Court of Appeal judges have criticised conduct at a High Court hearing where a man accused of being a ticket tout by Wimbledon officials was told he was in contempt of court and received a suspended prison sentence.
However, in Luke McKay v All England Lawn Tennis Club (Championships) Limited and All England Lawn Tennis Ground Plc, handed down yesterday, the appeal court said the ‘procedural and other defects’ in the conduct of the November hearing were not so grave as to allow McKay's appeal.
The Court of Appeal dismissed all five grounds of appeal against the November order. It said a second appeal, against the December order, added nothing in substance to the first appeal and dismissed it.
However, giving the lead judgment, Lord Justice Henderson said a careful and cautious approach was clearly called for at the November hearing, which was the first fully effective hearing of the committal application. ‘Regrettably, however, the judge descended almost immediately into the arena by engaging in the lengthy dialogue with Mr McKay which I have recounted,’ Henderson LJ said.
‘At no stage was Mr McKay informed of his absolute right to silence, or of his privilege against self-incrimination. Nor did the judge seek to find out whether he was content to proceed without legal representation, or whether he might wish to apply for a further adjournment. Instead, the judge proceeded, through the use of leading questions, to extract from Mr McKay admissions that he had not done what he was ordered to do, and that he was thereby in contempt of court.’
Henderson LJ said he had no doubt that the judge was acting with the best of intentions. ‘Nevertheless, I am bound to say that in my view, as disclosed by the transcript, the conduct of the hearing fell far short of the high standards expected in an application for the committal of an unrepresented litigant in person. Where the liberty of the subject is at stake, procedural fairness is of cardinal importance; and if the defects in an application for committal are material, in the sense of rendering the process unfair or unjust, this court will have no option but to allow the appeal, regardless of the underlying merits, on the simple ground that the defendant was denied a fair trial.’
However, in the present case, ‘a hearing conducted with appropriate caution and circumspection could not realistically have led to a different outcome’.
Lord Justice Hickinbottom said the ‘unfortunate’ procedural deficiencies ‘clearly gave rise to no unfairness or injustice’ to McKay. Lady Justice Simler agreed with both judges.
The parties were asked to consider and agree the appropriate mechanism for activating McKay’s sentence ‘having regard to the practicalities in the ongoing coronavirus crisis’. Henderson LJ said they should consider incorporating a ‘final short opportunity’ for McKay to purge his contempt.