HM Solicitor General v Trudi Warner [2024] EWHC 918 (KB)

In HM Solicitor General v Trudi Ann Warner [2024] EWHC 918 (KB), the High Court (Mr Justice Saini) refused His Majesty’s Solicitor General permission to bring contempt proceedings against the defendant and dismissed the claim.

The Solicitor General sought permission pursuant to CPR Part 81.3 to proceed against Ms Warner for alleged contempt at common law through conduct said to constitute a direct interference with the administration of justice undertaken with intention to interfere with that administration. The conduct complained of occurred on 27 March 2023, when a trial of defendants affiliated with the environmental group Insulate Britain was due to begin at Inner London Crown Court. Between 8am and 9am, in the area near the judges’ entrance used by judges and jurors, Ms Warner, a retired social worker, carried a placard with handwritten words stating “JURORS YOU HAVE AN ABSOLUTE RIGHT TO ACQUIT A DEFENDANT ACCORDING TO YOUR CONSCIENCE”. The Solicitor General alleged that Ms Warner deliberately targeted jurors with the sign, in one case hurrying to catch up with a juror, and in another walking alongside a juror while showing the sign. It was alleged that these acts interfered with jurors’ ability to go to and from court without let or hindrance, thereby interfering with the administration of justice itself, and were done with specific intention to influence jurors to acquit climate change activists irrespective of the judge’s legal directions.

The relevant facts were not materially in dispute. Ms Warner arrived at the judges’ entrance on Harper Road shortly after 8.30am carrying the placard. A small group of people had already congregated on the public footpath by the side road leading to the gate, waiting for it to open. Ms Warner stood against the perimeter wall for about a minute, then spoke with a friend she had arrived with for approximately three minutes. During this period she held the placard in her left hand, hanging by her leg. Neither Ms Warner nor her friend approached, spoke to, or otherwise engaged with anyone waiting to enter the court. When the entrance opened at around 8.37am, approximately eight people entered. Over the next twenty minutes Ms Warner walked back and forth between the wall and her friend. When by the wall she stood silently holding the placard; when speaking to her friend the placard generally hung by her side or was tucked under her arm. Some individuals looked briefly towards her as they walked past; one person paused momentarily of his own accord; others passed without looking. Two people stopped nearby before entering the court precincts, one apparently to sort through a bag and one to smoke, but Ms Warner did not approach them. One man approached Ms Warner directly to ask something, and they spoke briefly, but she did not try to show him the placard as he walked away. It was accepted that no individual was compelled or pressured to look at the placard, and pedestrians could move freely along the footpath without having to interact with Ms Warner. At around 8.58am there was a lull in people arriving, and Ms Warner and her friend packed up the placard and started to walk away. When more people appeared around 9.00am, Ms Warner unpacked the placard, walked quickly back to her position against the wall, and held it up. This happened twice. Many of those entering at this time were likely jurors attending for their first day, who would have seen the placard. Ms Warner and her friend left about a minute later. A jury was empanelled from the cohort reporting that day and the trial commenced. HHJ Reid gave standard directions at the start of the trial regarding the role of judge and jury, and gave a brief direction about protests taking place outside the front of the court that day. He first became aware of Ms Warner’s conduct later that day, when a Recorder who had walked past drew it to his attention. The following day HHJ Reid gave a further direction to the jury, stating that the only person who could tell jurors about their task was the judge, that people showing the sign the previous day were wrong about what the law is, and that jurors should try the case on the evidence and take the law from him. The trial continued without further incident and there was no suggestion its fairness was affected.

It was common ground that at the permission stage the Claimant had to satisfy two threshold matters: first, that the grounds disclosed a reasonable basis for committal, and second, that it was in the public interest that the application should be made. In the context of this case, the public interest test required consideration of whether pursuit of the application amounted to a proportionate interference with Ms Warner’s Article 10 ECHR rights. A major feature of the case was the tension between “jury equity” – the power of juries to return a verdict according to conscience – and the obligation of a jury to follow a judge’s directions on law and abide by the juror’s oath or affirmation to “faithfully try the defendant and deliver a true verdict according to the evidence”. The Solicitor General appeared to accept that juries have a power to return a verdict according to conscience, though he characterised it as a de facto power to acquit regardless of judicial directions (because juries cannot be directed to convict and cannot be punished for acquitting on conscientious grounds) but not a right to do so. There was debate about whether this constitutes a “power” or a “right”, though Saini J observed it was best described as a principle of law, an established feature of the constitutional landscape affirmed in the highest courts.

The principle of jury equity is well established in the common law, traceable to Bushel’s Case (1670) 124 ER 1006, which arose from the prosecution of two Quaker preachers for unlawful assembly. When the Recorder of London directed the jury to convict they refused and were fined and imprisoned until payment. The imprisonment was successfully challenged by habeas corpus, establishing that juries have a right to find facts and apply law according to conscience without reprisal. The principle has been endorsed at the highest levels in recent times. In R v Goncalves [2011] EWCA Crim 1703, Lord Thomas held at paragraph 38 that “a jury is entitled to acquit and its reasons for so doing are unknown. It is their right which cannot be questioned.” In R v Wang [2005] 2 Cr App R 8, the House of Lords confirmed that a judge cannot direct a jury to convict a defendant, and Lord Bingham addressed the issue of acquittals contrary to evidence by reference to high-profile acquittals where exercises of jury equity can readily be inferred. A plaque at the Central Criminal Court by Court 1, visible to serving jurors, commemorates the Penn and Mead trial and the jury in Bushel’s Case, stating that Chief Justice Vaughan’s opinion “established the right of juries to give their verdict according to their convictions”. Counsel agreed that participants in the trial process cannot lawfully invite a jury to apply the principle of jury equity or inform them of it, and this prohibition is how the common law squares jury equity with the oath jurors are required to swear. This reflects the position in the United States and other common law jurisdictions, where the unreviewable power to acquit in disregard of instructions coexists with legal practice upholding instructions that juries must follow the court’s directions on law.

The Solicitor General contended that the actus reus of the common law contempt was established, relying on Attorney General v Davey [2013] EWHC 2317 at paragraph 2, which states that the Attorney General must prove to the criminal standard that the respondent committed an act calculated to interfere with or prejudice the due administration of justice, meaning conduct creating a real risk (as opposed to remote possibility) of such interference or prejudice. He accepted that to qualify as criminal contempt the interference must be serious, citing Attorney General v Crosland [2021] 4 WLR 103. He focused on the category of interference with participants in court proceedings on their way to or from court, relying on R v Runting (1989) 89 Cr App R 243, where the Court of Appeal stated that defendants, witnesses and others with duties at court are entitled to go to and from court without being molested, assaulted or threatened, both to avoid creating fear that would make them less likely to attend, and because the authority and dignity of the court require that those attending should be allowed to do so without let or hindrance. He relied particularly on Attorney General v Yaxley-Lennon [2019] EWHC 1791, where the Divisional Court found contempt proved when the respondent aggressively confronted criminal defendants as they arrived at court, risking putting them in a frame of mind where they could not focus on proceedings. The court explained this disrespected the right of participants to attend court “without let or hindrance” and stated at paragraph 80 that “It is, fundamentally, a matter of respect for the institutions, and the process by which justice is administered”, noting the principle is not limited to physical molestation. The Solicitor General submitted that it was unnecessary to establish that the statement on the placard was inaccurate as a matter of law, though he argued it was inaccurate and this was a serious aggravating feature. He characterised Ms Warner’s conduct as instructing, encouraging or inciting jurors to disobey the judge’s directions and their oath. As to mens rea, he relied on Yaxley-Lennon at paragraph 88 and R v Jordan [2024] EWCA Crim 229 at paragraphs 41 to 52, holding that specific intent to interfere with the administration of justice is not necessary for common law contempt. He said the Claimant did not allege strict liability contempt under sections 1 and 2 of the Contempt of Court Act 1981 and therefore did not need to establish substantial risk of serious prejudice or impediment to particular proceedings. He submitted the interference occurred the moment Ms Warner displayed the sign to individuals entering via the judges’ entrance and was not dependent on proof that the fairness or effectiveness of any particular trial was compromised. He argued Ms Warner’s conduct was of gravity well above the baseline of “serious” interference, emphasising that although not verbally aggressive or involving physical pursuit on the scale in Runting, the “confrontation” was in another sense more serious than in either Yaxley-Lennon or Runting because Ms Warner directly sought to influence how jurors discharged their duties. He submitted her conduct fell within the now-obsolete indictable offence of embracery (attempting to influence or instruct a jury) and that such conduct is now treated as contempt, citing R v Owen [1976] 1 WLR 840. He also emphasised that Ms Warner’s actions had “real-world effects” in that HHJ Reid had to spend time crafting and delivering the direction.

Ms Montgomery KC and Ms Comyn submitted that the application arose from conduct not known to the law of contempt. Ms Warner had done no more than silently hold a placard informing jurors of the principle of jury equity. The placard set out a legal principle in plain terms without comment or direction. They refuted any suggestion that Ms Warner harassed, impeded or spoke to anyone, submitting that the placard simply acted as a form of street poster passing legally correct information to potential jurors and other passers-by, no more objectionable than the plaque to Penn and Mead on public display in the Old Bailey. They argued there was no tenable basis to conclude Ms Warner molested jurors, threatened them with molestation or otherwise hindered their free access to court, and no element of her conduct could give rise to contempt without more. It was not unlawful or improper for members of the public, including jurors or potential jurors, to know about jury equity or be made aware of it outside the court precincts. No interference with the administration of justice was caused; all that was required by way of “antidote” was the short direction delivered the following day, and the material ordinarily provided to jurors (standard jury video, jury notice, and directions from the trial judge) was sufficient to counteract the placard. They submitted that the allegation of common law contempt (involving as it did publication of a placard commenting on important policy issues) must be subject to at least the same restrictions as the statutory contempt regime under the 1981 Act, and Ms Warner could not be deprived of the safeguards in that statutory scheme by a common law charge, since those safeguards were intended to render interference occasioned by the common law of contempt compatible with Article 10 ECHR. Finally, they argued there was no evidence of actual or risked serious interference with the administration of justice, still less a substantial risk that the course of justice would be seriously impeded or prejudiced as required under the 1981 Act.

Saini J came to the firm conclusion that the Solicitor General’s case did not disclose a reasonable basis for committal. He gave four principal reasons. First, the species of contempt based on the principle that jurors should be free to attend court without being molested, assaulted, threatened or hindered had no application. At no point did Ms Warner assault, threaten, block, accost or impede anyone’s access to court. The only relevant interaction was with people walking past who chose momentarily to look towards her and potentially read the placard voluntarily as she passively held it. This was far from a case of confronting defendants and questioning them in an intimidating manner in aggressive and provocative terms as in Yaxley-Lennon. In Runting, even pursuing a defendant to take a photograph, to the extent he collided with scaffolding, was held not sufficiently grave to amount to contempt; the court held the behaviour was undoubtedly offensive, rude, uncivilised and reprehensible, but fell short of acts objectively capable of amounting to interference sufficient to constitute the actus reus. It was fanciful to suggest Ms Warner’s behaviour fell into this category of contempt, which is limited to threatening, intimidatory, abusive conduct or other forms of harassment whether physical or verbal. The judge rejected the arguments that Ms Warner “confronted” jurors or “followed two (suspected) jurors to intercept them”, holding these submissions significantly mischaracterised the evidence. The CCTV did not disclose a reasonable basis on which a court could be sure of those matters; to the contrary, it showed Ms Warner holding the placard in a strikingly unobtrusive manner, and only hurrying alongside two individuals around 9.00am to get back into her previous position along the perimeter, never following or intercepting either woman or waving the placard at them or otherwise trying to grab their attention.

Second, the placard did not present an “instruction or encouragement” or constitute a “plain invitation” to discharge duties in a particular way. There is a distinction between instructing, encouraging or inviting an individual to undertake a particular course on the one hand, and informing them of a particular course arguably open to them on the other. Ms Warner’s behaviour was in the latter class, as evident from the text of the placard, which was informative and did not implore jurors to act or give an instruction but simply communicated the principle of jury equity in a way not far from Lord Bingham’s description in Wang and similar to the Old Bailey plaque. It did not suggest jurors should exercise their right to acquit according to conscience, just that it was a power they have, a power seemingly accepted by the Solicitor General. Ms Warner’s behaviour towards passers-by was consistent with information sharing. She did not gesture towards anyone, wave the placard, hold it above her head, attempt to attract attention,

HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (QB)
R v Goncalves [2011] EWCA Crim 1703; [2013] 2 Cr App R 14
R v Wang [2005] 2 Cr App R 8
Attorney General v Kasim Davey and Joseph Beard [2013] EWHC 2317 (Admin)
Attorney General v C rosland [2021] 4 WLR 103
Jordan [2024] EWCA Crim 229
R v Owen [1976] 1 WLR 840
Re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32
Hammond v Governor of Winchester Prison [2024] EWHC 91 (Admin)

Webster & Others [2026] EWCA Crim 9
Re Rajiv Menon KC (Crown Court at Woolwich, 22 June 2026)