible for a publication which created a substantial risk that the course of justice in the Akhtar trial and related trials would be seriously impeded by its impact on the defendants. The Attorney General no longer pursued an argument based on prejudice to jurors. The case was that the video created a risk that defendants would be harassed on their way to court by followers who had seen it, or reasonably apprehend such harassment, creating distraction and anxiety impeding their ability to participate properly in the trial. This would necessitate additional protective measures and might cause defendants on bail to abscond.

The Court focused on a passage in the video in which the respondent said: “You want to harass someone’s family? You see that man who was getting aggressive as he walked into court, the man who faces charges of child abduction, rape, prostitution – harass him, find him, go knock on his door, follow him, see where he works, see what he’s doing. You want to stick pictures online and call people and slander people, how about you do it about them?” The respondent claimed this was directed at the press who had slandered him, not an incitement to his supporters. The Court rejected this defence, finding that the words and manner of delivery constituted encouragement to others to harass a defendant and gave rise to a real risk that the course of justice would be seriously impeded. The words had to be assessed in the context of the video as a whole, in which the respondent approved and encouraged vigilante action.

The Court rejected the argument that the threshold for this ground required proof of a seriously arguable ground of appeal, holding that the notion of impeding the course of justice is distinct from prejudicing jury deliberations and engages very broad considerations concerning the administration of justice and the public interest. The course of justice includes the whole process of the law, and may be impeded by external pressure which restricts the freedom of a person accused of crime to conduct his defence in the way which seems best to him and his advisers, citing Attorney General v Times Newspapers Ltd (12 February 1983) and Attorney General v MGN Ltd [2012] 1 WLR 2408. The Court found there was a real and substantial risk that defendants would view the video, given that it was clear to all confronted that the respondent was filming for broadcast in a hostile manner, and it would be natural for defendants to want to know what had been broadcast about them at such a sensitive time. The words amounted to incitement and, given the un-moderated nature of social media platforms and the respondent’s large following, created a substantial risk of harassment and that defendants would feel intimidated, adversely impacting their ability to participate in the closing stages of the trial. The second ground was made out.

On the third ground, direct interference with the administration of justice at common law, the Attorney General alleged that the respondent confronted defendants in aggressive and provocative terms whilst openly filming them, creating a real risk that they would not attend court in a frame of mind allowing them to participate properly in their trial, and disrespecting the authority and dignity of the court. The Court found that the respondent’s behaviour when confronting defendants was intimidating, aggressive, and provocative, and gave rise to a real risk that defendants would arrive at court in an upset and agitated state unsuitable for participation in serious proceedings. The Court affirmed the long-standing principle that those who have duties to discharge in a court of justice are protected by the law and shielded on their way to and from court, and that the authority and dignity of the court require that those attending court should be allowed to do so without let or hindrance, citing Re Johnson (1888) 20 QBD 68 and R v Runting (1989) 89 Cr App R 243. There was no proper basis for limiting this principle to acts of physical rather than verbal molestation.

The Court further considered whether the respondent’s filming of defendants as they entered the court building or its precincts, contrary to section 41 of the Criminal Justice Act 1925, amounted to contempt at common law meriting committal. The Court held that whilst a section 41 offence is not in and of itself contempt, conduct which crosses a threshold of seriousness may justify the more severe sanctions attaching to contempt. The Court identified several factors considered cumulatively: the filming was targeted behaviour at a time of high anxiety when defendants were entitled to be presumed innocent; it was done knowing the defendants did not wish to be approached; aggressive responses were exploited against the defendants; the filming was very public, persistent, and involved a degree of following whilst live streaming; and it occurred in the context of the harassment already addressed. The Court emphasised that condoning the live broadcast of defendants being aggressively confronted as they arrive at court, in conjunction with prejudicial commentary and exhortations to harassment, would pose a risk to the wider interests of the justice system. It was not necessary to show knowledge of the legal provision or specific intent to interfere with the administration of justice; it was enough that the conduct was deliberate, which was beyond doubt. The third ground was made out.

The respondent argued that his activities fell within the boundaries of reasonable journalistic behaviour and were protected by Article 10 of the European Convention on Human Rights, guaranteeing freedom of expression. The Court acknowledged that the imposition of penalties for contempt represents an interference with that right, but held that the interpretation and application of the law of contempt was consistent with the Convention. An interference must be necessary for and proportionate to a legitimate aim set out in Article 10(2), including maintaining the authority and impartiality of the judiciary. The Court emphasised that this principle is essential to the maintenance of democratic order and that due process is not just about outcomes. The rule of law demands that those who subvert due process be held to account, whether or not they actually threaten the fairness of the end result. On the facts, the weight to be given to these principles comfortably exceeded that to be given to the forms of expression used by the respondent.

The Court also addressed the procedural issues that arose at the permission hearing on 14 May 2019. It was common ground that permission was required, but there was debate about whether permission was required for the first ground, breach of the RRO. CPR 81.12(1) provides that Section III of Part 81, which regulates committal applications for interference with the due administration of justice in connection with criminal proceedings, does not apply where the contempt consists of disobedience to an order of the court. The Court concluded that the apparent exclusion from Section III of applications to commit for breaches of RROs was an accident of drafting. The words of exception were not intended to allocate such applications to Section II of Part 81, which deals with breach of judgments and orders generally and would impose inappropriate procedural requirements such as personal service. The Court held that Section III applied and permission was required for all three grounds.

As to the threshold test for granting permission, the Court rejected the respondent’s submission that a strong prima facie case was required. Cases establishing that test arose in the different context of civil litigants seeking to commit opposing parties for false statements of truth. In proceedings brought by a Law Officer to protect the administration of justice, the Court would examine the case, consider the public interest, and grant permission unless the grounds were fanciful, failed to disclose a reasonable basis

Rex v Davies [1906] 1 KB 32
Attorney General v Times Newspapers Lt d [1974] AC 273
Solicitor General v Cox [2016] 2 C r. App. R. 15
Attorney General v English [1983] 1 AC 116
R v Horsham Justices, ex p. Farqu harson [1982] QB 762
Montgomery v HM & Another [2003] 1 AC 641
Montgomery v HM Advocate and Re B [2006] EWCA Crim 2696
G and Another [2003] UKHL 50, [2004] 1 AC 1034, [2003] 4 All ER 765, [2003] 3 WLR 1060, [2004] 1 CrAppR 21
Attorney General v Dallas [2012] 1 WLR 991
HM Attorney-General v MGN Limited and Another [2011] EWHC 2074 (Admin), [2012] 1 WLR 2408
Attorney General v B irmingham Post and Mail Ltd [1999] 1 WLR 361
R v D [1984] AC 778

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