The Secret Barrister: “Tommy Robinson, the former leader of the English Defence League, convicted fraudster, sometime-football hooligan and self-reinvented free speech advocate, was today arrested outside a court building after livestreaming footage of participants in a criminal trial. And, if social media’s finest and angriest racists are right, this is as deep a cut to the arteries of free speech as it is possible to score.
Stephen Yaxley-Lennon, to use him by the name under which he has been most frequently convicted, was arrested today outside Leeds Crown Court having video recorded a number of men – including defendants involved in a live trial – entering the court building, and livestreaming the footage on Facebook in what is said to be an attempt at legitimate court reporting.
West Yorkshire police, having been alerted to his activities, arrested Lennon at the scene for a suspected breach of the peace, bundled him into a police van, and his whereabouts are currently unknown. Speculation is buzzing on Twitter as to what has happened to him, and it is further said that there is a reporting restriction in place.
So quite what is going on?
Well, without any clear reports, it is difficult to say, and mindful of a possible reporting restriction, we must tread very carefully. But what we do know is that Lennon is presently subject to a suspended sentence of imprisonment, imposed last year after he was held to be in contempt of court. On that occasion, during the course of a rape trial at Canterbury Crown Court on which he was “reporting”, Lennon recorded a broadcast in which he referred to the defendants as “paedophiles” and attempted to video them, before settling for doing an on-camera speech inside the court building
Taking photographs or moving images inside a court building is one of the most obvious contempts of court you can commit (section 41 of the Criminal Justice Act 1925). Court buildings are plastered with signs reminding people not to do this. Contempt of court is a broad, catch-all term for various offences against the administration of justice. The law(s) of contempt are designed to safeguard the fairness of legal proceedings and maintain the authority and dignity of the court. Contempt can thus be committed in various ways, from taking a photograph (or even drawing a picture – court sketch artists have to draw outside the court from memory) to abusing a judge, to publishing news reports or tweeting comments that could prejudice the fairness of a trial if a jury were to see them.
In particular, there is a common law offence of “criminal contempt”, which is defined by the courts as “conduct that denotes wilful defiance of, or disrespect towards the court, or that wilfully challenges or affronts the authority of the court or the supremacy of the law itself.”
It is unclear from the reports of Lennon’s case last year whether he was dealt with for a s.41 contempt for the filming, or a criminal contempt for his broader conduct in wilfully creating a real risk of prejudice to the administration of justice. Either way, Lennon was hauled in front of the judge hearing the trial.
The procedure for a court dealing with a criminal contempt is set out in the Criminal Procedure Rules. These allow for a “summary procedure”, where the court, having made its own enquiries and offered a contemnor (for that is the official term) the chance to seek legal advice, can deal with the offender straight away. The Crown Court can commit a contemnor to prison for up to two years. Reading between the lines of the reports, this summary procedure appears to have been deployed last time round, and Lennon was sentenced to 3 months’ imprisonment suspended for 18 months. The judge told him:
“This is not about freedom of speech or freedom of the press. This is not about legitimate journalism or political correctness. It’s about justice and ensuring that a trial can be carried out justly and fairly, and ensuring that a jury is not in any way inhibited in carrying out its important function.”
Which really makes sense. Because running around a court building shouting “paedophile” at defendants during a live trial, or live-streaming defendants and members of the public – potentially including jurors – entering and exiting a court building against a tub thumping narration of “Muslim paedophile gangs”, is hardly conducive to ensuring a fair trial. And if there can’t be a fair trial, nobody gets justice. Not the accused, not the complainants, not the public.
As for the sentence Lennon received, a suspended sentence order means that, for the duration of the “operational period” – in this case 18 months – the prison sentence hangs over you. If you remain offence-free and comply with any requirements the court makes, you will never have to serve your sentence.
If you reoffend, the presumption in law is that you will serve that prison sentence, additional to whatever sentence you receive for the new offence. So if, hypothetically, you received a suspended sentence for contempt of court, and then went and did something virtually identical that threatened to derail or interfere with the fairness of or otherwise prejudice a live criminal case, you could expect to have your suspended sentence activated, and a consecutive sentence added for the new infringement.
Furthermore, the judge on the last occasion imposed reporting restrictions (presumably under section 4(2) of the Contempt of Court Act 1981), postponing reporting of the details of Lennon’s contempt until the trial had concluded, for obvious reasons.
A media circus and orchestrated attempt at martyrdom by Lennon and his deranged followers would present exactly the sort of distraction that threatened to disrupt the very serious criminal proceedings that the judge was desperately seeking to keep on the rails. Once the trial itself was over, Lennon’s misdeeds and penalty could be reported.
So that’s where we were last year in 2017. As to what has happened in 2018, now that Lennon has apparently decided to indulge in similar vigilante “journalism”, we may have to wait and see. Although faint dots may be visible to those inclined to join them.
More information on contempt of court and reporting restrictions can be found on this very helpful page on the Crown Prosecution Service website.