A silk who faced allegations of contempt of court over his closing speech in a criminal trial has had permission to appeal granted – after the Court of Appeal found the Administrative and/or Divisional Court lacks jurisdiction to consider a contempt allegation without an application from the attorney general.
Rajiv Menon KC is accused of misleading the jury and ignoring the judge’s directions during his closing speech in a trial at Woolwich Crown Court in which he represented one of six activists accused of breaking into the Elbit Systems factory, near Bristol, causing an estimated £1 million of damage.
None of the defendants was convicted. Following a retrial, a jury last week found four of the defendants, including Menon’s client Charlotte Head, guilty of criminal damage.
Woolwich Crown court decided of its own motion to proceed against Menon and referred the matter to a Divisional Court. Later, Lord Justice Edis issued an order of the Administrative Court ordering that the matter be listed for a directions hearing at the Royal Courts of Justice where the contempt allegations were to be considered. Following that hearing, the court directed that a summons be drawn up.
Menon applied to appeal the Administrative Court order under six grounds, including that the court erred in law and had engaged in a serious procedural irregularity in assuming it had jurisdiction to hear and consider an allegation of contempt.
Ruling on jurisdiction, Lord Justice Bean, vice president of the Court of Appeal, civil division, Lord Justice Dingemans, senior president of tribunals, and Lord Justice Stuart-Smith said today ‘a superior court of record has power at common law to deal summarily with contempt in the face of the court’ and ‘any court, whether “superior” or “inferior”, may refer a case of contempt in the face of the court to the attorney general’.
The ‘overwhelming weight of authority’, the CoA said, indicates ‘no…direct route exists’ in which a Crown court judge could refer ‘an incident of alleged contempt in the face of the court directly to the High Court’.
The judges granted Menon permission to appeal, set aside Lord Justice Edis’ directions and 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’.
They said: ‘We do not underestimate the difficulties with which the trial judge was faced in the course of the trial. There was no ideal solution. No criticism could possibly be made of his decision not to attempt to take summary action during the trial.'
It would have been open to the trial judge to refer the alleged contempt to the attorney general, or to the Bar Standards Board as an alleged breach of the code of conduct. Alternatively if a summary process was needed, the alleged contempt could have been referred to another High Court judge sitting as a judge of the Crown court. ‘But in our view he had no jurisdiction to make a direct reference to the High Court; nor would the Divisional Court have jurisdiction to deal with the case following the direct reference.’
The case is referred back to the trial judge.
Menon's solicitor, Jenny Wiltshire, head of serious and general crime at litigation specialist Hickman & Rose, said: 'Rajiv is 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 and 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.
'This unprecedented attempt to criminalise lawyers for doing their job and representing their clients fearlessly should never be repeated.'
