Lance Jamieson Christie v Weavabel Group Limited [2025] EWCA Civ 644

[2025] EWCA Civ 644Case No CA-2024-002579B
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2024] EWHC 2298 (KB)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KINGS BENCH DIVISION
Mr Justice Cotter
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/05/2025
Before
LORD JUSTICE COULSONLORD JUSTICE ARNOLDLORD JUSTICE WARBY
Between
Lance Jamieson ChristieAppellantWeavabel Group LimitedRespondent
Joshua Hitchens (instructed by Janes Solicitors LLP) for AppellantJeremy Reed KC (instructed by Brown Rudnick LLP) for RespondentHearing Hearing date: 8 April 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 16 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]Introduction Pursuant to a judgment dated 6 September 2024 at [2024] EWHC 2298 (KB), Cotter J (“the judge”) found the appellant guilty of 13 of the sampled 16 contempts of court. On 1 November 2024, he was sentenced to two weeks’ imprisonment, suspended for one year. Because this is a contempt case, he appeals as of right There is an argument that he requires permission to appeal on Ground 2. I address that point at paragraph 50 below. . For the reasons set out below, had there been the usual filter provided by a permission to appeal mechanism, I am confident that permission to appeal would not have been granted.[2]The short answer to this appeal is that the judge carefully considered the evidence and applied the correct principles of law. The main point of principle which was raised before the judge, and originally advanced under ground 1 of this appeal was, as explained at paragraphs 30-38 below, so significantly modified at the hearing of the appeal itself that it all but disappeared. The remaining complaints amounted to little more than an attempt to reargue certain parts of the case, without engaging with the judge’s careful consideration and treatment of those same issues. On one view, that brief summary should be sufficient to dismiss this appeal.[3]However, the appellant would argue that he is entitled to an answer to each of the points that he has raised. It is therefore necessary to go through the process of identifying the relevant parts of the background, the detail of the judgment below, and then considering each of the various grounds of appeal. The conclusion of that lengthier exercise is the same as that produced by the short-cut: the appeal must be dismissed. It just takes longer to get there. The reader of the remaining parts of this judgment may react with some incredulity at the subject-matter, but it is to be borne in mind that this is a family which has been damaged, perhaps irrevocably, by the events I now summarise.[2]The Background Facts[4]On 1 April 2017, Ms Marileen Vugts made a complaint of sexual misconduct against the appellant who, at the time, was a member of the Plymouth Brethren Christian Church (“PBCC”). He was also the managing director of the respondent, which is a PBCC-affiliated company. In July 2017, her complaint led to a multi-party settlement agreement which, amongst other things, included a term that the appellant must not make any derogatory comments about other parties, including the respondent’s directors, officers, employees or consultants. That included, inter alia, his wife, Deborah, and sons, Jed and Josh.[5]In October 2017, the appellant was expelled from the PBCC. It is their long-standing rule that members of the PBCC must have no contact with excommunicated members. Since Deborah, Jed and Josh all remain members of the PBCC, the appellant was unable to have further contact with them. As a result of his expulsion, he began a campaign to expose what he considers to be the inappropriate culture and practice of the PBCC.[6]Thereafter, there have been proceedings in the Family Court, criminal proceedings, and commercial proceedings brought by the appellant against Deborah and another company, Focus Branding Limited, of which the appellant had been a director, from which position he said he was wrongfully removed. More significantly for present purposes, it was alleged that the appellant had acted in breach of the July 2017 settlement agreement because he made derogatory comments about Ms Vugts and his son Jed, a director of the respondent company. Thus it was that the respondent commenced the present claim, together with Ms Vugts, to enforce the terms of the July 2017 settlement agreement.[7]The claim brought by Ms Vugts was settled by the appellant, but the respondent’s claim went to trial on 14 November 2023 in front of His Honour Judge Gosnell, then the designated civil judge in Leeds.[8]The appellant was represented by solicitors and counsel at the trial. His principal defence was that, pursuant to Article 10, he was permitted to make derogatory comments about whomsoever he liked, notwithstanding the terms of the July 2017 settlement agreement. In that connection, one of the oral submissions made by counsel on his behalf was that, because he wanted to “shine a light on his experiences more broadly in the context of how Plymouth Brethren businesses are owned…it’s very difficult for him to do that without possibly it being said that he is being derogatory.”[9]Judge Gosnell immediately picked up on that submission, and made it clear that, in his view, it was plainly not impossible for the appellant to explain how he was expelled from the respondent’s business, without using derogatory terms about his ex-wife or his sons. The judge’s observation, that the appellant’s campaign against the PBCC could be maintained without his making such derogatory comments, was expressly accepted by his then counsel.[10]On the second day of the trial, 15 November 2023, the appellant settled the claim brought by the respondent. That settlement agreement included an undertaking which the appellant gave to the court, in the following terms:
“AND UPON the First Claimant and the First Defendant having agreed to settle the claim on the terms of this order and undertaking. AND UPON the First Defendant, Mr Lance Jamieson Christie, hereby UNDERTAKING to the Court and to the First Claimant that he will not (whether by himself, his servants, his agents, or otherwise howsoever) make any derogatory comments about Weavabel Group Limited, the Weavabel Partnership (a firm), the Weavabel business, Deborah Christie, Jed Christie, Josh Christie, Stefan Christie, Alicia Christie, Beatrice Christie, or any of them.”
[11]Judge Gosnell was anxious to ensure that the appellant understood the meaning and effect of this undertaking. There was a direct exchange between Judge Gosnell and the appellant, in which the appellant expressly accepted in open court that he understood the implications of what he had promised.[12]It was alleged that, less than a week after the undertaking had been given, the appellant sent an email which was in breach of the undertaking. The respondent’s solicitors wrote to their opposite numbers to point this out and, although the appellant’s solicitors denied that the email comprised a breach of the undertaking, they confirmed that the appellant would not in the future make derogatory comments in breach of the undertaking. That event did not form part of the subsequent contempt application.[13]In that application, the respondent alleged 59 contempts by way of breach of the undertaking set out in the order of 15 November 2023. Contempts 1-19 related to an email of 8 January 2024 which the appellant sent to at least 136 people, which contained hyperlinks to various documents. In those hyperlinked documents, he described his son Jed and his ex-wife Deborah as liars, and purported to give details of the deliberate lies that they had told.[14]Contempts 20-56 arose out of an email sent by the appellant on 25 January 2024 to a much larger group of people, about 1336 people in all, who were all members of the PBCC. The email contained direct assertions that Deborah, Jed and another son, Josh had all borne false witness at earlier hearings: that they were in effect perjurers and liars.[15]Leaving aside the 57th and 58th contempts, the 59th contempt was a YouTube video uploaded by the appellant to his YouTube channel which again said that Jed was a liar and gave untruthful and irrelevant evidence in the criminal proceedings.[3]The Trial and the Liability Judgment[16]The trial of the contempt allegations took place before the judge on 29 and 30 July 2024. For reasons of proportionality, the original 59 alleged contempts were dealt with by reference to 16 sample allegations.[17]The judge heard oral evidence on behalf of the respondent from Ms Charlotte Harris, a barrister, who was questioned on a range of issues. The judge also allowed the appellant to rely on witness statements from Dr Aebi-Mytton and Mr Hastie. These statements were produced just a few days before the liability hearing, and far outside the date directed by the judge. The judge was dubious as to the admissibility and relevance of this evidence (see [56] of his judgment) but permitted it to be adduced. Dr Aebi-Mytton was a chartered psychologist who was formerly a member of the PBCC. She therefore had experience of the effects of leaving the PBCC and had written a number of papers about them. Mr Hastie was a researcher who gave general evidence about what he had been told by others about the PBCC and the purported autonomy of those within it.[18]Neither of these witnesses could give any direct evidence of fact relating to the alleged contempts. They were not put forward as (and patently were not) expert witnesses. At the trial, on behalf of the respondent, Mr Reed KC made plain that the material in the statements was not accepted but, because he said the evidence was in any event irrelevant, he did not cross-examine either of them.[19]The appellant did not give evidence in his own defence. In consequence, the respondent asked the judge to draw an adverse inference in relation to one specific issue, raised by the appellant, that he did have the necessary mens rea in respect of the documents attached to his email of 8 January 2024. The judge considered this aspect of the case at [57]-[61] and concluded at [62]:
“62. Mr Lance Christie could have given evidence on the issue of whether he intentionally breached the order (given that this is something he has put in issue). Mr Hitchens submitted that the Claimant was “put to proof” that the Mr Lance Christie intended to include the “Does Truth Matter” document in the email sent on 08 January 2024. Given that he had intentionally inserted hyperlinks to the document (a step which requires specific steps to be taken) it is the Claimant’s case that it is obvious and beyond any doubt that he intended to do so. In my view on this issue (and solely this issue) his decision not to give evidence could lend some weight to the Claimant’s argument; so an inference could be drawn. However the reality is that as I shall set out in due course I satisfied to the criminal standard that Mr Lance Christie intentionally made reference to the document in the absence of the inference.”
[20]A raft of points was taken on behalf of the appellant at the trial in defence to the contempt allegations. Not all of those have survived for consideration by this court. However, it seems to me appropriate to set out parts of the lengthy paragraph [66] of the judgement because that contains the kernel of the judge’s views on matters that are directly relevant to the appeal:
“I shall first set out my conclusions on some overarching matters which are relevant to the various arguments advanced by Mr Hitchens: (a) The undertaking given was part of the order by consent. Put another way it formed part of the effective cost to Mr Lance Christie of the settlement reached between the parties. The promise given was entirely voluntary and it matters not that he may now regret having made this solemn promise to the Court; or has now been advised that he could/should have contested issues then before the Court. Were Mr Lance Christie’s arguments to succeed i.e. if a Court were to find that he has a right to make derogatory comments about his family it would render the undertaking he gave largely meaningless and valueless and would necessarily open up the compromise reached as the Claimant could not be properly held to its side of the bargain reached… (b) The arguments advanced by Mr Hitchens as to Mr Lance Christie’s Article 10 rights and specifically that true and accurate criticism of his family was necessary to enable proper criticism of the PBCC (because the conduct of his family) in turning against him can only be explained by the practical and psychological influence leaders of the Church have over them, were raised in the proceedings before His Honour Judge Gosnell. As can see be seen from the exchange with Counsel set out above the Judge had very considerable difficulty with the propositions advanced on behalf of Mr Lance Christie in this regard (as, for what it is worth, do I). As Ms Harris stated, and contrary to the submissions of Mr Hitchens, Mr Lance Christie clearly did not, and does not, need the skill of a lawyer to be able to carefully make any criticisms of the effects of the principle of separation without his comments straying into being derogatory of his family and in so doing triggering a legal landmine. In any event, and in my view unarguably, in choosing to settle the action and give the undertaking Mr Lance Christie formally and unequivocally gave up his right to pursue these arguments. Mr Hitchens made very detailed submissions about the effect of the undertaking on Mr Lance Christie’s Article 10 rights, but in so doing he ignored the effect of his arguments upon the rights of others. Importantly, as the Court did not determine the matter, the Claimant was denied the opportunity to gain an order protecting the Article 8 rights of Mr Lance Christie’s family and a ruling that protection from derogatory comments did not improperly infringe Mr Lance Christie’s Article 10 rights. Without seeking to be released from the undertaking (he could not appeal) Mr Lance Christie now wishes to rely on these arguments in defence of his actions (which are alleged to have been in direct contradiction of the undertaking). The unfairness of this approach is both very obvious and very significant. It would also be a paradigm breach of the principle of finality in litigation. It is simply not open to Mr Lance Christie to argue that his Article 10 rights are engaged on this committal and that they require that it be dismissed. Put simply that ship sailed away when he voluntarily gave the limited undertaking not to make derogatory comments about his family. (c) Were Mr Lance Christie’s Article 10 rights to be in issue the necessary balancing exercise would in any event weigh overwhelmingly in favour of holding him to his undertaking. I accept Mr Hitchens’ submission that the right to freedom of expression is a convention right of fundamental importance. However, as Sharp LJ observed in Mionis, Article 10(2) permits restrictions on that right for the protection of the reputation and rights of others, which includes the private rights of the parties (here the rights of Claimant under an otherwise validly constituted contract of settlement). The issue becomes one of proportionality i.e. whether the relevant restrictions are a disproportionate interference with Article 10 rights. In my view there is nothing remotely disproportionate, in holding Mr Lance Christie to his compromise and formal promise to the Court. There is very considerable public interest in parties to litigation being held to enforce the terms of a settlement freely entered into, a fortiori when the Article 10 argument itself has been specifically raised. As I have set out Mr Lance Christie agreed to curb his right to free speech in only a limited and very personal way which left him with no impingement on his ability to criticise others. (d) The undertaking was made with carefully carved out exceptions to ensure that Mr Lance Christie is not prevented from making obviously legitimate comment in certain circumstances. This shows the keen focus at the time of compromise on what could be said and what could not be said. In such circumstances there is obvious difficulty with Mr Hitchens' argument that ensuring that Mr Lance Christie does not make derogatory comments is not the dominant purpose behind the current application. Also the bringing of committal proceedings for the purpose of achieving the natural consequences of the litigation a fortiori the Claimant's main aim within the original action cannot be an improper purpose. (e) The undertaking does not prevent Mr Lance Christie making comments about the PBCC/Plymouth Brethren members. Although it is clearly the case that Mr Lance Christie and some of his supporters would wish to portray this application as another attempt by the PBCC to silence a critic of the Church and prevent legitimate comment about its practices and activities the undertaking does not even mention the Church. The content of some of the lengthy documents produced by Mr Lance Christie since he gave the undertaking includes some wide-ranging attacks upon the PBCC and what he believes to be the improper activities of its leaders. However it is not, and could not ever be, part of the Claimant’s application that Mr Lance Christie’s critical opprobrium breached the undertaking. Subject to the laws of defamation, and the criminal laws in relation to harassment and malicious communications in this country and any other relevant country, Mr Lance Christie can air his views about the PBCC/Brethren members without any restriction save only that it must not involve derogatory comments about his family. That is the limited extent of his promise; it goes no further. I should add that when it is argued that the Claimant has an ulterior motive in bringing this application it is difficult to see what the Claimant could hope to achieve beyond holding Mr Christie to his own solemn promise. I cannot accept the argument that the true motive of the application is to prevent Mr Lance Christie commenting generally about the Brethren as he has done so and remains free to do so. In reaching this conclusion I do not underestimate the public interest in the rules and practices of religions and their effects on adherents or the wider public. Criticisms of the beliefs and practices of certain faiths by those of other faiths, or no faiths at all, has been a consistent feature of history since the first beliefs in a supernatural realm beyond the ordinarily observable world. Whilst Mr Lance Christie wishes to focus on the validity, the truth as he sees it, of his criticisms of the PBCC and to persuade me that he is battling a malign influence, he fundamentally misunderstands and underestimates the importance of upholding the rule of law and fundamental to its effectiveness is that the Court’s orders (and promises to the Court) are obeyed. A hole in that principle would mean the ship would be lost. My central focus when determining this application has at all times been whether or not Mr Lance Christie deliberately breached his promise to the Court, that promise, it bears repetition, being limited to not making derogatory comments about his own family. (f) …He directly accuses them [his family] of breaking the ninth commandment. In his document “Does truth matter”
(at page 44) Mr Lance Christie sets out a number of “Scriptural pointers for genuine seekers after the truth”, including that “idolators and all liars, their part is in the lake which burns with fire and brimstone; Revelation 21v8”. It is difficult to see being condemned to spend the afterlife in Hell as a trivial matter. In any event I do not need direct evidence of harm to conclude that being called a liar and perjurer is clearly derogatory, offensive and far from trivial. I shall deal with other alleged contempts in due course. (g) When considering intention (or the potential lack of it) it is not in issue that Mr Lance Christie chose to write the emails and chose to send them. He also chose to provide a link to other documents also written by him, and uploaded to the internet by him. Having considered all the evidence I do not accept that it is a realistic suggestion that he somehow forgot what he had previously written and the serious allegations that he had made against his own family; including calling his own sons liars and perjurers. It was a central focus of his critique. I am satisfied to the criminal standard, without reliance on any adverse inference, that the relevant acts complained of were not inadvertent, accidental, or unintended…”[21]As to the judge’s particular findings on other matters which are relevant to the appeal, I shall set those out when I consider the individual grounds below.[4]The Grounds of Appeal[22]The grounds of appeal were in the following terms:
“1. The Appellant appeals as of right against the order of Mr Justice Cotter dated 01 November 2024 on the following grounds. GROUND 1: Article 10 of the Convention 2. The judge made the following errors of law in his approach to Article 10 of the Convention: (a) The judge was wrong to hold that the Article 8 rights of the Respondent or its officers were engaged. (b) The judge was wrong to find that Mr Christie was “simply not entitled” to rely on his Article 10 rights in circumstances where the Appellant had a statuary right pursuant to s.7 Human Rights Act 1998 to do so and the Court had a positive duty under s.12 Human Rights Act 1998 to have proper regard to the Appellant’s Article 10 rights. (c) The judge misunderstood the dicta of Mionis v Democratic Press [2017] EWCA Civ 1194. At paragraph 65 Sharp LJ specifically rejected the suggestion that Article 10 was “irrelevant” because the Appellants in that case had signed an agreement which required them not to publish material. On the contrary, the Court indicated that a party cannot waive their Article 10 rights and that the Court has a “policing” jurisdiction to uphold Article 10 rights even where the parties have contracted out of it. The judge’s conclusion that “Christie agreed to curb his right to free speech” is therefore simply wrong in law. (d) The Court’s assessment of proportionality, undertaken on an “in the alterative” basis was utterly insufficient. The judge referred to none of the authorities concerning the scope of Article 10 interferences in matters of public interest, or the Court’s special role as a guardian of freedom of expression and the proportionality balancing exercise extended to just one paragraph. (e) The judge failed to give any weight to the obvious chilling effect on the Article 10 rights of Mr Christie and other leavers of the PBCC stemming from a finding of contempt. 3. Further, the judge’s obiter assessment of proportionality was wrong insomuch as the judge failed to identify that the interference with the Appellant’s Article 10 rights stemming from the Court’s order was disproportionate and unlawful. Ground 2: Mens Rea 4. The judge was wrong to conclude that the Appellant intended to include derogatory comments about his family members in the 08 January 2024 email. There was no evidence upon which the judge could be satisfied to the criminal standard that the Mens Rea for contempt of court was made out in respect of the 08 January 2024 email. Ground 3: Improper Collateral Purpose 5. To the extent he reached a conclusion, the judge was wrong to conclude that the proceedings did not amount to an abuse of process on the ground they had been brought for an improper collateral purpose. The judge erred in law in his approach to this issue and failed to give any/sufficient regard to the Appellant’s evidence. Ground 4: Sentence Manifestly Excessive 6. The judge erred in concluding that the custody threshold had been passed. In particular: (a) The judge erred in law in applying sentencing guidelines for breaches of Anti-Social Behaviour Injunctions without adjustment. (b) The judge erred in law in finding that the contempts arising out of the 24 January 2024 email were medium harm offences. 7. In any event, in all the circumstances, the sentence was manifestly excessive.”
GROUND 1: Article 10 of the Convention Ground 2: Mens Rea Ground 3: Improper Collateral Purpose

Ground 4: Sentence Manifestly Excessive

[23]I shall deal with those grounds of appeal in that order. However, before I do, I should make one overarching observation.[5]Overarching Observation[24]Throughout, Mr Hitchens was anxious to portray the appellant as a fearless campaigner against the PBCC, determined in the public interest to shine a light on their practices and, in particular, the way they deal with people who leave the PBCC or (as in the appellant’s case) are expelled from it. The underlying suggestion was the same as that advanced to both Judge Gosnell and the judge in the High Court contempt trial: that the appellant cannot do that without making derogatory remarks about his wife and sons, and that therefore to deny him his Article 10 right to freedom of expression had a chilling effect on his ability (and the ability of others) to criticise the PBCC.[25]Like both judges before me, I consider that argument to be misconceived. There is a world of difference between, on the one hand, writing articles and expressing trenchant views about the PBCC Something that has been done in Britain since the PBCC was founded two hundred years ago. Indeed, Plymouth Brethren have always been quick to criticise each other: the first major schism in the church happened in 1845, just 20 years after its foundation. , and, on the other, making derogatory remarks about your ex-wife and your own children. The latter is wholly irrelevant to the former. Judge Gosnell did not accept that the two went hand in hand: he said so, and that proposition was expressly accepted by the appellant’s then counsel. The judge did not accept that it was impossible for the appellant to campaign against the PBCC without making derogatory remarks about his wife and son: see in particular [66(b) and (e)]. Perhaps most importantly of all, the appellant agreed that it was not impossible, because he not only gave the undertaking in the first place, but expressly confirmed to Judge Gosnell that he understood the consequences. Still further, in the statement that he provided for the sanctions hearing, the appellant promised not to make derogatory comments in future, but plainly still intends – as is his right – to continue his campaign against the PBCC.[26]Accordingly, there was and can be no “chilling effect” as a result of enforcing the undertaking, either on the appellant, or on anyone else. The appellant has the right under Article 10 to continue his campaign against PBCC. But it is emphatically no part of any proper exercise of those rights to make any derogatory remarks about his ex-wife or children at all.[6]Ground One: Article 10 of the Convention 6.1. The Judgment[27]In addition to the passages at [66(a)-(c)], set out at paragraph 20 above, the judge dealt with the Article 10 defence at [86]-[89] as follows: “86. Article 10 of the European Convention on Human Rights reads: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...” 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”87. As I indicated during submissions, I am content to proceed on the basis that Mr Lance Christie’s evidence establishes that the activities of fundamentalist religious groups in the United Kingdom are a matter of genuine and profound public and political concern. However as I have already set out there is no scope for an Article 10 argument given the compromise reached. Further, if I was to be wrong and a proportionality exercise is required the balance falls overwhelmingly in favour of holding Mr Lance Christie to his promise.88. The submission that a finding of contempt would have (and is intended by the Claimant to have) a chilling effect on the Article 10 rights of other potential critics of the PBCC is wholly misconceived. Provided that they are not subject to any order or undertaking they cannot conceivably face an application for contempt.89. The argument that a finding of contempt would taint, rather than promote the administration of justice is also plainly wrong. To allow a person to make an undertaking and then choose to ignore it would severely undermine the administration of justice.” 6.2. Submissions[28]On behalf of the appellant, Mr Hitchens’ principal point in his written submissions was that the judge had misunderstood the decision of this court in Mionis v Democratic Press SA [2017] EWCA Civ 1194; [2018] QB 662(“Mionis”)when he rejected the argument that the appellant’s Article 10 rights trumped the undertaking that he had given to the court. He also complained that the judge’s assessment of proportionality was insufficient, in part because it failed to give any weight “to the obvious chilling effect on the Article 10 rights of Mr Christie and other leavers of the PBCC stemming from a finding of contempt”.[29]On behalf of the respondent, Mr Reed KC said in his skeleton argument that the judge had applied the correct principles of law and that allowing the appellant to advance an Article 10 defence in breach of an undertaking was contrary to the principle of finality in litigation. He also made detailed submissions as to why the proportionality balance plainly fell out in favour of the respondent.[30]The above is a short summary of the submissions in counsel’s respective skeleton arguments on appeal. They reflected the principal battleground at the trial, where Mr Hitchens had sought to utilise Article 10 as a defence to liability (i.e. that Article 10 permitted the appellant to make the derogatory comments). However, during the course of his oral submissions on appeal, Mr Hitchens rowed back significantly from that stance.[31]In those oral submissions, Mr Hitchens accepted, in answer to separate questions from each of my Lords, that he could not so deploy Article 10. He conceded that Article 10 could not be an answer to the question of the appellant’s liability for contempt. His refined submission was that the judge should have had regard to the proportionality test imported by Article 10 at the sanctions hearing, when he was considering committing the appellant to prison for contempt. He said Article 10 was relevant to “the making of a committal order”: in other words, as he expressly accepted, Article 10 was relevant to sanction, but not to liability.[32]In my view, although this meant that much of what Mr Hitchens had argued at trial and in his appeal skeleton argument had been wrong, that concession was rightly made. I am in no doubt that, in circumstances such as these, Article 10 cannot provide any sort of defence to allegations of contempt of court. For the avoidance of doubt, I explain the reasons for that below. 6.3. Discussion[33]The leading case on the interplay between a settlement agreement, which contained terms prohibiting the making of particular comments, and the right to freedom of expression under Article 10, is Mionis. There the defendant reached a confidential settlement agreement with the claimant which forbade him from making any references to the claimant and his immediate family. Although the judge at first instance had thought that the relevant clause was too vague to be enforced, this court allowed the appeal on the basis that it was an enforceable term. That was the ratio of the case. This court also dismissed the defence based on Article 10, primarily because of the same term in the settlement agreement. It is important to note that Mionis was not concerned with undertakings given to the court or allegations of contempt. It was a case where the agreed term of the settlement agreement alone was, on the facts, enough to trump the Article 10 defence.[34]Sharp LJ (as she then was) analysed the interplay between a private settlement and an Article 10 claim, and made plain the very limited room for manoeuvre that a defendant has to deploy Article 10 as a defence in those circumstances. She said:
“67 …However, the fact that the parties have entered into an agreement voluntarily restricting their article 10 rights can be, and in my judgment in this case is, an important part of the analysis which section 12 then requires the court to undertake. Whilst each case must be considered on its facts, where the relevant contract is one in settlement of litigation, with the benefit of expert legal advice on both sides, particularly where article 10 issues are in play in that litigation, it seems to me that it would require a strong case for the court to conclude that such a bargain was disproportionate and to refuse to enforce it other than on ordinary contractual or equitable principles (my emphasis)… 89 I would add that settlement does not only serve the private interests of the litigants, but the administration of justice and the public interest more generally, by freeing court resources for other cases. The law therefore encourages and facilitates the mutual resolution of disputes by various means, for very sound reasons of public policy; and there is obviously an important public interest in the finality of settlement. 90 The parties in this case decided, with the benefit of expert legal advice on each side, to enter into a contract that compromised their legal proceedings. They chose to do this, using the settlement mechanism of a Tomlin order, and thus converted their putative rights and/or liabilities in the litigation into a contract. The implications (and advantages to litigants) of using the mechanism of a Tomlin order are easy to comprehend: settlement is facilitated as it can be on confidential terms which go beyond the boundaries of the claim; and in the event of a breach of those terms, enforcement can take place within the existing action by a summary procedure, in which an application can be made to convert the contractual obligations into ones enforceable by judicial process. If the order made by the court is breached, then enforcement can follow in the usual way. It is generally no part of that enforcement process to litigate or revisit the underlying merits of the dispute that gave rise to the litigation in the first place (my emphasis). 91 Parties are of course generally free to determine for themselves what primary obligations they accept; and legal certainty requires that they do so in the knowledge that if something happens for which the contract has made express provision, then other things being equal, the contract will be enforced (pacta sunt servanda). This is a rule of public policy of considerable importance. Furthermore, the principled reasons for upholding a bargain freely entered into, obviously apply to one that finally disposes of litigation with particular force.”
[35]Sharp LJ also noted that Article 10(2) permitted restrictions on the right of free speech for the protection of the reputation and rights of others which would include the private rights of the parties under a contract of settlement. The defendant’s rights under Article 10 did not trump the rights of the claimant under the terms of the settlement agreement. It would, as she said, require a “strong case” for that to be contemplated.[36]In the present case, not only was there a settlement agreement with the parties as per Mionis, but the appellant also gave undertakings to the court, of which he is now in breach. The question is whether that amounts to contempt of court. If you agree not to say X or Y as a result of a private law settlement of previous litigation then, as Mionis shows, it is very likely that you will not be able to rely on Article 10 as a defence if you then breach the term and say X or Y. But that will be a fortiori in circumstances where you undertake to the court not to say X and Y, but go ahead and do so anyway. If, as here, there is no challenge to the validity of the agreement or the undertakings it is hard to see how Article 10 could be an answer to an allegation of contempt. The appellant no longer seeks to argue that the contempt proceedings are an abuse. He remains free to criticise the PBCC. In those circumstances, as a defence to an allegation of contempt of court, I consider reliance on Article 10 to be untenable.[37]For these brief reasons, I consider that Mr Hitchens was right to concede that Article 10 could not go to the issue of the appellant’s liability for contempt; that it could not provide him with a defence to the allegations made by the respondent. That is what the judge found. Accordingly, the principal point under ground one in the Appellant’s Notice falls away.[38]That leads to the final, much narrower point, namely whether the judge failed to undertake the proportionality exercise required by Article 10 at the sanctions hearing, when he was considering imposing a custodial term. 6.4. Proportionality and the Sanctions Hearing[39]We do not have an official transcript of the judge’s judgment at the sanctions hearing: unknown to everybody, the recording mechanism in court was not working. As I observed during argument, this is the third appeal in recent weeks over which I have presided where an important judgment or ruling of the court below was not available because of the failure of the equipment. HMCTS must appreciate that the absence of functioning recording equipment undermines the rule of law and causes unnecessary additional work for everyone involved (except perhaps HMCTS). Here the parties had to prepare and agree a detailed Note of the judge’s remarks, and then the judge had to set aside time to check and approve that Note.[40]The outcome of the sanctions hearing was that the judge regarded contempt 20 (a shorthand reference for the 20th to 46th contempts) arising out of the email of 25th January as warranting a sanction of 14 days custody, suspended for a year. He said that none of the other contempts passed the custody threshold, and that in the circumstances, no separate penalty for those contempts should be imposed.[41]I accept that, at a sanctions hearing where the point is raised, the judge should have regard to proportionality under Article 10. That might be said to be in accordance with the court’s ‘policing’ duty as per Mionis and the earlier decision of the European Court of Human Rights in Handyside v UK (1976) 1 E.H.R.R. 737 at [49]. But as I pointed out in argument, the judge at a sanctions hearing in a contempt case will have regard to the proportionality of the proposed sanction in any event, so those cases where the proportionality balance under Article 10 is likely to play an important role in determining the sanction (as something separate and distinct from proportionality simpliciter) seem to me to be vanishingly small.[42]Moreover, it is clear from both the liability judgment and the agreed Note that the judge had full regard to issues of proportionality when considering the relevant sanction. He referred to proportionality generally in his liability judgment at [66(c)] and [86]-[89]. Moreover, as set out in the Note, at the sanctions hearing he expressly considered culpability, harm and all relevant matters of mitigation. What might be called the appellant’s side of the proportionality balance overlapped with the points in mitigation which the judge accepted. Examples include: i) the judge’s observation at paragraph 32 of the Note that the appellant had a “misguided belief that by criticising the church he could somehow reconcile with the very family members he was also making derogatory comments about”; ii) the judge’s observation that there was force in the submission that leavers from the PBCC “can have an unduly high self-perception of their importance” (paragraphs 36 and 37 of the Note); iii) his finding that there were some psychological issues at play (paragraph 43 of the Note); and iv) his conclusion that the appellant was not a conventional law breaker but rather motivated to prove matters as he saw them (paragraph 46 of the Note). In that same paragraph, the judge expressly referred to the appellant’s rights under Article 10.[43]But the tenor of both the judge’s judgment on liability and the Note was that, despite these points, any consideration of the other side of the balancing exercise led to the inevitable conclusion that it was wholly disproportionate for the appellant to continue his campaign by making derogatory remarks about his ex-wife and sons. That was because the making of such comments was wholly unnecessary for the purposes of the campaign against the PBCC (see [66(e)], and the Note at paragraphs 2 and 5). Moreover, the derogatory comments were far from trivial: although that submission had been one of the appellant’s unsuccessful defences at trial, it forms no part of this appeal. Moreover, as the judge also noted, the appellant had not only bought off the private law claims against him by promising not to do it again but, more importantly, had promised the court both in writing and orally that he would not do it again. In all the circumstances, the rights of his ex-wife and sons entirely outweighed the appellant’s rights under Article 10, to say nothing of the attack on the court’s authority as a result of the repeated contempts. The judge concluded that this meant that the custody threshold had been passed and a custodial term was proportionate.[44]On that last point, Mr Hitchens submitted that, if the judge had had proper regard to the proportionality exercise required by Article 10, he would not have imposed a custodial term. I note that this was not a specific submission which was made to the judge at the sanctions hearing itself. But, to the extent that this was advanced as a point of principle, I consider it to be wrong. There is no reason why, having undertaken the proportionality exercise, a custodial term was somehow automatically prohibited and, say, a fine or some other sanction was mandated. It simply does not follow that, if the custody threshold had otherwise been passed, the proportionality balance required by Article 10 meant it had to be re-crossed in the other direction.[45]For all these reasons, I consider that the judge undertook the necessary proportionality balance when considering the appropriate sanction. Furthermore, I consider that the sanction imposed (two weeks imprisonment suspended for a year, in respect of the 20th contempt only) was not only one that was open to the judge but was one which, for the reasons adumbrated under ground 4 below, might be considered to have been generous to the appellant. It was, on any view, proportionate.[46]Accordingly, in my view, there is nothing in the (significantly modified) ground one of the appeal.[7]Ground Two: Mens Rea and the 8 January Email 7.1. The Judgment[47]The judgment as to the adverse inference is set out at [62], set out at paragraph 19 above. The other relevant finding, that the judge was satisfied to the criminal standard, without reliance on any adverse inference, that the relevant acts were not inadvertent, accidental or unintended, is at [66(g)], set out at paragraph 20 above. 7.2. Submissions[48]On behalf of the appellant, Mr Hitchens submitted that there was no evidence of intention in relation to the email of 8 January and the documents attached. He submitted that the judge was wrong to draw the adverse inference arising from the appellant’s failure to give evidence. In his written submissions, Mr Hitchens also relied on the subsequent statement which the appellant produced for the sentencing hearing in which he suggested that he did not intend to make the derogatory remarks by sending the 8 January email with its various hyperlinks. Mr Hitchens’ written submissions said that the judge had accepted this lack of intention at the sentencing hearing.[49]Mr Reed’s first submission was that, since this ground of appeal arose out of the 8 January contempts, for which no committal order was made, the appellant required permission in order to raise it at all. Mr Reed also argued that this was a hopeless appeal on the facts, which made no attempt to grapple with the judge’s reasoning and conclusions. As to the purported reliance on the appellant’s subsequent statement, Mr Reed said that it was wholly wrong in principle for the appellant to seek to rely on a statement he produced for a subsequent sanctions hearing, when the judge had already found that he had the necessary mens rea for this offence. 7.3. Discussion[50]In my view, Mr Reed was right to say that permission for this ground was required. Whilst an appeal against a committal order is allowed as of right, that extends only to the committal itself and therefore, in this case, to the 20th contempt which led to the committal order. In the absence of a permission filter, this court should guard against allowing appeals to be argued which are not caught by that strict rule.[51]Had an application for permission been made in respect of this ground, I would have refused it on the basis that it had no real prospect of success. It is also otiose, because it cannot affect the outcome, no separate sanction having been imposed for the 1st-19th contempts arising out of the 8 January email. I will set out briefly my reasons for these conclusions.[52]First, I am in no doubt that the judge was entitled to conclude, to the criminal standard, that the appellant intended to send the 8 January email and all the documents attached by way of hyperlink. The mere fact that it is a long letter hyperlinking a large number of documents, some of which also contained their own hyperlinks, is nothing to the point. It was all part of what the appellant considered to be his righteous campaign against the PBCC. Since the comments made about his ex-wife and sons were in very similar terms to things that the appellant had said before, and which he was to say again, it borders on the fanciful to suggest that the appellant did not intend to send that particular email with those particular hyperlinks, and therefore breach his undertaking. In those circumstances, I agree with [66(g)] of the judgment.[53]Although (contrary to Mr Hitchens’ submissions), the judge was careful not to decide that question on the basis of the adverse inference (see [62] set out at paragraph 19 above), it seems to me that that was another example of the judge’s generosity to the appellant. It might be said that, on this specific issue, the question of the appellant’s intention was within the peculiar knowledge of the appellant himself, and was therefore precisely the sort of topic on which he could have been expected to give relevant evidence. His failure to do so could properly have been the subject of an adverse inference on this specific issue. But in fact, the judge was clear that he decided the point without having regard to the adverse inference.[54]Mr Hitchens’ attempt to rely on the appellant’s subsequent statement is misconceived for two reasons. First, that statement was only provided to the court once the judge had found that the appellant had the necessary mens rea in respect of the 8 January email. It is wrong in principle to seek to rely on a subsequent statement to argue that the judge had been wrong to make that anterior finding; that finding was res judicata and could not be opened up at the sanctions hearing.[55]Secondly, Mr Hitchens was wrong to say in his skeleton argument that, in some way, the judge accepted the appellant’s lack of intention at the sanctions hearing. Paragraph 16 of the agreed Note records that the judge accepted that the appellant “was so caught up in his campaign that he did not give any adequate consideration to the references to his family and to the implications to the undertaking”. That is a long way from saying that the appellant did not intend to make those derogatory remarks in breach of the undertaking, much less that the judge accepted that lack of intention. To be fair to him, Mr Hitchens accepted in his oral submissions that his suggestion that the judge had accepted the lack of intention had been based on his own note of what the judge had said, and was not supported by the agreed Note. That too means that the point was hopeless.[56]For all those reasons, therefore, I consider that ground two is unarguable. 8 Ground Three: Improper Collateral Purpose 8.1. The Judgment[57]The judge dealt with this aspect of the case at [66(d)] (paragraph 20 above) and again at [84]-[85] in the following terms:
“84. Mr Hitchens submitted that: “it is not the role of the Courts (or lawyers) to act as an enforcer for a religious sect seeking to suppress criticism of its practices. On the contrary, as a matter of domestic law, the Courts owe a special responsibility to the public as the constitutional guardian of the freedom of speech.” 85. Subject to the criticism being otherwise legal, this statement is arguably a valid representation of general principle provided the assertions made within it were proved to be correct (for the avoidance of any doubt this does not mean that I have concluded that the PBCC is properly described as a sect, or as described elsewhere a cult as these matters were not issues before me). However, it misses the central issue within this application by a very wide margin. As I have explained Mr Lance Christie can make such criticisms of the PBCC as the laws of this and other countries permit and in holding him to the terms of his promise the Court cannot conceivably be described as an enforcer of anything other than that promise. Mr Hitchens fails to accurately portray the underlying proceedings when he states that they “…form part of a longstanding campaign to intimidate critics of the PBCC to deter them from further criticism of the organisation.”
The provenance of the undertaking lay in litigation in which protection of the PBCC played no part in the Claimant’s case. Mr Hitchens also submitted that:
“The Claimant’s lawyers are in reality PBCC’s lawyers, its witness is PBCC’s witness, and its case is PBCC’s case. It is difficult to conceive of an ulterior purpose more obviously outwith the proper scope of the legal process than the purpose of restricting, oppressing or deterring commentary on a religious sect accused of exploiting and harming vulnerable people. As such, the Court is respectfully invited to dismiss or strike out the application”
. However the Claimant’s lawyers act for the Claimant and their other clients are of no relevance to the matters before the Court. Also the only witness called was Ms Harris (and there was no suggestion that she was a member of the PBCC); so these broad assertions do not advance matters.” “it is not the role of the Courts (or lawyers) to act as an enforcer for a religious sect seeking to suppress criticism of its practices. On the contrary, as a matter of domestic law, the Courts owe a special responsibility to the public as the constitutional guardian of the freedom of speech.” “The Claimant’s lawyers are in reality PBCC’s lawyers, its witness is PBCC’s witness, and its case is PBCC’s case. It is difficult to conceive of an ulterior purpose more obviously outwith the proper scope of the legal process than the purpose of restricting, oppressing or deterring commentary on a religious sect accused of exploiting and harming vulnerable people. As such, the Court is respectfully invited to dismiss or strike out the application”. 8.2. Submissions[58]On behalf of the appellant, Mr Hitchens argued that the judge failed to consider that these contempt proceedings were being pursued by the PBCC, who have, he said, an extensive history of harassing former members of their church. He contrasted that with those former members of the PBCC who, he submitted, were not “effective litigators”.[59]In response, Mr Reed submitted that the judge’s approach to this issue was impeccable and that, as a matter of law, evidence of motive in contempt cases was irrelevant. 8.3. Discussion[60]I consider that the judge dealt fully with this issue at [60(d)] and [84] – [85] of his judgment. I do not consider that there is any scope for an appeal against those findings. There are a number of particular points that I would add.[61]First, the submissions on behalf of the appellant are again based on his right to campaign against the PBCC, and so fail to address the overarching point at paragraphs 24-26 above, namely that it is (and always has been) perfectly possible for the appellant to pursue that campaign without breaching the undertaking and making derogatory remarks about his ex-wife and his sons. The point about former members of the church not being effective litigators fails to recognise that, at every court hearing, the appellant has been represented by solicitors and counsel, at least some of that representation being at the public expense.[62]Secondly, Mr Hitchens urged this court to have full regard to the statements of Dr Aebie-Mytton and Mr Hastie, in order to demonstrate that these proceedings were an abuse of process, because the PBCC’s sole aim in bringing them was to stifle criticism. But although I have read that material, the submission ignores the fact that the judge considered this evidence in detail at [39]-[55] and concluded that it was irrelevant to the contempt application. That conclusion was open to him: indeed, it is the conclusion that I, too, would have reached. That is because the evidence is very general, and fails to address the specific issues raised by the contempt application. Indeed, Dr Aebie-Mytton rather loftily confesses:
“I don’t know what Lance has or has not done”
. That is nowhere near good enough, in circumstances where this contempt application is solely concerned with what the appellant has done: the derogatory remarks which he made about Deborah, Jed and Josh. The contempt allegations do not involve the PBCC, who are not the beneficiaries of the undertaking in any event. Accordingly, all that factual evidence (even if it was admissible, which I doubt) was nothing to the point.[63]Thirdly, since Mr Hitchens was very clear that he was not attacking either the original settlement agreement, or the validity of the undertaking given to the court, he had to accept that the underlying proceedings, up to the giving of the undertaking, were not an abuse of process. That meant that he was obliged to argue that it was only the attempt to enforce that valid undertaking that was an abuse of process. There is no precedent for such a suggestion. The authorities are concerned with the initiation and conduct of proceedings designed, not to vindicate a right, but for an ulterior purpose, so as to cause expense, harassment and prejudice: see by way of example Wallis v Valentine [2002] EWCA Civ 1034, and Kings Security Systems Limited v Anthony King [2021] EWHC 325 (Ch). Moreover, Mr Hitchens’ submission is entirely illogical: if the proceedings that gave rise to the undertaking were not an abuse, and if the undertaking itself was valid, it is very difficult to imagine any circumstances in which the simple enforcement of that undertaking could ever be an abuse of process.[64]Fourthly, I consider that Mr Reed was right to submit that in any event motivation in contempt cases is irrelevant. In Navigator Equities v Deripaska [2021] EWCA Civ 1799; [2022] 1 WLR 3656, Carr LJ (as she then was) explained that in a contempt case, the subjective motive was irrelevant to any consideration of an abuse of process by improper collateral purpose. Carr LJ said at [110]:
“In my judgment, for the reasons set out below, where a civil contempt application: (i) is made in accordance with the relevant procedural requirements; (ii) is properly arguable on the merits (by reference to the necessary constituents of a claim for contempt); and (iii) has the effect (and so at least the objective purpose) of drawing to the attention of the court to an allegedly serious contempt, then the fact that the application is motivated, whether predominantly or even exclusively, by a personal desire for revenge on the part of the applicant is not a good reason for striking out the application as an abuse of process.”
[65]Fifthly, whilst in any contempt proceedings, the court should be astute to detect when they are being used for illegitimate ends (see Vseukrainskyi Aktsionernyi Bank PJSC v Maksimov [2014] EWHC 4370 (Comm)), it might fairly be said that the reverse is applicable here. PBCC are not pursuing an illegitimate end: they are not even a party to the proceedings. All the respondent is seeking to do is to enforce the undertaking of which it is the beneficiary. For the reasons that I have explained, the respondent has all the merits in so doing, which is another relevant factor in its favour: see Navigator at [102]-[105]. Indeed, it might be said that it is the appellant who is abusing the process by promising to the court not to do something and then – at least until the appeal hearing – arguing that he was entitled to do it all along.[66]In short, I consider that there was no evidence that the PBCC were abusing the enforcement of this specific undertaking, that the appellant would not make derogatory remarks about his wife and sons, to stifle criticism of their organisation. There is nothing in this litigation for the PBCC: in my view, there was no advantage for them to be gained, just more potentially adverse publicity. Instead the enforcement of the undertaking was the natural consequence of the original proceedings and the settlement of those proceedings, as the judge explained at [73]-[75]. It could not therefore be an abuse of process by the respondent.[67]For those reasons, I consider that ground three of the appeal should be dismissed.[9]Ground Four: A Manifestly Excessive Sentence 9.1. The Judgment[68]At the sanctions hearing, the judge dealt with culpability, harm, and mitigation. As to culpability, the agreed Note says:
“16. I will first deal with the first broad category, the 1st to 19th contempts, which relate to the 8th of January email and the “Does Truth Matter” document. Having carefully considered the evidence, I proceed on the basis that he was so caught up in his campaign that he did not give any adequate consideration to the references to his family and to the implications of the undertaking – this is conceded at paragraph 12 of his statement for the purposes of this hearing. He did not sufficiently focus on the implications of some of the things that were in those documents. I also recognise that the matters in breach were only a limited fraction of the material that he made available I accept Mr Hitchens’ submission that these breaches were not flagrant and that culpability is low. 17. The 20th to 56th contempts are different. The email sent on 25 January contained derogatory comments within its body; that that his sons Jed and Josh were false witnesses. The fact that this statement was in the body, rather than materials attached, means it is a more serious breach. Mr Hitchens properly accepted that amounted to contempt in itself, and therefore that culpability is higher. 18. As to the final category, I have already given a clear indication that it is less serious. It was one comment within a long rambling discourse. Like with the first email, Mr Christie did not give adequate thought to the implications of what he was saying during the message.”
[69]As to harm, after considering various matters recorded in the note from paragraphs 19-23, the judge thought that the harm caused by the 8 January email was low, whilst the harm caused by the 25th January email (contempt 20) was of a much more serious nature because it would have caused “upset, distress and annoyance to any person, and thus cause harm, to any person in those circumstances”. This was primarily because it called Jed and Josh false witnesses. The judge did not consider that the 59th contempt arising out of the video was in the same category.[70]The judge then addressed the mitigating circumstances and said, at paragraph 28 of the Note, that it was a “very important point that he accepted the appellant’s statement that he will not breach the undertaking again in any circumstances.” The judge also had regard to a range of other mitigating factors.[71]The judge concluded that the breach in respect of the email of 25 January (contempt 20) passed the custody threshold. He went on:
“41. Although care must be taken referring to sentencing for contempt in other areas, as types of contempt vary greatly, I have gained some assistance from the Anti-Social Behaviour Injunction sentencing guidelines given the nature of this case. The contempts here are closer to those types of contempt than some of the other types of contempt. 42. The derogatory comment that comprised contempt 20 was clear, it was in the body of the email, it followed a shot across the bows about the need for compliance with the order, but the harm should be considered as low. Using the ASB sentencing guidelines, it would be at B (2)-(3), before mitigation is taken into account. 43. I have considered the mitigating factors, as I have set out. Mr Christie is a man of good character. There are some psychological issues at play, although they do not in my view amount to anything approaching an excuse for the behaviour. It is true that he has had a devastating time – losing the twin pillars in his life of family and religion had a significant effect on Mr Christie. 44. After careful consideration, the appropriate sentence is 14 days custody.”
[72]The judge then gave a detailed consideration of the question of suspension and decided that he could suspend the sentence of imprisonment. 9.2. Submissions[73]On behalf of the appellant, Mr Hitchens criticised the sanction (two weeks imprisonment suspended for a year) as being manifestly excessive. He argued that there was no evidence of harm. He also submitted that the judge applied the anti-social behaviour sentencing guidelines without proper adjustment.[74]Mr Reed rejects any criticism of the sanction. His principal submission as to sanction can be found at paragraph 85 of his skeleton argument in the following terms: “It is not open to the Respondent to argue that the sentence was unduly lenient as the Respondent has not cross-appealed. The Respondent limits itself to submitting that the sanction was within the range reasonably open to the Judge but, far from being “manifestly excessive”, was at the lowest end of the potential sanctions reasonably open to the Judge on the facts of this case.” 9.3. Discussion[75]In my view, the judge dealt carefully and courteously with the appellant throughout both hearings and, wherever possible, gave him the benefit of the doubt. That was reflected in the ultimate sanction that he imposed, which in my view was generous to the appellant. I therefore have some sympathy with paragraph 85 of Mr Reed’s skeleton argument.[76]The appellant’s individual criticisms of the sanction are untenable. First, I consider that the harm that was caused by contempt 20 is plain. As the judge found, the comments were “offensive” and “very far from trivial in the secular world”, so that in the religious context in which the comments were made, the impact was plainly much greater. To suggest that, in these circumstances, the court required evidence from the appellant’s sons as to the precise impact upon them of their father calling them liars and false witnesses is perhaps eloquent testimony of the appellant’s dislocation from the real world.[77]Also by reference to the religious context, the judge said at [66(f)] that, when a father accuses his sons of bearing false witness and therefore a breach of the 9th Commandment, “it is difficult to see being condemned to spend the afterlife in Hell as a trivial matter”. This was a reference to Revelations 21 v8 and its description of the unhappy fate of those who bear false witness. Mr Hitchens criticised the judge for making this point, but the judge was quite entitled to do so, since it was the appellant who had first referred to this passage in Revelations in his email of 8 January (entitled ‘Does Truth Matter?). The clear indication was that he thought it was the fate that awaited his family.[78]In support of the contention that the lack of specific evidence meant that the judge should have found that there was no or negligible harm, Mr Hitchens sought to rely on R v Chall [2019] EWCA Crim 865; [2019] 4 WLR 102. That was a case about a finding of severe or serious psychological harm in the criminal context. This court said:
“22 Save where there is an obvious inference to be drawn from the nature and circumstances of the offence, a judge should not make assumptions as to the effect of the offence on the victim. The judge must act on evidence. But a judge will usually be able to make a proper assessment of the extent of psychological harm on the basis of factual evidence as to the actual effect of the crime on the victim. Such evidence may be given during the course of the trial, and the demeanour of the victim when giving evidence may be an important factor in the judge’s assessment. The relevant evidence will, however, often come, and may exclusively come, from the VPS. The court is not prevented from acting on it merely because it comes from a VPS.”
[79]I was not assisted by that citation. This is not a case where the judge found severe or serious psychological harm in the absence of evidence. It is a case about the finding of some harm and, for the reasons that I have given, that was the obvious inference to be drawn from the nature and circumstances of the contempt.[80]It was Mr Hitchens, on behalf of the appellant, who referred the judge at the sentencing hearing to the Anti-Social Behaviour guidelines (“the guidelines”). Moreover, the judge did not simply apply the guidelines without more. He was very careful in his use of those guidelines, saying he had gained “some assistance” from them (see paragraph 41 of the Note). There was no argument that culpability for contempt 20 fell into category B of the guidelines. As to harm, it was not a case of very serious harm/distress (category 1) but – for the reasons he gave - the judge was also entitled to conclude that neither was it a case where there was little or no harm/distress (category 3). It therefore fell into category 2. Category B2 has a starting point in the guidelines of one month in custody, and a range from “adjourned consideration” up to three months in custody. Even if harm had been in category 3 then the starting point was “adjourned consideration” with a range up to one month in custody. The judge put contempt 20 between categories B2 and B3.[81]“Adjourned consideration” would have been entirely inapplicable given the amount of time, cost and resources this case had already consumed since the very first settlement in July 2017. On one view, if this had been in category B2, an appropriate period was more than one month, and if in category B3 the appropriate period was a little less than a month. On that basis, the two weeks identified by the judge was a generous assessment for a case straddling B2 and B3 of the guidelines, and provides an answer to any suggestion that there was no adjustment from the guidelines to reflect the facts of this case. I consider that other judges might well have made an upward adjustment to reflect the sheer range and number of the contempts.[82]For all these reasons, I reject ground four of the appeal.[10]Conclusions[83]As a result of this analysis, if my Lords agree, I would dismiss this appeal. I am bound to conclude with something I said during the course of argument: that, if there was to be any further breach by the appellant of his undertaking to the court, the likely sanction that he faces would be immediate custody, measured in months, if not years. The appellant must learn to act in accordance with the undertaking that he freely gave to the court, with which he has recently reiterated his promise to comply. It is the only way in which he can have any hope of the reconciliation with his family that he says he wants.

LORD JUSTICE ARNOLD:

[84]I agree with both judgments.

LORD JUSTICE WARBY:

[85]I agree that the grounds of appeal that were pursued at the hearing must all be dismissed for the reasons given by Coulson LJ. I add only these short comments on why I also agree that Mr Hitchens was right to abandon his pleaded Article 10 challenge to the finding of contempt in this case.[86]Reliance on Mionis as basis for that challenge was misconceived. In Mionis, the court considered whether Article 10 had a role to play on an application for an injunction to enforce a contractual undertaking given as part of an agreement to settle litigation. The court’s view was that such an application seeks “relief which, if granted, might affect the exercise of the Convention right to freedom of expression” within the meaning of section 12(1) of the Human Rights Act 1998 (HRA). Accordingly, even if the defendant had waived or contracted out of his Article 10 right to freedom of expression, that would not relieve the court of its duty under section 12(4) of the HRA to “have particular regard to the importance of” those rights when considering whether to make the order sought. On the other hand, the facts that the application sought enforcement of a contractual agreement, which had been made in settlement of litigation, with the benefit of expert legal advice were all very weighty factors in favour of the grant of relief: see the passages from the judgment of Sharp LJ which my Lord has cited at [34].[87]As this court held in Smith v Backhouse [2023] EWCA Civ 874, [2024] 1 WLR 794, a like approach is to be taken where the parties reach an agreement to settle litigation and the court is asked to accept undertakings pursuant to that agreement. The Mionis analysis was therefore relevant at an earlier stage of this case, when the parties asked His Honour Judge Gosnell to accept the appellant’s undertakings pursuant to the settlement agreement. But the appellant has never questioned the propriety of that decision. His challenge has been to the subsequent process of enforcing his undertakings by way of a contempt application. The argument advanced before Cotter J and originally revived under Ground 1 of this appeal was that, by virtue of sections 7 and 12 of the HRA, Article 10 could operate to bar a finding of contempt even if(a) no challenge could be made to the settlement or to the acceptance of the undertakings(b) the contempt proceedings were not an a abuse of process and(c) breaches of the undertakings were established to the criminal standard of proof.[88]An essential first step in that argument was that a finding of contempt would amount of itself to an “interference” with freedom of expression within the meaning of Article 10(2) or at least to “relief” of the kind referred to in section 12(1) of the HRA. Mionis does not support either proposition. I am not aware of any other authority that does. Mr Hitchens did not, in the end, pursue any such argument. I would reserve my opinion. In any event, on the facts of this case the argument was doomed to failure. The bargain made by the appellant may have amounted to a waiver, as seems to have been the judge’s primary ground of decision on this issue. If not, then the judge’s alternative ground of decision was plainly correct.[89]For the reasons given by my Lord, little weight can be attached to the right to impart or receive the information at stake in this case. On the other hand a finding of contempt gives effect to powerful imperatives. It supports a contractual bargain freely entered into by an adult of full capacity with the benefit of expert legal advice, which cannot be impugned on any recognised basis. It upholds the strong public policies in favour of finality in compromising litigation and holding parties to promises they make to the court. In Article 10(2) terms, such a finding serves the legitimate aims of protecting the rights of others and maintaining the authority of the judiciary. It is not arguable that the findings in this case represented a disproportionate interference with free speech.