HM Solicitor General v Stephen Yaxley-Lennon [2025] EWHC 1237 (KB)

[2025] EWHC 1237 (KB)Case No QB-2019-001740
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 May 2025
Before
MR JUSTICE JOHNSON
Between
HM SOLICITOR GENERALApplicantSTEPHEN YAXLEY-LENNONDefendantJAMAL HIJAZIClaimant
Adam Payter (instructed by the Government Legal Department) for ApplicantAlex Di Francesco (instructed by Carson Kaye Solicitors) for DefendantHearing Hearing date: 20 May 2025
Approved Judgment
[1]On 28 October 2024, I committed the defendant to prison for 18 months less 3 days: [2024] EWHC 2732 (KB) (“the committal judgment”). The defendant had admitted 10 allegations of contempt of court. Each contempt involved the publication of material in breach of an injunction imposed by Nicklin J on 22 July 2021.[2]At [103] of the committal judgment I said:
“It is appropriate to divide the sanction into punitive and coercive elements. The period of 14 months, less 3 days, is the punitive element. The balance of 4 months is the coercive element. That means that it is open to the defendant to purge his contempt and seek the remittal of 4 months of the order. In order to do that he would need to demonstrate a commitment to comply with the injunction. That is likely to require, at the least, the removal of “Silenced” from his social media accounts, and its removal (and the removal of the other publications that breach the injunction) from other online providers (or at least the taking of all possible steps to secure their removal).”
[3]On 16 April 2025, the defendant’s appeal against his committal to prison was dismissed by the Court of Appeal: [2025] EWCA Civ 476. The court drew attention to the defendant’s opportunity to reduce the period he must spend in prison by taking the steps I identified: per Lady Carr CJ, Edis LJ and Warby LJ at [53].[4]A person who is in contempt of court by breaching a court order, and who has been committed to prison, may ask the court to remit part of their sentence. To do so they must “purge” their contempt. If, as here, the contempt of court is the breach of a court order, then to purge their contempt the contemnor must belatedly comply with the court order. Where the court order requires the contemnor to do something, then the contemnor complies with the order by doing what is required. Where, as here, the court order prohibits the contemnor from doing something, then what is likely to be required is, at the least, a cessation of any activity that is in continuing breach of the order, a commitment to future compliance and steps to mitigate the damage caused by past breaches of the order.[5]On 14 May 2025, the defendant filed an application notice, asking the court to remit 4 months of his term of imprisonment because, he said, he wished to purge his contempt. The application has been listed before me because I imposed the order for the defendant’s committal: Swindon Borough Council v Webb [2016] EWCA Civ 152 per Tomlinson LJ at [24]. The court hearing the application must consider all the circumstances and make such order under the law as it thinks fit: CPR 81.10(3).[6]The defendant has filed two witness statements, verified by statements of truth. He says that he now understands that the right way for him to have approached the matter, if he disagreed with the court’s injunction, was to seek to appeal against the injunction rather than to breach it. He is now committed to complying with the court’s injunction. To that end, he says that the recordings that were published on his X account have been deleted, and they do not appear on any of his other social media accounts. In respect of other publications that breached the injunction, he has (through an intermediary) asked those who have control over the publications to remove them. In almost all instances, that has now been done. In one instance, there is an agreement to remove the material and that is being arranged. In one further instance, the person responsible for the publication has indicated that they would not, under any circumstances, remove it.[7]I have further evidence from an individual who has been involved in taking practical steps to remove material from the internet. Those were taken in conjunction with the defendant’s solicitor. That statement candidly identifies the extent to which there are still re-publications in the public domain of material that was published by the defendant in breach of the injunction, but he explains that this is beyond the defendant’s control. The defendant therefore says that he has done everything he can to secure the removal of material that was published in breach of the injunction. He gives an assurance that he will comply with the injunction in the future, that he has no intention of breaching it again, and that he is aware of the consequences of what would happen if he does breach the injunction again.[8]For her part, His Majesty’s Solicitor General has made it clear that if the defendant should “repost, or cause to be reposted, any of the material that has been removed from the internet in order to secure his early release, that would be regarded as a fresh breach of the injunction imposed by Nicklin J, meaning a new contempt application.” She reserves the right to bring a new contempt application if it should transpire that the defendant has done anything else, since his committal, to bring about the publication of any material that is prohibited by the injunction.[9]Alex Di Francesco, on behalf of the defendant, submits that the defendant has complied with the requirements I set out for him to purge his contempt, that he has purged his contempt, that the application should be allowed, and that 4 months of the term of committal should be remitted.[10]Adam Payter, on behalf of His Majesty’s Solicitor General, says that a review has been carried out to establish the extent of compliance with paragraph 103 of the contempt judgment. Further instances of publication were identified. Those were communicated to the defendant’s solicitor and those have now been removed. He does not contend that the applicant is in continuing breach of the order or that there is anything further that he could do to remove offending material from the public domain. He does not contest that the defendant has purged his contempt or that the application should be allowed, but makes it clear that this is a matter for the court.[11]The punitive element of the committal was intended to punish the contempt of court. After allowing for the effect of the early release provisions, the defendant will have served the punitive element by the end of this week. The coercive element of the committal was intended to encourage the defendant to comply with the court order. It has now had that effect. The coercive element may, in principle, be remitted where a contemnor has purged their contempt: McKendrick v Financial Conduct Authority [2019] EWCA Civ 529 [2019] 4 WLR 65 per Hamblen LJ and Holroyde LJ at [41].[12]In deciding whether the coercive element of the term should be remitted I have considered the following matters (see CJ v Flintshire Borough Council [2010] EWCA Civ 393 [2010] CP Rep 36 per Wilson LJ at [21], but I have left out of account those that do not apply to the circumstances of the present case):(1) Whether the defendant has been punished in a manner that is proportionate to his contempt.(2) Whether the interests of the State in upholding the rule of law would be significantly prejudiced by the defendant’s early discharge?(3) The genuineness of any expression of remorse and contrition?(4) Whether the defendant has done all that he reasonably can to demonstrate a resolve not to commit a further breach if he is discharged early?(5) The length of time that the defendant has served in prison, including its relation to (a) the full term imposed on the defendant, and (b) the term which he would otherwise be required to serve having regard to the early release provisions.(6) Whether there are any special factors which impinge on the exercise of the court’s discretion.[13]As to each of these factors:(1) The punitive component of the term of the committal reflects the period of imprisonment that I considered to be proportionate punishment for the contempt.(2) The early discharge of the defendant would not prejudice the State’s interests in upholding the rule of law. On the contrary, it furthers those interests because it means that the imposition of a coercive element has had the effect of causing the defendant to comply with the order of Nicklin J, thereby vindicating the rule of law.(3) The defendant has not expressed contrition or remorse.(4) It is common ground that the defendant has done all that he reasonably can to demonstrate a resolve not to further breach the order of Nicklin J.(5) The defendant has served 7 months in prison, with significant restrictions on association with other prisoners. That is the equivalent of a 14-month term after allowing for early release provisions, just over three-quarters of the overall term that was imposed.(6) There are no other special factors that impact on the exercise of the court’s discretion.[14]The absence of contrition or remorse is a factor that points against remittal. All other factors point in favour of remittal. The intention behind the coercive element of the committal has been achieved. The defendant has committed to comply with the court’s order. That reflects a change in his attitude since the time when I committed him to prison, and that in itself is a significant factor in the assessment of whether part of the term may be remitted: Swindon Borough Council at [31]. In all the circumstances, I consider it appropriate to grant the application.[15]Accordingly, I remit four months of the committal term. The substituted term is 14 months less 3 days. The practical effect is that the defendant will be released once he has completed the punitive element of the term, which will be within the next week. He continues to be subject to the injunction. As the applicant has correctly emphasised, any further breach of the injunction is likely to amount to a contempt of court, rendering the defendant liable to a further committal to prison for up to 2 years.