Balogh v St Albans Crown Court [1975] QB 73, [1974] 3 WLR 314, [1974] 3 All ER 283 , [1974] 138 JP 703

Balogh v St Albans Crown Court [1975] QB 73 was a decision of the Court of Appeal (Lord Denning MR, Stephenson and Lawton LJJ) which allowed an appeal against a six-month sentence for contempt of Court and in so doing set out the limits and proper exercise of the summary jurisdiction to commit for contempt of its own motion. The court held that the appellant’s conduct did not amount to contempt and, further, that even if it had, the case had not warranted the immediate use of summary powers.

Stephen Balogh was a casual clerk employed by solicitors in a pornography trial at St Albans Crown Court. Bored by the length of the proceedings, he devised a plan to inject nitrous oxide into the Court’s air-conditioning system. He stole a half-cylinder of the gas from a hospital car park, hid it in his briefcase, and one evening reconnoitred the roof-top ventilation ducts. The following morning he placed the case in Court No. 1 and awaited an opportunity to carry out his plan. Court officers, who had seen him on the roof the night before, monitored him, opened his case in his absence and discovered the cylinder. Balogh was arrested, cautioned and admitted the facts. He was charged with theft and kept in custody. At the close of the day’s sitting Mr Justice Melford Stevenson had him brought before the Court and heard evidence from the police. Balogh argued that he intended to disrupt the proceedings next door and was therefore not in contempt of Melford Stevenson J’s Court. The judge replied that Balogh had intended to disturb proceedings in the building, of which his Court was one, and remanded him in custody overnight. The next morning the judge heard evidence as to Balogh’s background. Balogh repeated that he was not in contempt of that Court and complained that he had not been represented. The judge sentenced him to six months’ imprisonment, stating that the contempt jurisdiction vested in the Court for hundreds of years was the basis for the sentence and that the theft charge was not in issue. Balogh responded with an insult. Eleven days later he wrote from prison to the Official Solicitor acknowledging his conduct as contemptible and asking to apologise. The Official Solicitor instructed counsel and the appeal came on urgently.

The Court of Appeal identified three questions: first, whether Melford Stevenson J had jurisdiction to commit summarily for contempt; secondly, if so, whether he should have exercised that jurisdiction on the facts; and thirdly, whether Balogh’s conduct amounted to contempt at all.

As to jurisdiction, Lord Denning MR held that the Crown Court, as a superior Court of record under section 4(1) of the Courts Act 1971, enjoyed in relation to contempt the like powers and authority as the High Court by virtue of section 4(8). The High Court in turn inherited the jurisdiction of the Superior Courts and of Judges of Assize. Order 52 of the Rules of the Supreme Court governed the procedure, and counsel for Balogh argued that Order 52 rule 1 confined summary committal to contempts “committed in the face of the Court” and that, on the authorities, that phrase required the Court to have personal knowledge of all the circumstances. The Master of the Rolls answered that Order 52 rule 5 preserved the power of the High Court to make an order of committal of its own motion against a person guilty of contempt, and that the question was when the High Court could act of its own motion. He held that “contempt in the face of the Court” really meant “contempt in the cognizance of the Court” and had always extended to any gross interference with the course of justice in a case being tried, about to be tried or just over, regardless whether the judge saw it himself or it was reported to him, whenever it was urgent and imperative to act immediately. He reviewed a number of modern instances: missiles thrown at the judge; students who broke up a civil trial and were committed at once by Lawton J as he then was; a witness who refused to answer and was immediately sentenced at York Assizes in 1861; distribution of inciteful leaflets in the public gallery at the Old Bailey, where Melford Stevenson J heard evidence and committed after the offender denied the charge; a threat to a schoolgirl witness at Bristol Assizes in a cafe, where Park J broke off the trial, heard evidence and sentenced the threatener to three months; and a case where an employer threatened to dismiss a man summoned for jury service and Melford Stevenson J held it a contempt attracting immediate imprisonment.

Lord Denning MR emphasised that the power was great but necessary to maintain the dignity and authority of the Court and to ensure a fair trial. It was to be exercised by the judge of his own motion only when it was urgent and imperative to act immediately, to maintain authority, prevent disorder, enable witnesses to be free from fear and jurors from improper influence. It was to be used with scrupulous care and only when the case was clear and beyond reasonable doubt. In all other cases the judge should not take it upon himself to move but should leave it to the Attorney-General or the party aggrieved to make a motion under Order 52. The reason was so that the judge should not appear both prosecutor and judge.

Turning to the present case, he held that up to a point the judge was right to act of his own motion. Balogh’s intention was to disrupt a trial then taking place, it was reported to the senior judge in the building, and it was very proper to take immediate action. But once Balogh was before him and already in custody on a charge of theft there was insufficient urgency or imperative need to justify summary punishment. The judge would have done well to remand him in custody and invite counsel to represent him. Counsel would have taken the point that followed.

On whether the conduct amounted to contempt, the Master of the Rolls noted that contempt is a criminal offence governed by the same principles applicable to criminal offences generally, in particular the distinction between an attempt and a preparatory act. On the facts Balogh had more to do: he had to retrieve his case, go to the roof, place the cylinder, and open the valve. Even if he had done all those things it was doubtful the gas would have had any noticeable effect, diluted by air. The question sprang to mind whether he had gone far enough to be guilty of an attempt or whether his acts remained merely preparatory. By analogy to a man who steals a car with intent to burgle a house but is apprehended before alighting, Balogh was guilty of stealing the cylinder but not of attempting to disrupt the Court. He had the criminal intent, but that was not enough. On this short ground the appeal was allowed. Independently, the sentence of six months had been excessive; the fourteen days served and Balogh’s apology were enough to purge any contempt if contempt it was.

Lord Denning MR concluded that the lesson was that judges of the new Crown Courts should not hesitate to exercise the authority they inherited. Insults were best treated with disdain save when gross and scandalous; refusal to answer with admonishment save where vital. But disruption or threats to witnesses or jurors should be visited with immediate arrest, then a remand in custody and, if possible, representation by counsel. If a sentence followed, it should be such as the offence deserved, with the comfort that error could be corrected swiftly on appeal. The judge in this case had acted with proper firmness but, as it happened, went too far. That was no reproach; it only showed the wisdom of having an appeal.

Stephenson LJ decided the last question first. He held that there was no contempt of Court. The admitted acts were preparatory to what might have been a serious contempt but the appellant had not got as far as contempt or even an attempt to commit contempt, except possibly on an understanding of attempt not generally accepted and perhaps too unfavourable to the accused. Contempt of Court was a common law misdemeanour but acts which would not amount to an attempt could not amount to contempt. It was not contempt to plan or intend one or to take such preliminary steps as Balogh took. The would-be contemnor had not insulted the Court, obstructed its proceedings or done anything to bring the Court into disrepute or interfere with the administration of justice. Any danger of his doing so was averted by the police. That was sufficient to allow the appeal.

Stephenson LJ added that had Balogh carried out his intention, even to no purpose, he would have been guilty of contempt in the face of the Court however narrowly that expression was interpreted. Mr Vinelott had not argued otherwise. As to whether that contempt could or should have been punished immediately by Melford Stevenson J, his answer was no, and for two reasons: the procedure should be resorted to only in exceptional cases where a contempt was clearly proved and could not wait to be punished; here the facts were admitted but there was no need for immediate punishment. Nevertheless, because the Court had heard full submissions on the matter and wished to give guidance to judges of the Crown Court who now possessed the arbitrary power to make immediate orders of committal of their own motion, he offered observations on the limits of the power and the conditions for its exercise.

He reviewed the history and nature of the summary jurisdiction. It was ancient, necessary and unusual if not unique. It was as old as the Courts themselves and necessary for the performance of their functions. If they were to do justice they needed power to do so without interference or affront, as well as to enforce their own orders and to punish misbehaviour that weakened or lowered the dignity and authority of a Court. Indirect interference might now be more serious and frequent, though insulting behaviour in Court once attracted horrifying severity. Blackstone recorded that before the Conquest fighting in the King’s palace or before his judges was punished with death, and striking in Westminster Hall or at Assizes was made still more penal, being a capital felony under the ancient common law. Blackstone regarded the summary procedure as exceptional, the common law being a stranger to summary proceedings save in the case of contempts. The power remained essential to secure the administration of laws from disobedience and contempt. Though Blackstone spoke of attachment, it was not disputed that the High Court now made immediate orders of committal. Contempt could also be the subject of indictment, though that had not been used since 1902. Usually the Attorney-General now moved the Court to commit for criminal contempt. Order 52 rule 1(2)(a) purported to give sole jurisdiction to the Divisional Court with leave for criminal contempts except where committed in the face of the Court or consisting of disobedience or breach of undertaking. But rule 5 preserved the power of the High Court or Court of Appeal to commit of its own motion. Section 4(8) of the Courts Act 1971 gave the Crown Court the like powers as the High Court. Various statutes treated certain contempts as if committed in the face of the Court.

Stephenson LJ held that the present Rules, like the earlier rules they replaced, reflected the notion that summary power to imprison of the Court’s own motion was limited to contempts in facie curiae. He would understand those words originally to have meant “in the sight of the Court”, which was ambiguous. Section 157(1) of the County Courts Act 1959, based on Bowen LJ’s judgment in Re Johnson (1887) 20 QBD 74, extended the range but confined contempts to insults. However, contempts were not confined to insulting or offensive words or conduct or to disturbance of hearings, and those were not the only contempts attracting the summary remedy. He did not accept that the Rules of the Supreme Court defined or restricted the limits of the Superior Court’s power to imprison. The question was not what the rules said or implied but what the power really was. He was satisfied it was not limited to contempt in the face of the Court on any permissible understanding but had long extended also to disobedience to orders, breaches of undertaking, and interference with the administration of justice which satisfied two conditions: first, that the contempt was clearly proved beyond reasonable doubt, and secondly, that it affected or was calculated to affect the course or outcome of judicial proceedings in being, that is, in Lord Diplock’s words in Attorney-General v Times Newspapers Ltd [1973] 3 WLR at 310, actually proceeding or known to be imminent, unless immediately stopped by the apprehension and if necessary detention of the offender. Those were necessary conditions for exercise of this arbitrary power whatever the type of contempt and whatever the description of the procedure. It must never be invoked unless the ends of justice really required such drastic means. It appeared to be rough justice, was contrary to natural justice and could only be justified if nothing else would do. He cited Jessel MR in Re Clements (1877) 46 LJ Ch 383, Russell of Killowen CJ in R v Gray [1900] 2 QB 36 at 41, and Laskin J dissenting in the Canadian case McKeown v The Queen (1971) 16 DLR (3d) 390 at 413. If a witness or juror was bribed or threatened in the course of a case, whether in the Court or its precincts or at any distance from it, the judge must act at once and if satisfied of the offence punish him, if necessary by committal.

He made six further comments. First, the condition of clear proof was most easily satisfied where the contempt was something said or done in sight of the judge or jury, but it might be satisfied by admission or by acceptable and not necessarily uncontradicted evidence as in Lecointe v Courts’ Administrator of the Central Criminal Court, heard by the Court of Appeal on 8 February 1973. Secondly, he saw no reason why one judge of the Crown Court or High Court should not commit for contempt of another. It was done in the Family Division when one judge committed for breach of another’s order. It might be better in some cases for a presiding judge in the same building to commit. He did not accept Balogh’s uninstructed opinion, which Mr Vinelott had apparently abandoned, that Melford Stevenson J could not commit him for contempt of the Court next door where he intended to subvert the proceedings. Thirdly, there might be contempts requiring immediate action but not immediate imprisonment, and summary cases might appropriately be dealt with by fine, discharge or sureties for good behaviour. Fourthly, there might be cases where it was proper because necessary to commit without legal representation. Legal aid was not available for contempt but a judge could always ask counsel to represent the contemnor, as Park J did in Moore v Clerk of Assize, Bristol [1971] 1 WLR 1669. He hoped there would be few cases where this course should not be taken if counsel was available. Morris v Crown Office [1970] 2 QB 114 was one, but this case in his judgment was not. This appellant asked for legal representation and the judge should have tried to find him counsel, although he was articulate and highly intelligent, knew he was being charged with serious contempt, was given opportunity to defend himself, and seemed in no mood to listen to warnings or offer apologies. Fifthly, the power was salutary but dangerous: salutary because it gave those who administered justice the protection necessary to

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