Contempt case can continue

High Court judge to decide whether Rajiv Menon KC should face proceedings

The Crown Court should decide whether a leading barrister who appeared as defence counsel in the recent prosecution of Palestine Action activists was in contempt of court, the trial judge ruled yesterday. Mr Justice Johnson said the issue should be decided by another High Court judge, to be selected by the presiding judge of a different circuit.

Rajiv Menon KC

Johnson had originally made a direct reference to the High Court of comments made by Rajiv Menon KC, a procedural move which the Menon’s counsel had successfully challenged in the Court of Appeal. I reported last month that appeal judges had left Johnson with three options: to refer the alleged contempt to the attorney general; to refer it to the Bar Standards Board as an alleged breach of the barristers’ code of conduct; or to take no further action.

In a judgment published yesterday, Johnson rejected those options — concluding that action was needed but deciding that the first two options would take too long. Instead, he relied on a fourth option mentioned by the Court of Appeal — to refer the alleged contempt to another High Court judge, sitting as a judge of the Crown Court, for the initiation of summary contempt proceedings.

Following a hearing last Friday which Johnson sat as the trial judge, he dismissed submissions by Adrian Waterman KC that it was now too late to initiate contempt proceedings. Although Johnson is himself a presiding judge, he accepted Waterman’s argument that he should not select the judge who would take on the case.

Accordingly, Johnson said:

this matter will now be referred to another presiding judge. Mr Waterman suggested that, to ensure consistency, it should be a presiding judge on the South East Circuit who has responsibility for criminal matters. I do not consider that is essential.

What is more important is that it is a presiding judge who is available and has capacity to deal with the matter expeditiously. I will ask the Office of the Senior Presiding Judge to identify a presiding judge and I will direct the court officer to refer the matter to that presiding judge.

That presiding judge can then decide, after considering this judgment and the existing papers, whether they consider it appropriate to institute contempt proceedings. If so, they may do so either by way of an order in the form appended to this judgment, or in such other form as they consider appropriate. They can then arrange for the hearing to be assigned to a High Court judge sitting in the Crown Court.

But Johnson added an important qualification:

I stress that nothing in this judgment decides that Mr Menon has acted in contempt of court. That can only be decided if contempt proceedings have been instituted and then only if a judge finds that a contempt has been established to the criminal standard of proof.

Nor have I decided to institute contempt proceedings. I have, instead, decided that the papers should be referred to a presiding judge in order to determine whether contempt proceedings should be instituted.

In reaching that conclusion I have necessarily considered whether certain threshold conditions are met: that there is a case to answer in contempt, that contempt proceedings are in the public interest, and that it is more appropriate for the court to institute contempt proceedings than to refer the matter to the attorney general.

This will, however, all be for the presiding judge to decide: my findings do not bind the presiding judge. The presiding judge will only institute contempt proceedings if they consider that is the appropriate and justified step.

In an appendix to yesterday’s judgment, Johnson quoted seven pages of submissions made by Menon on 8 January as counsel for Charlotte Head at her first trial, marked to indicate the passages the judge thought were incompatible with rulings and directions that he had given earlier in the hearing.

Garden Court Chambers said last night:

The unprecedented contempt of court proceedings brought against Rajiv, a senior silk and former head of chambers, undermine and diminish our system of criminal justice.

The administration of justice depends upon an independent bar willing and able to act in the best interests of their clients, fearlessly and with integrity.

This attempt to criminalise a member of the bar over the contents of a closing speech made in defence of their client has sent shock waves through the legal profession.

The impact of these proceedings is already being felt by the criminal defence community, especially juniors, with concerns that public confidence in the independence of the bar and the integrity of our system of justice will be damaged.

The original contempt proceedings, which were subsequently found to have been brought unlawfully, were initially subject to reporting restrictions and were pursued as Rajiv’s client, one of the Filton Four, was facing re-trial and subsequent sentencing.

Despite the concerning nature of the attempt to prosecute him, Rajiv’s absolute priority throughout has been the discharge of his duty to represent his client fearlessly and to do everything possible to seek the best outcome for his client.

Support for Rajiv from the bar and the wider legal community has been overwhelming. Many friends, colleagues, and supporters have spoken up, attended hearings and expressed their solidarity with Rajiv.

After a day-long hearing, Mr Justice Jeremy Johnson’s order of today, 22 June, will lead to Rajiv being referred to a presiding judge for his or her consideration of whether to pursue a criminal prosecution against him for contempt of court.

We now await the outcome of that as the next step in this already protracted process.

Whatever happens, Garden Court Chambers will continue to support Rajiv through this difficult time.

Do right. Fear no one.

• Thanks to the reader who pointed out that it’s the Crown Court that is being asked to decide this case, not the High Court as I wrote originally.