AS, R. v [2008] EWCA Crim 138

[2008] EWCA Crim 138Case No 2007/06283 C3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM MANCHESTER CROWN COURT
HIS HONOUR JUDGE ENSOR
T2007/7154
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/02/2008
Before
LORD JUSTICE THOMASMR JUSTICE DAVISMR JUSTICE DAVID CLARKE
Between
ReginaRespondentASAppellant
Mr A S Longworth for AppellantMr M Maher for RespondentHearing Hearing date: 14 January 2008
Judgment
[1]This appeal raised the issue of whether a judge of the Crown Court had correctly exercised his jurisdiction to determine, after the conclusion of a trial of a defendant, an allegation that the defendant was in contempt of court because he had intimidated a witness outside the Crown Court during the course of the trial. At the conclusion of the hearing we stated that the appeal against conviction and against sentence was dismissed; our reasons for so doing are set out in this judgment. Because a re-trial is pending any report of this decision must be under the name of R v AS.

The factual background

[2]On 5 September 2006 a young man was killed in an accident on a motorway in the north of England; there were two other persons in the car, the appellant and a young lady, JS. The appellant was charged with causing the death of the deceased by careless driving whilst unfit through drink or drugs. The appellant denied he was driving and alleged that the driver was the deceased; it was also in issue as to whether the driving that caused the death was in any event careless. The appellant was also charged with doing an act tending to pervert the course of justice at the time of the accident; he had given his brother’s details and not his own to the police at the scene. He pleaded guilty to that charge.[3]The appellant was committed for trial at Manchester Crown Court. The trial commenced before HH Judge Ensor on 29 October 2007. As is clear from what we have said, the main prosecution witness was JS, then 16; she gave evidence by video link on the first day of the hearing. At the conclusion of her evidence which was at the end of the court day she left court via the rear entrance with her mother and waited for a bus at a bus stop in Gartside Street. One of the witness volunteers, Miss Rosemary Corbett who had helped look after JS, also went to the bus stop and waited there for a bus.[4]The appellant left the court via the front entrance accompanied by his family and made his way to Gartside Street where he waited to be picked up by his brother in a motor car. As he came to Gartside Street he saw JS by chance.[5]CCTV cameras outside the building showed the appellant stop after he had passed the bus stop and then walk back in the direction of JS and her mother, accompanied by a male who was unidentified.[6]JS, her mother and Miss Corbett provided statements to the effect that as JS and her mother moved away, the appellant ran after them and shouted at JS. They ran, accompanied by Miss Corbett, and only stopped when they reached the entrance to the secure car park of the Crown Court. Each described the conduct of the appellant as intimidating and frightening. The appellant disputed the account and denied intimidating or frightening the appellant.[7]The incident was reported to Judge Ensor in these terms; he revoked the appellant’s bail for the duration of the trial; the bail had hitherto been unconditional.[8]The trial continued but in the result, on 8 November 2007, the jury stated they could not agree on their verdict and were discharged. The appellant was refused bail and remanded in custody pending his retrial which was subsequently fixed for 3 March 2008.

The steps taken prior to the contempt hearing

[9]The judge had decided that the appellant should be tried for contempt of court. To accommodate the convenience of the counsel who had represented the appellant at trial and who was thereafter engaged in another case, he adjourned the matter to 19 November 2007 for mention. Counsel who had represented the appellant at trial considered, on reflection, that it would not be appropriate for him to represent the appellant at the contempt hearing; new counsel was instructed who appeared at the contempt hearing before Judge Ensor and on this appeal.[10]On 22 November 2007, the appellant by his counsel made an application to the judge that the appellant should not be tried for contempt but should be charged under the specific offences created under s.51(1) or (2) of the Criminal Justice and Public Order Act 1994 which provides:
“(1) A person commits an offence if – (a) he does an act which intimidates, and is intended to intimidate, another person (“the victim”), (b) he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and (c) he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with. (2) A person commits an offence if— (a) he does an act which harms, and is intended to harm, another person or, intending to cause another person to fear harm, he threatens to do an act which would harm that other person, (b) he does or threatens to do the act knowing or believing that the person harmed or threatened to be harmed (“the victim”), or some other person, has assisted in an investigation into an offence or has given evidence or particular evidence in proceedings for an offence, or has acted as a juror or concurred in a particular verdict in proceedings for an offence, and (c) he does or threatens to do it because of that knowledge or belief.”
The offences are triable either way.[11]The CPS made it clear that it was not their intention to prosecute separately for this in the Magistrates’ Court; nor did they wish to add a count to the indictment for the re-trial of the causing death by careless driving charge. The judge ruled that it was appropriate for him to proceed to hear the matter as a contempt of court. The appellant also contended that the judge had the appearance of bias by reason of the way the family of the appellant considered he had conducted the trial. The judge found that there was nothing in this submission; he would not be the judge at the re-trial.[12]In advance of the hearing before Judge Ensor, a statement from Miss Corbett was served on 29 October 2007 and the CCTV recording was made available on 30 October 2007. Statements from JS and her mother were made available about 8 November 2007.

The hearing of the contempt proceedings

[13]On 23 November 2007, Judge Ensor conducted the trial of the contempt allegation. Counsel who had appeared for the prosecution at the trial of the careless driving called JS, her mother and Miss Corbett to give evidence; they were cross-examined by the counsel for the appellant. The CCTV recordings were played. Counsel for the appellant called the appellant, his mother and the appellant’s brother to give evidence and they were cross examined[14]The Judge gave a judgment which set out very fully his reasons for accepting the evidence of Miss Corbett and rejecting the appellant’s explanation as well as the evidence of his brother and mother. He found that the appellant had turned round and approached JS with the intention of intimidating her; that he had then followed JS, her mother and Miss Corbett; that when they quickened their pace he quickened his pace so that they all ended up running with the appellant jogging after them; that they had run until they sought sanctuary with the security officer at the entry to the secure car park. He concluded that on the facts there was a clear contempt of court.[15]He then sentenced the appellant to a period of 6 months imprisonment. After discussion he reduced the sentence to a period of 4 months for reasons to which we shall refer.

The appeal

[16]The appellant appeals to this court on 3 points, as of right under s.13 of the Administration of Justice Act 1960, on the following grounds: i) The judge should not have heard the matter as a contempt of court; if proceedings were to be taken, then he should have been prosecuted under s.51 of the Police and Public Order Act at the Magistrates’ Court or on indictment at the Crown Court. ii) The judge should in any event have refused to hear the case because of the appearance of bias. iii) The sentence was manifestly excessive. No criticism was made of the way in which the judge in fact conducted the trial of the contempt; no appeal was made against the findings of contempt made by the judge.

The legal framework

[17]There was a considerable measure of common ground as to the legal framework as it applied to the jurisdiction of the Crown Court to hear and determine cases of criminal contempt of this kind. i) The conduct of the appellant, as found by the judge, in approaching a witness and frightening that witness could amount to a contempt of court: see Moore v Clerk of Bristol Assize [1971] 1 W.L.R. 1669. In that case, one of the defendants to a trial at the Assize frightened a witness in a café after she had given her evidence. Lord Denning said at page 1670: “The law has been settled by Attorney-General v Butterworth [1963] 1 Q.B. 696. The court will always preserve the freedom and integrity of witnesses and not allow them to be intimidated in any way, either before the trial, pending it or after it. Here it was after the girl had given evidence. It is a contempt of court to assault a witness after he has given evidence: it is also a contempt of court to threaten him or put him in fear; if it is done so as to punish him for what he has said. There is no doubt whatever that this conduct of [the defendant] was a contempt.” ii) The Crown Court has jurisdiction to punish contempt of this kind: see Balogh v St Albans Crown Court[1975] Q.B. 73 where it was made clear by reference to the decision in Moore that the inherent jurisdiction of the court to punish summarily extended to the Crown Court and to this type of conduct; it was not restricted by the provisions of what is now CPR sc 52. It was not necessary to refer the matter to the Divisional Court. The jurisdiction of the Crown Court was made clear by s.45(4) of the Supreme Court Act 1981. iii) In very many cases of contempt, a criminal offence is also committed. In Santiago [2005] EWCA Crim 556 ([2005] 2 Cr. App. R. 24) for example the defendant had a tussle with the dock officer and a submission was made that he should have been prosecuted for assault. Whether the judge should refer the matter to the Crown Prosecution Service for consideration of a prosecution for a specific criminal offence or whether the judge should proceed to determine the matter under the contempt jurisdiction is a matter of the judge’s discretion. iv) The circumstances in which the court should exercise its discretion to determine the matter as a contempt of court are considered in Balogh, Griffin (1989) 88 Cr. App. R. 63, Wilkinson [2003] EWCA Civ 95 ([2003] 1 W.L.R. 1254), DPP v Channel Four Television [1993] 2 All ER 517 and McLeod [2001] Crim LR 589 and Santiago. In Santiago the court had to consider a case where the judge deferred the hearing of the allegation of contempt against a defendant which had occurred during a trial until a few days after the conclusion of the trial. Hooper LJ, giving the judgment of the court, summarised at paragraph 27 the position as developed by the cases: “We conclude that a judge is entitled to defer taking action on a prima facie contempt. He may adjourn the issue of whether a contempt was committed and any issue of punishment until later. The fact that the trial is over or the fact that there is no immediate need to take action does not prevent the judge from later taking action. Indeed he should not take action immediately if to do so would be unfair to the defendant. On the facts of this case it would have been quite disproportionate to have left the matter to the Crown Prosecution Service to bring a (possible) prosecution in the magistrates' court. That is certainly true when, as here, there was no dispute about the facts. It seems to us that the threat of summary contempt proceedings made at the time of the incident may well be effective in restoring or maintaining order whereas the risk of prosecution in the magistrates' court would not be so effective (if effective at all). It would be strange if having properly made the threat, the judge was precluded in a case like this from holding the proceedings.” v) The process by which a judge tries a case in this way is referred to as a “summary” process. However, there are two circumstances that must be clearly distinguished: a) Proceedings where the allegations are investigated and tried in a manner that is truly summary. There are a number of special features of this procedure which has a long historic origin; (see the discussion in Arlidge, Eady and Smith on Contempt: (3rd edition, 2005), chapter 1; Miller: Contempt of Court (2000) paragraphs 3.02-3.08). It is clearly described (as operated in contemporary times) by Mustill LJ in Griffin in the following passage: “First, we are here concerned with the exercise of a jurisdiction which is sui generis so far as the English law is concerned. In proceedings for criminal contempt there is no prosecutor, or even a requirement that a representative of the Crown or of the injured party should initiate the proceedings. The judge is entitled to proceed of his own motion. There is no summons or indictment, nor is it mandatory for any written account of the accusation made against him to be furnished to the contemnor. There is no preliminary enquiry or filtering procedure, such as a committal. Depositions are not taken. There is no jury. Nor is the system adversarial in character. The judge himself enquires into the circumstances, so far as they are not within his personal knowledge. He identifies the grounds of complaint, selects the witnesses and investigates what they have to say (subject to a right of cross-examination), decides on guilt and pronounces sentence. This summary procedure, which by its nature is to be used quickly if it is used at all, omits many of the safeguards to which an accused is ordinarily entitled, and for this reason it has been repeatedly stated that the judge should choose to adopt it only in cases of real need.” b) Cases where the judge defers dealing with the matter until the conclusion of the trial (as in Santiago) and a formal procedure is then followed. The process is properly classified as a summary process, but it is very different to the procedure described in Griffin. It is, perhaps, more helpful to refer to this as a “formal procedure” and we shall do so for the purposes of this judgment. In either case, it is clear that the defendant must receive a fair trial and his rights under Article 6 be respected. vi) The formal procedure will involve (as happened in this case) the calling of witnesses by a prosecutor, the opportunity of examining them, the opportunity of the defendant to give evidence and call his own evidence and the provision of a reasoned judgment of the court against which an appeal to this court lies as of right. Such a procedure is these days very little different from a hearing in a Magistrates’ Court, save that in the Magistrates’ Courts the charge will be set out in a formal document and normally the defendant will have been interviewed by the police. Indeed, in the case of many prosecutions brought in the Magistrates’ Courts for the less serious cases of attempts to interfere or intimidate witnesses, they could well be heard by District Judges (Magistrates’ Courts).[18]The issue which arises in the present appeal and the question which the court must address in each case of this kind is what is the right course to pursue: i) The truly “summary” procedure of the type described in Griffin or ii) the “formal procedure” for hearing contempt used in this case; iii) Referring the matter to the prosecuting authorities for prosecution as a substantive offence. It was accepted before us that the decision as to which course to pursue is a matter within the discretion of the judge.[19]In Arlidge, Eady and Smith, the editors point at paragraph 2-15 to concerns that have been expressed for many years over the readiness of judges to use the inherent summary process where it was not necessary. They point to the conclusions at paragraph 21 of the Report of the Committee on Contempt of Court (Cmnd 5794) under Phillimore LJ in 1974 that the summary jurisdiction should only be invoked where:
“ (a) the offending act does not fall within the definition of any other offence; or (b) where urgency or practical necessity require that the matter be dealt with summarily”
[20]In the case of what might properly be described as a “summary” procedure to which the conclusion in paragraph 21of the Report was directed, it is entirely consistent with the decisions of the courts which refer to the need to exercise the jurisdiction sparingly or in cases of real need: see for example Lawton LJ in Balogh at pages 92-3, the examples set out at paragraphs 10-29 to 10-35 of Arlidge, Eady and Smith and the instances referred to in the comment on MacLeod in [2001] Crim LR 589. This is no doubt because of the particular features of the process as described by Mustill LJ in Griffin. Other reasons were pointed out by the High Court of Australia in Templeton v Stapleton (1953) 90 CLR 573, the High Court of Australia:
“… it is a well-recognised principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard (1868) L.R. 2 P.C. 106, at p.120; R v Foster; Ex parte Isaacs (1941) V.L.R. 77, at p.81. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott (1909) A.C. 312, AT P. 315. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court submissions of fact or law, which he may wish the court to consider as bearing upon the charge itself or upon the question of punishment. Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon.”
[21]However, where the judge is considering a contempt which is to be dealt with through what we have described as the formal procedure (by hearing the matter at a time which gives the defendant a full opportunity to prepare his defence and make enquiries and by following the steps which we have outlined), then the objections set out in respect of the truly summary procedure have less force. The dicta applicable to the truly “summary” procedure must, in our view, be read in the light of the more formal procedure, though use of the contempt jurisdiction should only be invoked where circumstances make it necessary and proportionate to proceed in that way.[22]In this case, the relevant factors to the exercise of the discretion were: i) The importance, in the circumstances prevailing in many courts, of ensuring that anyone who attempts to interfere with or intimidate a witness during the course of the trial within the vicinity of the court is dealt with promptly. In many areas of the country, the actions of defendants or others in trying to frighten witnesses in or outside the court are causing really serious problems to the proper administration of justice; prompt and immediate action is often required. ii) The necessity in this particular case for the matter to be dealt with quickly so that no similar incidents would occur during the trial or pending the retrial. The fact that the appellant was in custody made no difference as it is clear from the CCTV tapes that he was accompanied by an unidentified person when JS was pursued. A court must be seen to act quickly and firmly in respect of witness intimidation particularly in areas where it is a serious problem. As was pointed out in Santiago, being able to state that action will be taken by the court as soon as practicable may often be enough to enable the trial to continue without further interruption; a judge can only say that if he resolves to deal with the matter of his own motion rather than leaving the matter to the discretion of the prosecuting authorities. The matter would have been heard earlier, but counsel who it was thought would represent the appellant was not available earlier. iii) The proportionate nature of the course followed. It would have been disproportionate to refer the issue to the CPS for them to consider whether to commence separate proceedings in the Magistrates’ Courts if a trial for contempt could be conducted fairly and without disadvantage to the appellant before the Crown Court. It would have been damaging to the interests of justice if the CPS took no action; indeed in the circumstances it could properly be described as the realistic way of dealing with what had happened (see Borrie & Lowe, The Law of Contempt (3rd edition,1996) at page 522. iv) The clarity of the allegation against the appellant. Although there was no written charge, that made no difference in the circumstances of this case as it was clearly evident (as was accepted by the appellant) from the statements served by the CPS what the conduct alleged against the appellant was. In Borrie & Lowe, the position is helpfully formulated at page 519: “The general rule may therefore be better stated by saying that the charge must always be specific enough to leave the accused in no doubt as to what conduct is being complained of.” v) The fact that there was ample time for the appellant to prepare the defence properly; the evidence was served promptly and no further disclosure was necessary. vi) The procedure to be followed and the safeguards provided. As we have set out, the formal procedure followed was almost indistinguishable from the procedure that would have been followed in the Magistrates’ Courts. The fact that the appellant was not interviewed made little difference. vii) The very limited dispute as to fact as much of the evidence was either admitted or caught on the CCTV camera. viii) The level of punishment was unlikely to be high (as in the result it was not). ix) The position of the judge. This was not a case where the judge had seen what occurred; we deal with the more general issue of apparent bias at paragraphs 25 and 26 below.[23]In all these circumstances, we consider that it was within the discretion of the judge to decide that the matter should proceed by way of trial before him in the manner described and that there is no ground upon which the exercise of that discretion can be challenged.

Apparent bias in relation to other matters

[24]It was submitted on behalf of the appellant that the judge should not have tried the appellant for contempt as there were additional matters on the specific facts that gave rise to the appearance of bias. However, on examination of this submission, the only matters advanced were that the appellant and his family were unhappy with the way in which the judge had conducted the trial and considered that the decision of the judge to revoke his bail and remand the appellant into custody showed he had made up his mind against the appellant.[25]Since the decision in Porter v McGill [2001] UKHL 67 ([2002] 2 A.C. 357) the test is that set out at paragraph 103:
“Where the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
In R v Abdroikov & Others [2007] UKHL 37, Lord Bingham summarised the characteristics of a fair minded and informed observer at paragraph 15:
“He must adopt a balanced approach and will be taken to be a reasonable member of the public, neither unduly complacent or naïve nor unduly cynical or suspicious.”
[26]Applying those tests, we do not consider that the fair minded and informed observer would conclude there was a real possibility that the judge would be biased. He had summed up the case (which, as was accepted on behalf of the appellant, was a strong one against the appellant) fairly and made no comments on the credibility of JS. The fact that there was a serious allegation against the appellant of intimidating a witness provided a very good reason for revoking the appellant’s bail; it was no reason to assume that the judge was predisposed to find that there had been such conduct. Indeed, if the judge had found there had been no intimidation, he would have reconsidered his decision as to bail. Furthermore Judge Ensor made it clear that he would not be the trial judge at the retrial; hearing the issue of contempt in all those circumstances cannot have given rise to the appearance of bias.

Sentence

[27]The judge, as we have mentioned, initially imposed a term of 6 months imprisonment; he made it clear that a deterrent sentence was necessary as witnesses had to be protected from defendants; they had to be encouraged to come to court and give evidence without fear. Later in the day, the judge was told by counsel that the early release provisions of s.244 of the Criminal Justice Act 2003 did not apply to a person sentenced for contempt. In a sense that was correct as specific provision is made by s.258; that section provides that a person committed to prison for contempt must be released when he has served one half of the term for which he was committed; that release is unconditional unlike the position of those released under the early release provisions of s.244. The position therefore of the appellant was more favourable than if he had been sentenced under the general provisions, but the judge was not told that; it appears that although reference is made to s.258 in Archbold, it is not set out. The judge was told that there would be no early release; it was on that basis alone that he reduced the sentence of imprisonment from 6 months to 4 months, as he had indicated that the appellant should have served the sentence prior to the commencement of the retrial.[28]On the hearing of the appeal, the correct position under the CJA 2003 was pointed out to counsel and the grounds originally put forward on this basis were no longer pursued. Nonetheless it was argued that the sentence of 4 months was still manifestly excessive for the appellant who was of a young age and previous good character; it was submitted he had plainly been emotionally charged at the end of the first day of the trial.[29]In our view the sentence was not manifestly excessive. As we have already set out, there are serious problems of interference with witnesses in many parts of the country; a deterrent sentence is often called for. Those who interfere with witnesses, either before or after they have given evidence, can only expect to be dealt with severely by the court, even where, as in this case, it was not in any sense premeditated.