Contempt case continues

After Rajiv Menon KC wins appeal, judge to decide what happens next

A leading barrister in two recent Palestine Action trials who was waiting to hear whether he will face proceedings for contempt in the face of the court has been told that the next step will be a matter for the original trial judge.

After hearing further argument, Mr Justice Johnson may decide to refer the alleged contempt to the attorney general; the judge may refer it to the Bar Standards Board as an alleged breach of the barristers’ code of conduct; or he may take no further action.

But the Court of Appeal said yesterday that Johnson had no jurisdiction to make a direct reference to the High Court, as he did in January. For that reason, it allowed an appeal by Rajiv Menon KC and set aside directions given by Lord Justice Edis in March.

Rajiv Menon KC

Lords Justices Bean, Dingemans and Stuart-Smith also granted a declaration “that the Administrative Court and/or the Divisional Court have no jurisdiction, in the absence of an application by the attorney general, to consider the allegation of contempt against Mr Menon”.

In my report of this case last week, and without access to the arguments put to the Court of Appeal on 30 April by Menon’s counsel Adrian Waterman KC and Anthony Hudson KC, I tentatively observed that it was “less common these days for contempt cases to be brought on the court’s own initiative rather than by the attorney general”.

The Court of Appeal said yesterday that Johnson could have referred the case to another High Court judge sitting as a judge of the Crown Court if a summary process was thought to be required. But he had no jurisdiction to make a direct reference to the High Court; nor would the divisional court have had jurisdiction to deal with the case following the direct reference.

Giving judgment, the appeal judges said the leading modern case on contempt in the face of the court was Balogh v St Albans Crown Court, decided by Lord Denning and two other appeal judges in 1974. The facts, as summarised by the then master of the rolls, are as unforgettable as his style is unmistakable:

There is a new court house at St Albans. It is air-conditioned. In May of this year the Crown Court was sitting there. A case was being tried about pornographic films and books. Stephen Balogh was there each day. He was a casual hand employed by solicitors for the defence, just as a clerk at £5 a day, knowing no law. The case dragged on and on. He got exceedingly bored. He made a plan to liven it up. He knew something about a gas called nitrous oxide (N₂O). It gives an exhilarating effect when inhaled. It is called “laughing gas”. He had learned all about it at Oxford.

During the trial he took a half cylinder of it from the hospital car park. He carried it about with him in his brief case. His plan was to put the cylinder at the inlet to the ventilating system and to release the gas into the court. It would emerge from the outlets which were just in front of counsel’s row. So the gas, he thought, would enliven their speeches. It would be diverting for the others. A relief from the tedium of pornography.

So one night when it was dark he got on to the roof of the court house. He did it by going up from the public gallery. He found the ventilating ducts and decided where to put the cylinder.

Next morning, soon after the court sat, at 11.15, he took his brief case, with the cylinder in it, into court No 1. That was not the pornography court. It was the next door court. It was the only court which had a door leading up to the roof. He put the brief case on a seat at the back of the public gallery. Then he left for a little while. He was waiting for a moment when he could slip up to the roof without anyone seeing him.

But the moment never came. He had been seen on the night before. The officers of the court had watched him go up to the roof. So in the morning they kept an eye on him. They saw him put down his brief case. When he left for a moment, they took it up. They were careful. There might be a bomb in it. They opened it. They took out the cylinder. They examined it and found out what it was.

They got hold of Balogh. They cautioned him. He told them frankly just what he had done. They charged him with stealing a bottle of nitrous oxide. He admitted it. They kept him in custody and reported the matter to Mr Justice Melford Stevenson who was presiding in court No 1 (not the pornography court).

At the end of the day’s hearing, at 4.15 pm, the judge had Balogh brought before him. The police inspector gave evidence. Balogh admitted it was all true. He meant it as a joke. A practical joke. But the judge thought differently. He was not amused. To him it was no laughing matter. It was a very serious contempt of court.

Balogh said:

“I am actually in the wrong court at the moment... The proceedings which I intended to subvert are next door. Therefore, it is not contempt against your court for which I should he tried.”

The judge replied:

“You were obviously intending at least to disturb the proceedings going on in courts in this building, of which this is one... You will remain in custody tonight and I will consider what penalty I impose on you... in the morning.”

Next morning Balogh was brought again before the judge. The inspector gave evidence of his background. Balogh was asked if he had anything to say.

He said:

“I do not feel competent to conduct it myself. I am not represented in court. I have committed no contempt. I was arrested for the theft of the bottle. No further charges have been preferred.”

The judge gave sentence:

“It is difficult to imagine a more serious contempt of court and the consequences might have been very grave if you had carried out your express intention. I am not going to overlook this and you will go to prison for six months... I am not dealing with any charge for theft... I am exercising the jurisdiction to deal with the contempt of court which has been vested in this court for hundreds of years. That is the basis on which you will now go to prison for six months.”

Balogh made an uncouth insult: “You are a humourless automaton. Why don’t you self-destruct?” He was taken away to serve his sentence.

Eleven days later he wrote from prison to the Official Solicitor. In it he acknowledged that his behaviour had been contemptible, and that he was now thoroughly humbled. He asked to be allowed to apologise in the hope that his contempt would be purged. The Official Solicitor arranged at once for counsel to be instructed, with the result that the appeal has come to this court.

Allowing Balogh’s appeal, Denning’s court said that although Melford Stevenson had jurisdiction to send him to prison he should not have done so. The summary procedure should be used only in exceptional cases where it was imperative for the court to act immediately.

“The clear message from that case,” said the Court of Appeal yesterday, “is where the need to act is not urgent and imperative, the judge in the Crown Court, whatever his personal rank, should leave the matter to the attorney general.”

It’s not known how and when Johnson will deal with the case now it’s back in his court. But the attorney general’s office has published guidance on the law officers’ power to institute contempt of court proceedings.

They say that “this is a power to be exercised sparingly, with most proceedings being instituted by judges or other parties involved in the case”.

Reaction

In a statement yesterday, Menon’s chambers said:

Garden Court Chambers and Rajiv Menon KC are delighted that the Court of Appeal has found in his favour and decided that the Filton trial judge did not have the power to refer him directly to the High Court to be prosecuted for contempt of court.

The Court of Appeal also found that the High Court did not have the power to accept the reference in the absence of an application by the attorney general in the public interest.

We would like to thank all those who have supported Rajiv during this difficult time and hope that this is now the end of the matter.

This unprecedented attempted prosecution of Rajiv for contempt has wider constitutional implications.

We are extremely concerned about the chilling effect on the bar of the state seeking to criminalise barristers for their representation of their clients. This should never be repeated.

Update 0945: the Bar Council has also encouraged Johnson to take no further action.

Kirsty Brimelow KC, chair of the bar, said:

I have followed with concern this exceptional attempt to refer Rajiv Menon KC for contempt of court. A barrister has a duty to represent their clients fearlessly and judge-instigated contempt proceedings risk a chilling effect on the profession.

The Court of Appeal judgment is welcomed and it is hoped that this now is an end of this troubling episode.