Judges presiding: Lord Burnett of Maldon, Lord Chief Justice of England and Wales; Mr Justice Turner; and Mrs Justice McGowan DBE
This account of the Appeal hearing is based on notes written longhand in Court. It offers a detailed notes of the proceedings rather than a continuous transcript. The words recorded are based on those used, and certain phrases are in quote marks to indicate particular accuracy. Notes and clarifications are in square brackets.
At various points, the proceedings made reference to legal authorities, particularly the cases of West, and Nicholls vs Nicholls. The writer is unfamiliar with these, so details recorded here are incomplete. As the writer had to listen and write at the same time, there may be other omissions or mishearings.
A brief background: on 8 May 2017, Tommy Robinson had been given a three month suspended sentence for contempt of court after trying to film four Muslim men on trial at Canterbury Crown Court for raping a teenager. On 25 May 2018, Tommy Robinson was detained outside Leeds Crown Court for using social media to broadcast details of a trial which was subject to blanket reporting restrictions. He was gaoled the same day for 13 months for contempt of court by Judge Geoffrey Marson QC.
Court 4 is wood panelled with rows of bound law books on all sides. The room is high, the equivalent of several storeys, with windows at the very top. Microphones hang down on wires from various points. There are three four-foot TV screens: on the left and right walls, and the wall opposite the judges’ bench (behind the public gallery). In the front right corner (from the public’s perspective) is the dock with heavy black bars, and to the front left the press gallery. There is a large clock on the right hand wall.
At 9.55am, Louis Mably QC, wearing wig and gown, entered and took a position on the right, as viewed from the public gallery. It was assumed by the writer that Mr Mably was the prosecutor, but it transpired that he was an independent barrister appointed by the Attorney General as a “friend of the court”, meaning he was there to offer advice and comment critically on Tommy Robinson’s appeal, rather than oppose it per se.
At 10am, Tommy’s legal team enter: Jeremy Dein QC and a female junior, both wearing wigs and gowns, and two other legal members, wearing suits. They sit to the left.
At 10.15am, the three video screens come on, revealing Tommy Robinson. He looked well, slimmer, and his hair was thicker. He was wearing a long sleeved black shirt and jeans, and a belt with a decorative buckle. He was sat at a table with an empty chair beside him and a black curtain behind. Occasionally, Tommy drank from a white mug, and talked to someone off camera.
A male court official, with a foreign accent, asked Tommy, “Can you hear me?” Tommy said “Yes”. The official asked, “Can you confirm that your name is Stephen Yaxley-Lennon”. “Yes”. “Can you see your barrister”? “Yeah”. The official said he would ask Tommy to identify himself again, at the beginning of the proceedings.
Peering into his monitor, Tommy asked, “Is it meant to be so small? Can you make the pictures bigger?” Tommy held his hands about six inches apart, to indicate the screen size. The official said he could not change the screen size, and asked whether Tommy could adjust it at his end. Tommy said he had a “Big massive TV but three very small pictures”. The official said, “We cannot change that”, and Tommy replied, “Doesn’t matter, I can hear.”
From 10.23am for about a quarter of an hour, there was waiting and silence. There were three court officials to the front; the four members of Tommy’s legal team; Louis Mably QC; six members of the press; and, in the public gallery, to the back of the court room, fifty people, both men and women, of various ages. There was a black security guard to the front right of the court room, sitting in a comfy red swivel chair; it was the same type of chair as those waiting for the judges.
At various points while waiting, Tommy hunched over his table with folded arms, or leant back in the chair. At one point, he took to picking fluff off his shirt sleeve. At 10.31am, perhaps prompted by someone he could make out in the court room, he grinned and gave two thumbs up.
At 10.37am, three clerks entered from doors behind the judges’ bench and laid out folders for the judges. At 10.39am, a fair-haired female clerk said, “All rise” and the three judges entered. Sir Ian Burnett of Maldon sat in the centre, Mr Justice Turner to the left, and Mrs Justice McGowan to the right (as viewed from the public gallery).
The court official asked Tommy, again, “Can you confirm that your name is Stephen Yaxley-Lennon”. “Yes, I am”.
Lord Burnett said: “I’d like to say two things. There is a certain amount of interest in the case and it is heartening to so many people in court. However, there is likely to be technical argument, so members of the public coming and going [from the court] should do so in a manner as to not disrupt the flow of the court”.
Lord Burnett said that there had been prior discussion as to whether there should be a reporting restriction order, and whether notes could be taken in court. He said that there was no order that these proceedings be subject to a reporting restriction, and that the general rule was that notes could be taken. Members of the press could tweet, and that they were aware of the limits.
Lord Burnett reminded the court that there remained in place an order in the Leeds Crown Court prohibiting reporting of what occurred at two trials.
Jeremy Dein QC said he was “extremely mindful” that arguments had been set out in writing, and he would welcome being told if he dwelt on things of which the court was aware. He would not go into the facts of the case, as the court was aware of these.
Mr Dein said the appeals were “out of time”. Lord Burnett said Leeds was a little out of time, and Canterbury was a long way out of time: “Develop your submissions as to why the appeal should be heard”.
Mr Dein said his team had no involvement until recently, and that the case had a “chequered background” to go through. The Leeds case was on 25 May 2018, so 20 days out of time, and the Canterbury case was on 22 May 2018, so 1 year and 23 days out of time. The basis of the application for an extension of time was section 18, sub-section 3, of the 1968 Act, which gave the court the power to extend time.
Mr Dein explained that his team had been diligent: on being instructed, they had to piece together a history of proceedings. Throughout, communication with the appellant [i.e. Tommy Robinson] was “extremely difficult” owing to his being in solitary confinement. The first contact from the appellant’s representatives was 6 June 2018, and authority to proceed was signed on 12 June 2018. On this date, the appellant was transferred from HMP Hull to HMP Onley, where he was kept in solitary confinement, with limited access to telephone.
They had to construct an audit trail of events, with the co-operation of former solicitors and counsel. On 13 June, transcripts were ordered from Leeds and Canterbury courts. Counsel had arranged to meet Tommy Robinson on 15 June, but that meeting was cancelled due to the appellant’s transfer from HMPHull to HMP Onley.
It was then discovered that parts of transcripts from Leeds were missing, so these needed to be obtained. On 21 June, a visit to the appellant scheduled for two hours lasted only 55 minutes, as it took prison staff 1¼ hours to fetch him from his cell [Mr Dein might have meant to say 45 minutes].
On 22 June, the missing transcripts arrived. On 29 June, something [unclear] was listed for 10 July. A meeting between the appellant and Rowan and Carson [?] was cut short by 60% [the writer is unsure whether this was a second meeting, or another reference to the meeting on 21 June]. On 12 July 2018, the legal team submitted its application for appeal. It had been diligent.
Lord Burnett said there was nothing here [regarding delays] about Canterbury.
Mr Dein said that the position was that the appellant had been convicted at Canterbury and given a suspended sentence, but the appellant did not know the procedures [at Canterbury] were deficient. On 25 May, at Leeds the appellant was given the 13 month sentence, but he was not advised, and did not know about deficiencies in the proceedings. Assisted by a Mr Doughty, the legal team had since set out a historical framework of the two cases, which suggested the complaint [i.e. the appeal] was well founded; there was a “conglomeration” of “errors and omissions”. There was an “impact of procedural deficiencies that have given rise to prejudice and should lead to both findings being quashed”.
Mr Dein concluded, “We have presented relevant arguments within five weeks. Justice requires that time be extended”.
Lord Burnett said: you must develop your arguments without prejudice; to which Mr Dein said: I understand.
Mr Dein said “We submit that [the case of] West requires that the Court explains the case in terms that the appellant understands”. Mr Dein said that this team had highlighted from the outset that matters need to be viewed in context of summary procedure; the appellant had been sent to prison within five hours. Compliance with procedure is essential due to the summary nature, and the impact on the liberty of subjects. The case of Nicholls vs Nicholls 1997 found that an order can be upheld in the event of non-compliance. The case of West, however, overrides Nicholls vs Nicholls, since it took place in 2014.
Mrs Justice McGowan said West did not cite Nicholls vs Nicholls.
Lord Burnett said that one of the cases took what might be described as the “orthodox approach”.
Mr Dein referred to remarks by Lord Justice Leveson and continued that: we submit that in the modern world, prejudice and injustice is not restricted to factual disadvantage, but flaws in procedural flows. The [Leeds] judge should “not have proceeded summarily in these circumstances”. Summary justice exists to uphold judicial authority for the “good order of the Kingdom”, but it “should not apply automatically”.
Lord Burnett summarised the issue: in Leeds, steps to remove material from circulation were dealt with consensually. Therefore, there was no threat to the trial, so the judge should not have proceeded summarily.
Mr Dein said that the appellant had offered to have the livestream deleted. The Leeds Court was given this assurance from the outset. If the appeal court took the view there was no clear need for summary proceedings, the conviction should be quashed.
Mr Dein said that dealt with the matter of principle. Turning to the timetable of events, he said the livestream was running around an hour before the case, from 9.15am, and police were present. The appellant was arrested at around 10.45am, but did not get legal representation until midday. Mr Dein said it was a matter of substance for the appeal court whether the appellant was prejudiced.
Mr Dein drew attention to the “overriding objective”: to ensure that “criminal cases are dealt with justly; the innocent acquitted; the guilty convicted”. Compliance in contempt proceedings is “as greater or greater” as there is “no trial as such”; therefore, the “protection of an identifiable framework is paramount”. Mr Dein made reference to an “unequivocal observation” by Lord Justice Leveson. The nature of the contempt was not clearly identified; penalties were not laid out; the Leeds hearing was a “highly pressurised environment” in which the appellant was not permitted to reflect or take advice. The proceedings were “unnecessarily and unjustly rushed”. The appellant had asked for time to instruct a QC.
Mr Dein said that it was an “important point” that Mr Harding [Tommy’s defence barrister at Leeds] had not asked what type of contempt had been said to have been committed. At the beginning of sentencing, the appellant was told by the Leeds judge, “You have admitted contempt”.
Mr Dein was asked by one of the judges for clarification on whether the appellant admitted contempt; Mr Dein said Mr Harding “made a number of concessions” and said that the appellant was sorry.
At 11.20am, Mr Dein said that the appellant had been incorrectly sentenced as a criminal prisoner than a rather than civil prisoner; he added that there was no difference between him and Mr Mably on this point. The “wrong label” was assigned to the case.
Lord Burnett said this was “form over substance”, and could be corrected on appeal. Mr Dein said it was not form over substance because prejudice had been created by the error of labelling. Lord Burnett mused that a civil prisoner would be treated in the manner as unconvicted prisoners, such as having their own clothing.
Mr Justice Turner asked whether there was a breach of the reporting restriction. Mr Dein said, “It has to be accepted there was such a breach”.
Lord Burnett said, “What happened in Canterbury was fair”. He said that conduct was clear and that there had been an adjournment. There was a great deal of difference between Canterbury and Leeds, he said.
Mr Dein said, “I have to accept that point”.
Mr Dein said that the sentence at Leeds was “manifestly excessive”. He said the case of Montgomery 1995 was helpful; right from the outset, the appellant had offered to take the livestream down. He had no wish to disrupt the Leeds case. He offered no stubborn defiance and he had no impact on the Leeds trial, despite the defendants lawyers saying it did.
Lord Burnett said it did provoke an application by defence lawyers to have the Leeds jurors dismissed. Mr Dein replied that this did not mean it had merit. Lord Burnett said the application did not succeed, but that events did have an impact.
With regards to assessing the criminality [i.e. Tommy’s state of mind], Mr Dein said that the appellant referred to the reporting restrictions during the livestream; therefore, he had no intent to break them. The factual matters that the appellant referred to were already in the public domain. Mr Dein referred to page numbers in the bundles that gave examples of facts that had already been reported on the BBC, such as names and histories.
Lord Burnett said it was important to identify the specific information that was in breach.
Mr Dein said the appellant’s state of mind was that he had no wish to breach the court order. He maintained a distance from the court, and asked a police officer where to stand.
Lord Burnett said 4(2) [the section under which Tommy Robinson was imprisoned] was not concerned with filming on court steps. He said, “It strikes me that what lies at the heart of this submission is the absolute clarity of what the accused person is being accused of”.
Mr Dein said that seeking the advice of a police officer reflects naivety of the appellant, and indicates no desire to breach the court order or disrupt proceedings. Thirteen minutes into the livestream, three police officers are seen near the appellant. The appellant, on seeing a judge looking down on him from the window, asks, “This isn’t contempt of court, is it?”
Mr Dein said that Mr Stephen Yaxley-Lennon did not intend to breach the court order; in his own mind he was vigilant, and rather than show the judge defiance, he willingly offered redress. In June 2017, the appellant and Rebel Media attended a training session on media law. The appellant subjected himself to a rigorous course, although it obviously did not quite have the impact he hoped for [this prompted wry smiles around the public gallery].
At 11.45am, Mr Dein turned to mitigation, a “cardinal feature”. Mr Dein was keen to emphasise that he did not want to be seen to criticise Mr Matthew Harding [Tommy Robinson’s representative at Leeds]; there was no doubt that Mr Harding did his best in difficult circumstances, and did not have sufficient time. He was able to offer mitigation on the impact of the appellant’s family, including three children of seven, nine and ten. But there was in fact a “powerful package” that could be put forward: in 2013, the appellant had joined the Quilliam Foundation, an anti-extremist group. The offence at Canterbury was committed while being a journalist with Rebel Media. Since then, the appellant had been an independent online journalist. The appellant was seeking to better himself in what he saw as a legitimate cause. These mitigating facts “could and should have made a difference to the sentence”.
Mr Dein said that this “fast imposed sentence” should be reduced because of the unacceptable conditions in prison. The appellant had no disciplinary problems, but had to wait until all the other prisoners were locked up before meeting his legal team, causing a 50% reduction in meeting time. Being in solitary confinement had no rehabilitating aspect; there were only 30 minutes of yard time per day; and the appellant was not allowed work, church or education. Communication with his family was difficult, since he could only make calls at 1.30pm when his children were at school.
Mrs Justice McGowan said that the complaint was not against the prison authorities, and Lord Burnett said “… the risks are not fanciful, and that the features you [Mr Dein] identify are restrictions necessary to protect the appellant”.
Mr Dein acknowledged the prison was acting in good faith to protect the appellant, but that his conditions were those normally reserved for the most extreme, dangerous and disruptive prisoners. When the appellant had been in solitary confinement previously, there had been significant psychological impact, and this information was not available to Mr Harding. From March to July 2013, documents recorded anxiety, inability to eat and sleep, tearfulness and inability to communicate.
Mr Dein said the 10 month sentence [that had been added to the three month sentence suspended at Canterbury] was too high. Mr Dein referred to pages in the bundle which set out comparisons to similar or shorter sentences where there had been deliberate contempt of court. Mr Harding had no time to compile such examples, and had to reply on only one case, that of two men who had posted online photographs of Jon Venables and Robert Thompson, leading to sentences of nine months, suspended for 15 months [note: Venables and Thompson had committed murder as children, in 1993, and were given protected identities as adults].
Mr Dein said that, from 25 May to 18 July, the appellant had been a criminal prisoner rather than a civil prisoner, and had served sufficient time. In Canterbury, the appellant was not clear what law he was being convicted under, and this finding should also be quashed.
[a phone went off in the public gallery, prompting a gaze from Lord Burnett]
Mr Dein said that the certificate of conviction referred to the taping a court hearing without permission. Lord Burnett referred to a “clerical error” and that this did not invalidate the conviction; they had to focus on what happened in court, not an error by a clerk afterwards [Tommy Robinson had been filming outside Leeds court, so the certificate of conviction’s reference to “taping a court hearing” might have been the error referred to].
Mr Dein said Canterbury imposed a suspended sentence, but did not spell out the terms and conditions. Lord Burnett said it did not have to. Mr Dein said that the Canterbury court was saying that, if you reoffend, there was prison of three months. There was not only an obligation on the Canterbury judge to identify the nature of the contempt, but to attach conditions, so that the appellant could understand what may and may not be done.
Lord Burnett summarised the point being made by Mr Dein as: a suspended committal should not be triggered by an unrelated offence.
Mr Dein said that, at Leeds, the judge had before him a suspended sentence with no conditions, and it was unfair to add ten months to the sentence.
Mr Justice Turner said that the Leeds court had put matters in generic terms, and this is what put the appellant in breach; he asked what the specific reporting restrictions were at Leeds. Lord Burnett added that, if they were to “possibly find favour” with Mr Dein’s arguments, they would need a copy of these reporting restrictions. Lord Burnett apparently had a copy in the bundle and read out that the Leeds court restricted “reporting of the proceedings”. Lord Burnett said his did not cover references to court costs, nor comments thought to be offensive to a community. Lord Burnett said to Mr Dein, “Rather than think on your feet, we will rise for ten minutes”.
When the court resumed, Mr Dein went through the transcript of Tommy’s livestream [this cannot be related, as the contents are caught by the reporting restriction that is still in place on the case to which the livestream referred].
Louis Mably QC
At 12.34pm, Mr Mably rose and said there were two distinct aspects to the appeal: finding and penalty. With regards to finding, there were three questions: what is the procedure; to what extent the procedure was followed; and what happened on the two occasions [Canterbury and Leeds].
At Leeds, Mr Mably said that the judge would have the option of referring the matter to the Attorney General, or a summary procedure; it was the latter that was invoked. The question would then be: should there be an adjournment to consider the matter?
Mr Mably said there were two procedures: criminal contempt and civil contempt. He submitted that this was a criminal case. It was “jurisdictional rather than procedural” [it is possible that Mr Mably said it was “procedural rather than jurisdictional”]. There was nothing, he said, in the CPR [Criminal Procedure Rules] to state that an order or finding of contempt was invalid if a particular aspect of the rules was not followed.
CPR was concerned with a fair trial, he said, and designed for defendants who did not have legal representation. He disputed that the case of West was an authority. He did not believe that the CPR required that any misstep should lead to an overturning of a committal when the irregularity had no bearing. In the Canterbury case, it was the act of taking of a photo in the court room [that was important], not the intent.
Lord Burnett said the photos were taken outside the building.
Mr Mably continued that the effect of the breach, and the intent, were separate, although there was a close link between the two.
With reference to the form of the committal order [the “mislabelling”], the judge had pronounced committal to prison [i.e. as a civil prisoner], but that a court official had drawn up an inaccurate document based on a proforma [leading to the criminal prisoner classification].
He said it was necessary that the appellant is given access to legal representation, so they know the position – Mr Stephen Yaxley-Lennon was given this opportunity. The Leeds court was faced with an immediate problem; they were right in the first instance to investigate the livestream.
Lord Burnett said that a “central vice” in the case was that there was no attempt to identify what precisely on the livestream was in contempt. He said that common law authorities make it necessary to identify the conduct that was in contempt, so that the appellant can contend it. Lord Burnett said that there was a lack of clarity; the matter was hampered from the very start.
Mr Mably said that the livestream was played in court; Lord Burnett said, “Not all of it”. Mr Mably said that the beginning [and/or] the most obvious parts were played.
Referring to the extent of the reporting restriction, Lord Burnett said that section 4(2) was not as broad as, for example, “I am prohibiting reporting of anything relating to these trials”. Mr Mably said it was not as broad as that, and referred to events recording at the beginning of the livestream. Looking at his paperwork, Lord Burnett said, “That appears to apply”. Mr Mably said, if there had been an adjournment, with a reduced video [presumably, to focus on relevant portions of the livestream] the appellant could have been left with a committal, perhaps of a different length.
Mr Mably said that was the end of his written note.
Lord Burnett said that this was a convenient moment to break. He said that there were two views: as in the case of West, failure to comply was fatal, versus the overriding objective in which strict compliance was not necessary. At 1.02pm, he said that the court was adjourned until 2pm; the court rose. The court official told Tommy that the video link would be kept open.
At 2.03pm, the court resumed.
Mr Dein said that he had opportunities to reflect and could respond within a ten minute timeframe. Regarding compliance, he stressed that Nichols & Nichols and Lynette & Coles [?] predated the present criminal procedure regime and the modern preoccupation with the overriding objective.
Regarding prejudice, Mr Dein listed ten points; there was no attempt to identify the precise breach or breaches; therefore, no submission was made as to the precise breach or breaches; no conference was held with the appellant as to the precise breaches, so the appellant was not told what he had done wrong; he was not [therefore] asked whether he had admitted the breaches; the judge failed to set out his powers of punishment; the judge failed to set out his powers of detention; there was a failure to allow the appellant to reflect and take advice; summary procedures were used where they should not have been; the appellant was deprived of full mitigation; and there was an invalid sentence, treating the appellant as a criminal prisoner.
Mr Dein said that he did not agree with this learned colleague [Mr Mably]; the spirit of the rules had not just not been complied with, it had been “bypassed altogether”. The appellant had been in prison for two months; this was the equivalent of four months. “Whichever variation” the judges arrived at, Mr Dein said, four months as a criminal prisoner was sufficient; the sentence should be reduced to time served.
The judges conferred briefly among themselves.
The video link went down for a moment, before being restored of its own accord.
Lord Burnett said that the judges would, “see where we are; we will return to court as soon as we can”. They filed out at 2.15pm.
While the court waited, supporters of Tommy sat and talked. The fair-haired court official told off a woman for taking a selfie, and ordered her to delete the photo. Tommy momentarily took to blowing balloons in his cheeks.
At 2.31pm, after what seemed a long time, the judges returned. Lord Burnett said: “Mr Dein, it will not surprise you to know that, due to the complexity of the case, we need to take some time to consider our judgement. We will try our level best to complete before the end of July”.
Tommy Robinson half-smiled resignedly, folded his arms and leant back.
Lord Burnett added that the judges were “enormously grateful” to Mr Dein and his team, and to Mr Mably, and also to everyone in the public gallery for adhering to his request at the beginning of the hearing. The court rose and the judges left.
As the public left, some moved forward into the line of camera and exchanged waves with Tommy, who was leaning towards his screen to make out faces.
On leaving the court, the writer saw UKIP leader Gerard Batten, and MEP Janice Atkinson and blogger David Vance arrived shortly afterwards. Supporters congregated outside the court and stayed for some time.