Barristerblogger had a day in Town on Wednesday; coinciding with both the Cliff Richard judgment and the Tommy Robinson appeal.
A New Attorney-General
While the Cliff Richard judgment was being delivered, a little down the corridor in the Lord Chief Justice’s court a new Attorney-General was being sworn-in before a bench full of colourfully be-robed (and in the LCJ’s case be-chained) judges in their splendidly absurd full-bottomed wigs. Down in counsels’ row the new Attorney-General too was full-bottomed. The court clerk even had an extraordinary black tricorn contraption which she seemed to have some difficulty balancing on her own full-bottom wig.
Who, though, was that ordinary-looking man squeezed in at the end of the judges’ bench? Nobody seemed to know, but eventually it turned out he was David Gauke, the Lord High Chancellor of England. He had acquired a yellow and black robe from somewhere, but no wig, so amongst all the bigwigs he looked like a man in a lounge suit at a white tie dinner. He gave a short but sensible speech, leavened with the sort of bland humour that is expected on these occasions.
Pushing and shoving for the best seats
Whilst this solemn ceremony was going on, there was a great deal of polite pushing and shoving in the stalls as members of the public, Barristerblogger included, manoeuvred to grab the better seats in the house. For a time, it was standing room only and as the encomiums to the new Attorney-General continued to flow from the bench, who should slip to the front of the queue, face down in his twitter notifications, but Tommy Robinson’s greatest supporter, PR Svengali and chief fund-raiser, flown over from Canada at Tommy’s special request, none other than Rebel Media’s Ezra Levant.
Fortunately the pushing and shoving proved to be unnecessary. The Attorney-General was safely sworn in. The bigwigs and the no-wig filed off the bench and the Attorney-General’s entourage melted away to be replaced by Tommy Robinson’s supporters and various journalists. I found a seat just in front of a man with a chestful of glittering medals and we sat and waited for the main event. Apparently over on the other side of the courtroom (huge by the standards of most courts) there was some sort of disturbance with supporters being ushered out, but if so it was a fairly genteel ejection which I didn’t notice.
The ceremony of the video link
Before long a video link was established to HMP Onley, and the man himself became visible, although not immediately audible. The clerk in the full-bottomed wig and tricorn had been replaced by soemone more conventionally dressed, although by way of compensation for the lack of a tricorn he did have a beautiful French accent. He perfected the audio link and exchanged a little badinage with the appellant. As far as one could see Robinson looked well, and he seemed cheerful and relaxed as the usual unsuccessful efforts were made to improve the quality of the video-link.
The lawyers appear
“special interest in Appellate work, bringing unrivalled analytical skills, commitment, dedication and thoroughness to the prospect of finding potential new avenues of successful appeal. Fearless in his approach, relentless in pursuit of the desired result.”
There had previously been some confusion over when the appeal was going to be heard. Originally. According to Rebel Media’s money-raising page it had originally been listed for 10th July. Then, on 3rd July it was apparently given another date. It had been a cue for Rebel Media, and especially Ezra Levant, to go into hyper-ventilation mode:
Tommy’s legal appeal, scheduled for next week in London’s Royal Courts of Justice, has been cancelled.
The excuse? The government’s lawyers say they’re not ready.
That’s a damnable lie, of course.
Tommy has been languishing in prison since May 25th. The Crown Prosecution Service — what could be called the UK’s largest law firm — has had a month and a half to prepare. They have every legal expert at their disposal. They have unlimited resources.
But they simply want Tommy to rot in jail longer.”
Everyone in court was now waiting for the appearance of the CPS team. After telling lies to ensure that Tommy rots in jail for as long as possible, we could only speculate as to what their next trick would be.
The Amicus Appears
Eventually a single QC – no junior counsel – came into court carrying a small ring-binder and sat on the Respondent’s side of the court. It seemed odd that the “UK’s largest law firm” had decided not to accompany their silk to court, or even to instruct a junior. Perhaps they were running scared of Tommy’s army, preferring to manipulate the result of the appeal by exerting improper influence on the list office. Would they pull a last minute trick by pretending not to be ready?
However, it turned out that the single barrister was not actually anything to do with the CPS at all. In fact the CPS had had nothing to do with the appeal. Lewis Mably QC, was what used to be called an amicus curiae and is now known as an “advocate to the court.” He was appointed, he told me, but not instructed, by the Attorney-General, not the CPS. His role was not to support or oppose the appeal but to assist the court with the law from a position of complete independence. According to the Legal 500 he is “fantastically bright” and “completely unpretentious,” and that seems a fair assessment.
The fact that the CPS weren’t actually opposing the appeal, in fact weren’t actually involved in any way, seems rather to deflate Mr Levant’s assertion that they had told damanable lies to ensure that Tommy would rot longer in jail.
The Judges reappear
The judges themselves filed back into court. Gone were the colourful robes and full-bottomed wigs. All three – Burnett LCJ, Mr Justice Turner J & Mrs Justice McGowan – were now dressed identically in plain black, and wearing just their short “working” wigs.
An irrelevant digression
The Lord Chief Justice was in genial mood. The last time I saw him he was the second junior at the Kings Cross inquiry where I had been another junior barrister. I was reminded of the Eighteenth century poet William Cowper who, while reading for the bar, shared lodgings with another student called Edward Thurlow. One day the pair were drinking tea in Bloomsbury (Thurlow normally preferred a coffee shop called Nando’s in Fleet Street). Cowper, who recognised his limitations as a lawyer, said to Thurlow:
"Thurlow, I am nobody, and shall always be nobody, and you will be Lord Chancellor. You shall provide for me when you are ! "
Thurlow smiled and replied:
“I surely will.”
The prediction came partly true. Cowper was a hopeless barrister, bored by the law and terrified of public speaking. As a result he never received a single brief. He suffered a mental collapse and had to recover in an asylum. He did eventually become a popular (though never wealthy) poet but for many years he lived in obscurity in “the least reputable quarter” of the Buckinghamshire town of Olney. At the time it was a miserable rural backwater where he had to put up with the “screaming of children … engaged in a sport which they called hockey, but which consisted essentially in bespattering each other and the windows of the houses with mud, … putrid exhalations [and] the fishy fumes of marsh miasma….” Cowper consoled himself with his pet hares which he fed on thistles and sliced carrots.
Thurlow, meanwhile, prospered at the bar, survived a duel and in due course did indeed become Lord Chancellor, just as Cowper had predicted. He was a nasty piece of work, as anyone might have guessed from the fact that his favourite boyhood sport was “cock-throwing” a singularly unpleasant amusement in which a cock is tied to a post and participants then take turns throwing sticks at it until it dies.
Unsurprisingly he never honoured his promise to his former friend, and appears to have been “as unamiable in his private life as he was rash, domineering and headstrong in public affairs.” It is not known whether he carried on cock-throwing after his elevation to the woolsack.
The Appeal Begins
Where was I?
The current Lord Chief Justice could hardly be less like Thurlow. He is neither rash nor domineering nor headstrong.
He politely reminded the public gallery of the reporting restrictions that remain in place and of the need for decorum in court. On the other hand reporting of the appeal proceedings was fine, and he went out of his way to encourage tweeting.
Most of the rest of the morning was taken up with Mr Dein’s submissions.
Everything is being appealed
The biggest surprise was that Robinson – contrary to every indication given by Rebel Media – was indeed challenging the actual findings of contempt; and not just Leeds in May 2018 but also Canterbury in May 2017.
Appeals normally need to be lodged within 28 days, although the court does have a discretion to extend the time limit, even after it has expired.
Robinson was “out of time” with both appeals: as the Lord Chief Justice observed, one year and twenty three days late with the Canterbury appeal and 20 days late with the Leeds appeal. Dein set out a timetable to explain his involvement, to explain why the court should extend the time limits. He seemed on much stronger ground with the Leeds case than the Canterbury one.
His explanation for the delay, and it seemed very plausible, was that he had struggled to get all the information and instructions he needed to draft the grounds of appeal. There had been difficulties getting a transcript and arranging conferences, and the conference he did have in Onley prison had only lasted 55 minutes (although how essential it was to have a longer conference may be open to question; had Mr Robinson been on legal aid it is doubtful that the junior barrister assigned to his case would have been paid for any conference at all).
Amidst a flurry of dates it turned out that the Grounds of Appeal had not actually been submitted until 12th July.
This revelation puts something of a gloss on Rebel Media’s assertion that the the Crown Prosecution Service had had “one and a half months to prepare for the appeal,” before asking for it to be adjourned on 3rd July. Not only were the CPS not involved at all; even if they had been they could not possibly have prepared for an appeal without knowing what his grounds were. The gloss is that what Rebel Media said was untrue.
In fact, for Robinson to have had his appeal heard less than a week after the filing of out of time grounds of appeal is astonishingly quick. Most appellants have to wait months.
“A conglomeration of procedural deficiencies”
Having got the preliminary point about the delay out of the way, Mr Dein then got stuck in to the meat of his argument. He made it clear that he was not disputing that at least some of the material on Mr Robinson’s live-streamed video was a contempt of court, since it disclosed details about an ongoing trial, in breach of a court order forbidding any such disclosure.
Instead, his main argument was that a “conglomeration of procedural deficiencies” meant the contempt findings should be set aside. Even though Robinson admitted he was in contempt, and even though he obviously was in contempt, the Criminal Procedure Rules had not been properly complied with. The precise nature of the contempt wasn’t spelt out in Leeds and there was no compelling need for the case to be dealt with so quickly. He may have been guilty, but both his common law rights and those under Article 6 of the European Convention on Human Rights were breached.
For those interested in the technicalities they are these:
The Criminal Procedure Rules (R.48.5.2) require that where contempt is alleged the judge should:
(a) explain, in terms the respondent can understand (with help, if necessary)—
(i) the conduct that is in question,
(ii) that the court can impose imprisonment, or a fine, or both, for such conduct,
(iii) (where relevant) that the court has power to order the respondent’s immediate temporary detention, if in the court’s opinion that is required,
(iv) that the respondent may explain the conduct,
(v) that the respondent may apologise, if he or she so wishes, and that this may persuade the court to take no further action, and
(vi) that the respondent may take legal advice; and
(b) allow the respondent a reasonable opportunity to reflect, take advice, explain and, if he or she so wishes, apologise.
The judge then has a choice: if necessary he or she can “enquire into the conduct there and then” (in the jargon “summarily”); or postpone the enquiry until some later date, when a more formal procedure is adopted, involving the service of a written statement setting out in detail what the contempt is said to be.
In Robinson’s case, argued Dein, even though he had the benefit of legal advice, not all these provisions were observed; for example he wasn’t told precisely why his conduct was contemptuous. Furthermore, he said, there was no necessity for the matter to be dealt with there and then. It should have been adjourned to a later date.
Mrs Justice McGowan suggested that there might indeed have been a need to deal with Robinson summarily; the jury deliberations in the trial about which Robinson was commentating, had been suspended while the judge tried to sort out both how to deal with Robinson, as well as any possible ramifications that his behaviour might have for the trial itself.
Dein relied principally on the case of West  EWCA Crim 1480 in which a barrister (who may be known to some readers as the popular tweeter @ianswest) was fined £500 for contempt by a Crown Court judge after ignoring the judge’s – rather tiresome – request that he return to court at 14.00. The order was quashed because, even though Mr West had very honourably declined to take the point even when it was suggested to him, the Court of Appeal found that there had not been strict provision with the rules. As Leveson LJ put it:
“In the normal course, compliance with the strict provisions of the CPR can be waived by the parties or the court; in cases of alleged contempt, however, we have no doubt that strict observance of the provisions is essential.”
The Lord Chief Justice pointed out that West had been decided without considering an earlier case also mentioned by Dein, Nicholls v. Nicholls  1 WLR 314], where the Court of Appeal had said:
As long as the contemnor had a fair trial and the order has been made on valid grounds the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside except insofar as the interests of justice require this to be done.
[The] interests of justice will not require an order to be set aside where there is no prejudice caused as a result of errors in the application to commit or in the order to commit. When necessary the order can be amended.
Although the Court of Appeal is normally required to follow its own precedents, there are exceptions: sometimes there are conflicting precedents and the Court has to decide which to follow; or a seemingly authoritative case may be undermined if it was itself decided without consideration of some earlier relevant authority.
A criminal or a civil prisoner?
Dein then raised a highly technical point: the wording of the order committing Robinson to prison described him as a convicted prisoner (in shorthand a “criminal prisoner”) rather than a person committed to prison for contempt (a “civil prisoner”). In practice a civil prisoner is treated rather like a remand prisoner. The judges seemed to think that that issue could be “tidied up” without quashing the order.
Dein was pressed on the Canterbury contempt, and in answer to a question from the Lord Chief Justice conceded that “in broad terms what happened in Canterbury was fair.”
Appeal against sentence
He then moved on to the appeal against the 13 month sentence (the suspended 3 months from Canterbury plus 10 months from Leeds) which he argued was “manifestly excessive.” He deftly avoided direct criticism of Matthew Harding, the experienced barrister Robinson was given in Leeds, by saying that his failure to make some of the points he was about to make was because the Judge had rushed the case.
An alternative explanation might be that some of the points he was about to make were not very good ones which Mr Harding sensibly left well alone.
First, he said, Robinson had shown the “maximum co-operation” by offering to have his live-stream taken down immediately. This has perhaps not made much difference in practice, since the video received huge publicity at the time and has been widely copied and available online since.
Secondly, he had not “intended to breach the order,” his contempt arose out of “naivete rather than any determined attempt to breach the reporting restriction.”
Thirdly, he was attempting to “operate as a journalist.” In support of this submission he pointed to the previously unpublicised fact that in June 2017 not only Robinson but other members of Rebel Media, had attended a training session in media law run by the law firm Kingsley Napley. It doesn’t seem to have been very effective.
Some unconvincing submissions
Like many good advocates, Dein left his worst points till last.
He relied on the fact that Mr Robinson had joined the Quilliam Foundation, an “anti-extremist think tank.” That indeed was half true. What he did not go on to say was that their relationship had since soured, and Quilliam now regards him as an unpleasant extremist. According to Quilliam, in May 2017:
“Quilliam was victim to extremist Tommy Robinson and alt-right Rebel media’s George Llewelyn-John trespassing in our office using aggressive and bullying behaviour today, after they barged in to our London address, verbally harassing and physically intimidating our staff.
Tommy proceeded to abuse and bully junior staff, failing to leave the premises when asked, eventually being escorted off-site by the police. Having arrived with a cameraman from the alt-right Rebel Media, George Llewelyn-John, they hounded Quilliam staff and repeatedly refused to have a reasoned discussion.
… we think it unfortunate that, following our efforts to engage with Tommy Robinson and help him move away from extremism, he seems to have regressed.”
Mr Dein dealt with the conditions under which Robinson was being held in prison. Quite how much these were down to Robinson’s personal choice was not entirely clear. However, the conditions were, said Mr Dein, “unacceptable.” He was, in effect, being kept in solitary confinement with only 30 minutes yard time a day and unable to work. There was no “rehabilitative aspect” to his sentence. Apparently Robinson cannot even go to church, although he acknowledged that he was not a particularly religious man. Mrs Justice McGowan did not seem impressed:
“These are complaints for the prison authorities.”
He also complained that when Robinson was last imprisoned, in 2013, this had had a “significant psychological impact” on him. He had been unable to sleep and had had “butterflies in his stomach.” The Lord Chief Justice gave no indication that he was particularly bovvered by that particular submission.
What troubled the LCJ
What did seem to trouble him was that in passing sentence (the transcript has not been made public) the Leeds judge had referred to matters which were not breaches of the reporting restriction, the implication being that these were not necessarily contempts of court.
The Amicus Replies
Mr Mably QC accepted that that might have been a problem, while suggesting, perhaps a little hesitantly, that matters which were not themselves contempts of court could still be regarded as “aggravating features.”
The fundamental point that he made, in a much shorter address, was that it must have been perfectly obvious to everyone in court what the contempt was – the breach of the reporting restrictions – and that even if some aspects of the Criminal Procedure Rules were not properly applied, no injustice had in fact occurred.
He made no submissions at all on the length of the sentence. Perhaps he took the view that as an independent advocate his job was to deal with the law rather than with the length of sentence.
The Lord Chief Justice indicated that the Court would give judgment by the end of this month, if at all possible.
No Bail Application
There was no application for bail, another surprise since for weeks Rebel Media had been promising that there would be.