Tommy Robinson’s appeal: will his world class legal team get him out of prison?

According to Tommy Robinson’s family’s “authorised spokesman,” Ezra Levant, the gaoled activist has appealed against his 13 month sentence for contempt of court.

We will have a look at what is actually likely to happen when his case gets to court in a moment, but there may be some readers who have not been following the story closely.

Why is Tommy Robinson in prison?

Since 25th May Mr Robinson, real name Steven Yaxley-Lennon, has been serving a sentence of 13 months imprisonment for contempt of court. The sentence is made up of a 3 month sentence passed for contempt of the Canterbury Crown Court in 2017, originally suspended but now activated, and a 10 month consecutive sentence imposed for a separate contempt of the Leeds Crown Court on 25th May 2018. The Judge who sent him to prison, Geoffery Marson QC, was at the time presiding over a trial involving allegations against a number of defendants, according to Mr Robinson muslims, who are accused of sexual offences. Unfortunately we do not know many more details because reporting restrictions are in place, probably to prevent jurors in another case hearing inadmissible evidence.

Reporting restrictions? What’s that about? If something is said in court surely it can be reported?

Actually, no. Until a verdict is delivered, only things said in court in the presence of the jury can be reported. Legal argument invariably takes place while jurors are relaxing in the comfort of their retiring room (the lucky ones among them may even get to re-read a 2011 Woman’s Realm several times), and it cannot be reported until the trial is over. Very often the argument is about the admissibility of evidence. Obviously if you report arguments about admissibility of evidence then jurors may read about evidence even if it is ruled inadmissible, which is hardly very fair.

I can see the reason for that, but the press isn’t allowed to report any of these trials? How ridiculous is that?

It’s not ridiculous at all. It’s to protect the fairness of the trials. Where there are two trials with an overlap of evidence, defendants or witnesses between them, evidence which is admissible in one trial may be inadmissible in another. Sometimes even the fact that a person has been on trial in the first case is liable to prejudice the jury in the second one. Sometimes there may be more than two linked trials, when the matter becomes still more complicated and unpredictable.

The fundamental principle is that a fair trial requires a defendant to be tried only on legally admissible evidence, and in circumstances where he or she can challenge any evidence in dispute. If jurors are likely to be diverted from their task by reports of what may have happened in another trial, that can make a fair trial impossible.

The principal difference between a fair trial and mob justice is that the former is conducted according to rules, and those rules need to be backed, ultimately, by the possibility of punishment for those who break them.

So did Tommy break the reporting restrictions?

He may have done, but his contempts of court went further than that. He published videos on his You Tube channel in which he made prejudicial comments about ongoing cases before verdicts had been delivered.

What did he actually do wrong?

Let’s look at the Canterbury offence first.

Mr Robinson came to the Crown Court where a trial was going on hoping to film the defendants. As at all courts there were prominent notices warning that filming in the precincts of a court is a criminal offence under S.41 of the Criminal Justice Act 1925. Coming to court is enough of an ordeal without having to worry about an aggressive Tommy Robinson thrusting his mobile phone in your face and demanding that you say something. The judge learnt what he was up to, and directed that the jurors and defendants leave by a separate entrance. He was told to stop, but he carried on filming anyway. Unable to find any defendants to film, he made a glorified selfie of himself, talking to the camera both inside and on the steps outside the court building. He then posted the film on You Tube under the headline:

Tommy Robinson in Canterbury, exposing Muslim child rapists. Police help them escape.”

His commentary referred to the defendants as “Muslim paedophiles.”

The judge decided that this behaviour was a clear contempt of court. It was:

… pejorative language which prejudges the case, and it is language and reporting – if reporting indeed is what it is – that could have had the effect of substantially derailing the trial.”

A contempt of court is a common law offence, committed where someone does anything which is “calculated to prejudice a fair trial.” Although the word “calculated” might seem to imply a degree of premeditation, or at least intent to prejudice a trial, in fact no such intent need normally be proved if the conduct in fact creates such a risk: see Solicitor General v Cox and Another (Contempt of Court: Illegal Photography) [2016] EWHC 1241 (QB) [2016] 2 Cr. App. R. 15. Furthermore, where a “publication” to the general public is concerned (and placing footage on You Tube would be within the statutory definition of “publication”), the Contempt of Court Act 1981 makes it clear that no further intent need be proved.

Mr Robinson’s intention was immaterial to his guilt, although it was of course relevant to his sentence.

Well, what did Tommy say about it?

Mr Robinson was represented by counsel. He does not appear to have disputed that he was in contempt, but he pleaded ignorance of the law – mitigation, of course, rather than a defence – and through counsel apologised for his behaviour.

Let me guess, he had some rubbish duty solicitor who didn’t know the law?

No, he was represented by two counsel. They were not run of the mill hacks like Barristerblogger, and one of them, Richard Kovalevsky QC, is indisputably one of the country’s top criminal barristers. His citation in The Legal 500 strongly recommends him, for his “strategic treatment of difficult issues and collegiate approach,” as well as hisout-of-the-box thinking” which can be a game-changer.’

I may be wrong, but Mr Robinson doesn’t really strike me as the sort of man who would be attracted by a collegiate approach, so I would guess it was the out-of-the-box thinking that appealed. In fact, on this occasion Mr Kovalevsky’s thinking seems to have been fairly conventional. He grovelled, pretty effectively, on Mr Robinson’s behalf.

He urged on Her Honour that his client had been a little “naïve.” The judge said she found that “rather difficult to accept that at face value,” but accept it she eventually did. Mr Kovalevsky also suggested – perhaps this was a little more out-of-the-box – that his client might be murdered if he was sent to prison. It seems to have been a possibility that concerned Judge Norton, and it persuaded her to suspend the sentence. He left the court with these words ringing in his ears:

You should be under no illusions that if you commit any further offence of any kind, and that would include, I would have thought a further contempt of court by similar actions, then that sentence of three months would be activated, and that would be on top of anything else that you were given by any other court.

The sentence was suspended for 18 months.

OK, that was Canterbury, what did he do wrong in Leeds?

Almost a year to the day after getting the suspended sentence in Canterbury Mr Robinson turned up at Leeds Crown Court towards the end of a similar trial. He shouted at defendants as they were going into court, asking if they had their prison bags ready. He commented unfavourably on the defendants’ demeanour after he bated them. He read out a list of charges which he said that the defendants were facing, although it seems he included allegations that were not in fact proceeded with. He called a passer-by a “scumbag.” From time to time he threw in the word “alleged,” although generally with a leer, as though the very notion that a Muslim might be innocent of gang rape was too absurd to be taken seriously.

Yeah, but Tommy’s not a racist is he?

Well, we’re getting a bit distracted here because the question of his racism is rather beside the point. That said, his video does contain the observation “I’m an English man and they’re English girls, they’re women, they’re young girls and they’re in our country and they’re being groomed and raped because of that.”

And yes, since you ask, I know that the English aren’t a race. Nor are muslims.

Isn’t he entitled to his free speech, even if it’s racist?

Normally I would be happy to defend his right to free speech, however unpleasant, but all this was live-streamed on the internet for over an hour, and Mr Robinson encouraged his viewers to share the video far and wide, so that it might be seen by “millions.” His racism – if that is what it was – is neither here nor there. The point is that it was capable of intimidating members of the public, and prejudicing jurors against the defendants.

It is unpleasant, menacing and inflammatory, and more rather than less unsettling because of the cheerful-chappie manner in which it’s delivered; but of course what made it criminal is that Mr Robinson was knowingly carrying it on immediately outside the court building where a serious trial was going on, and encouraging his supporters to share it far and wide. Within hours it had been seen by 250,000 people.

I’ve heard that he was arrested just for breach of the peace, but then charged with contempt of court, something completely different? Isn’t that highly unusual? What the hell’s going on here?

No, it’s not even slightly unusual. The crime for which someone is prosecuted often bears no resemblance to what they were originally arrested for. The Yorkshire Ripper, for example, was originally arrested for having a false numberplate, before being prosecuted for multiple murders.

But Tommy was sentenced just 5 hours after he was arrested? How could that be fair?

He admitted the offence. When an offence is admitted, in English law there isn’t a trial. He had plenty of time to instruct a lawyer and to give him instructions. The procedure the judge followed appears to have been entirely consistent with the Criminal Procedure Rules. All things being equal, especially where the facts are not in dispute, swift justice is better than slow justice.

But he had a useless lawyer, right?

Wrong.

He had Matthew Harding, a Leeds barrister with over 15 years experience at the criminal bar. He is exactly the sort of barrister you would get if you were charged with rape, drug dealing or GBH. He’s not useless at all.

If he’s so good, why didn’t he fight the case then? He could have called witnesses, cross-examined the police and argued Tommy’s right to free speech?

He could have done all those things, and no doubt would have done some of them, if Mr Robinson had instructed him to contest the allegation. But he didn’t. He admitted he was guilty. He could hardly argue about the facts of what he’d done: the evidence was all over You Tube. Even so, he could have argued:

  • That it wasn’t a contempt of court because it posed no danger of prejudicing the jury in the trial;
  • That his behaviour might have prejudiced the trial, but his right to freedom of expression under Article 10 of the European Convention on Human Rights should take priority over the defendants’ Article 6 right to a fair trial.

    Very sensibly, because both arguments are rubbish, he did neither.

He no doubt expected to get a lighter sentence if he fessed up and said he was sorry. I daresay he was right.

According to Hull Live:

Matthew Harding, mitigating, said his client felt “deep regret” after realising the potential consequences of his actions.

He said Robinson was aware of the reporting restriction in place in the case but thought what he was saying on camera was already in the public domain.

The barrister added: “He was mindful, having spoken to others and taken advice, not to say things that he thought would actually prejudice these proceedings.

“He did not try to cause difficulties for the court process.”

To which one is inclined to say “Hmm,” but a barrister doesn’t just make things up, he says them on instructions. In this case Mr Robinson’s instructions. Robinson must have told him he had deep regret over his actions.

Mr Harding also put forward the other thing that had kept Robinson out of gaol in Canterbury:

there had been “a price on his head” during his last prison term with inmates being offered the reward of drugs and mobile phones to kill him.”

It was never very likely that he could use the same argument successfully again, and so it proved. On the other hand his strategy of admitting guilt and apologising, no doubt got him a lighter sentence.

Come on though! 13 months for contempt of court? That’s unprecedented.

No, it’s not unprecedented at all. The maximum sentence is 2 years imprisonment. Andrew Keogh, editor of Crime Line Law, and someone with an encyclopaedic knowledge of the criminal law, has pointed out that there have been dozens and dozens of cases where contemnors have been sentenced to between 12 and 24 months. Both of Mr Robinson’s sentences were less than 12 months, although combined of course, they were just over.

There is no case law involving precisely similar conduct, but one case which has some parallels is R v. Vincent D [2004] EWCA Crim 1271, where the brother of a defendant took pictures on his mobile phone of a witness, a prison officer and the defendant himself inside the court-room during a trial. The photographs were of poor quality and it wasn’t possible to identify the witness or the prison officer. The brother admitted contempt. He said he had taken the photographs for fun. The Crown Court Judge imposed a sentence of 12 months, pointing out, amongst other things, the considerable risk that the trial, in that case a long-running drugs conspiracy, might have had to have been abandoned and started all over again. The Court of Appeal upheld the sentence.

What is, if not unprecedented, at least remarkable about the case is Mr Robinson’s flagrant disregard of the shot across his bows in Canterbury, and his repetition of almost exactly the same conduct. A refusal to obey the clear orders of the court is generally regarded as a pretty important aggravating feature. If a burglar gets a 3 month suspended sentence for a burglary in 2017, he should expect to get a much longer, consecutive and immediate sentence for carrying out an almost identical burglary 12 months later. The principle is the same for contempt of court.

Judge Marson explained why he viewed Robinson’s contempt so seriously:

No one could possibly conclude that it would be anything other than highly prejudicial to the defendants’ in the trial.”

If the jurors in my present trial get to know of this video I will no doubt be faced with an application to discharge the jury.”

It is not clear whether or not he was faced with such an application, or (if he was) what he decided.

How does Tommy Robinson appeal then?

Like anyone else unhappy with their verdict or sentence, Robinson can apply to the Court of Appeal to quash the conviction or reduce the sentence.

In fact he’s in a slightly better position than most. Under S.13 of the Administration of Justice Act 1960 he has an appeal as of right; he doesn’t even need to ask for permission from a single judge as he would if he had been convicted in court in an “ordinary” case.

Well that should be a doddle, shouldn’t it? He was arrested and sentenced within 5 hours. How’s that fair?

Actually he doesn’t seem to be arguing with his conviction. Despite all the hoo-ha, the marches, the demos, the intervention of the shock-jocks and of Katie Hopkins herself, his spokesman has said that he’s appealing his sentence, not the fact of the conviction.

Hang on! That’s hardly his fault, is it? He can’t appeal it now, because he pleaded guilty, and that was all the fault of his useless public defender lawyer.

Let’s break that down a little bit.

  1. Sorry to repeat myself but he didn’t have a useless public defender lawyer. He had a very good independent barrister.
  2. It’s actually quite possible to appeal against conviction after a plea of Guilty.
  3. It’s a bit of a technicality perhaps, but the procedure for contempt of court does not require a “guilty plea” to be entered anyway. Instead, the defendant is asked if he admits the conduct in question, and if he does no evidence need be called.
  4. Mr Robinson admitted it, and apologised for it.
  5. Despite that, he can still appeal though.
  6. Although Mr Harding did an excellent job, he’s got an entirely new legal team now. According to Ezra Levant (one of a rather bewildering array of Tommy Robinson supporters, spokespeople sidekicks and PAs):

“Tommy has switched lawyers. He now has a top law firm that is filing an appeal. They are giving Tommy the world-class representation that he needs.”

  1. If the top law firm believes that he has the slightest chance of successfully appealing against the fact of his contempt, you may be sure that they would be trying to do so. If they are not, (and according to Mr Levant they are not) that indicates that they don’t believe there are any grounds even to argue the point. In other words, for all the hot air from his supporters, Tommy’s world-class lawyers appear to accept that his conviction for contempt of court is legally sound. They’re arguing about the sentence.

How is Tommy paying for these top lawyers?

The world class representation is being crowd-funded. According to Mr Levant:

We anticipate this will be tens of thousands of pounds. But that’s fine – this is the most important legal case in the United Kingdom.”

I must admit I gulped when I read “tens of thousands of pounds.” I’ve no problem with Mr Robinson paying one of my stellar colleagues whatever the market will bear, but the idea that an appeal against sentence normally costs tens of thousands of pounds is ludicrous.

Then I gulped again when I saw the case described as “the most important legal case in the United Kingdom.” I hadn’t realised that.

However, if you read a little further into the press release, it turns out that the crowd-funding is not just for his legal fees: the surplus is going to Tommy’s family.

Well the sentence is just insanely long, isn’t it? I’ve heard Katie Hopkins say so.

Although the opinion of respected academics can sometimes be cited in court, that of Katie Hopkins is unlikely to be accorded much weight.

I suppose he may have the beginnings of an argument on the procedural issue. The judge could have adjourned Robinson’s case for a few days, until after the trial was over. In some cases waiting for a few days for the dust to settle, for legal advice to be given and reflected upon may make sense. Hot heads, including occasionally judicial ones, can cool down; things done in anger may be genuinely regretted. Mr Robinson now seems aggrieved that he didn’t have time to instruct a lawyer of his own choosing, although whether that is something that he raised at the time, or just a complaint his supporters have thought up since is not clear.

On the other hand here were excellent reasons why the judge decided to act as he did. Robinson had shown a determination to carry on his filming and his You Tube posting despite an earlier court order. His behaviour had already caused a huge distraction at a critical stage of the trial. The last thing he needed was Robinson and his supporters continuing to distract the jury and intimidate the defendants. He could have remanded him in custody until the conclusion of the trial, but it’s hard to see what a delay would have achieved beyond giving Mr Robinson’s supporters further reason to demonstrate outside the Leeds Crown Court. And whilst it’s true that people should have a free choice of lawyer, the courts are very rarely willing to adjourn an urgent hearing to allow a defendant to instruct a particular lawyer if other competent representation is available, as it was. In that respect Mr Robinson was treated in exactly the same way as any other defendant.

In any case, a quibble over procedure is only the beginnings of an argument. What really matters is whether the sentence was actually too long. The Administration of Justice Act 1960 does not use the words, but whether it was “manifestly excessive” will be the issue for the Court of Appeal, as it is in ordinary appeals against sentence.

It’s very difficult to see that it was. The aggravating features were many:

  1. The risk to the trial was manifest. It had lasted weeks, it was of the utmost seriousness and involved (it seems) child witnesses.
  2. Mr Robinson was not, as in other cases, taking photographs for private purposes, he was making a campaigning and deliberately provocative film and encouraging others to spread it around the internet.
  3. As well as filming defendants on the steps of the court (he himself seems to have taken care to remain just off the court steps), he bated and mocked them as they arrived for court, asking one of them, for example, if he “had his prison bag.” It was not behaviour which did a great deal to enhance the dignity of the court.
  4. It was carried on whilst Mr Robinson was subject to a suspended sentence for almost identical behaviour.

Sometimes of course, and not just in contempt cases, things that have happened after a person has gone to prison can influence the court. Prison governors occasionally write to the Court to say that they have seen particularly good behaviour or a prison chaplain might say that a prisoner has demonstrated a particularly high degree of remorse.

In Mr Robinson’s case it’s hard to see that happening. Despite his expressions of regret, sorry “deep regret,” at the sentencing hearing, ever since his supporters have carried on a campaign of marches, demonstrations and internet activism which doesn’t seem to reflect that deep regret at all. Of course, it may be that Mr Robinson himself is sitting in his prison cell deeply regretting his actions and those of his various apparent spokespeople, but if his regret was of the profoundly deep type that occasionally influences the Court of Appeal it’s odd that he has not taken the step of telling them all to shut up. The closest we’ve got to that is someone calling herself his “PA” telling his supporters:

Tommy has requested that should any people go to the Appeal on the 10th July that they DO NOT go into the Court as his Legal team has advised against this. Please respect Tommy’s wishes.”

In a short video Ms Gower even  warned Tommy’s supporters “to cause no problems” and not to “livestream or take pictures on the court premises.”

Very sensible requests, and demonstrating an awareness that even an appeal court could be influenced by “problems” outside. But it still falls some way short of an expression of deep regret.

Well you’re just a leftard cuck, what do you know? As Ezra Levant says “Tommy’s got world class lawyers now,” not some provincial nobody like you. The worst that can happen is that he’ll lose his appeal.

I’m sure Tommy’s world class lawyers will have advised him that losing isn’t necessarily the worst that can happen.

The Court of Appeal has the power to reduce his sentence, certainly. But let’s just have a quick look at S.13 of the Administration of Justice Act 1960, which, as you’ll remember, is the provision that gives Mr Robinson a right to appeal. Subsection (3) is the crucial bit:

The court to which an appeal is brought under this section may reverse or vary the order or decision of the court below, and make such other order as may be just ….”

The wording is slightly different from the corresponding subsection (S.11 (3), since you ask) in the Criminal Appeal Act 1968 which contains these words:

the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.”

In practice, the Court of Appeal has got round the rule against making sentences more severe on appeal by directing, in completely unmeritorious cases, that some of the time served awaiting an appeal should not count towards the sentence. It has the practical effect of increasing the sentence and it is a power the Court has shown itself more and more ready to use in recent years.

In an appeal, like Mr Robinson’s, under the 1960 Act, the Court of Appeal can “vary” Judge Marson’s order by making it more lenient, or by making it more severe. I’m not of course saying that that will happen, it would certainly be a highly unusual thing to do, but it is legally possible. It’s also possible, and perhaps more likely, that the Court could direct that some of the time served doesn’t count. That would be an increase in the sentence in all but name.

So you’re saying that the Court might actually increase his sentence?

Yes, it could.

The post Tommy Robinson’s appeal: will his world class legal team get him out of prison? appeared first on BarristerBlogger.

Source: http://barristerblogger.com/2018/07/04/tommy-robinsons-appeal-will-his-world-class-legal-team-get-him-out-of-prison/

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