Law Review: Bad law, bad judging and bad misrepresentation of law by a government minister..?.

Contempt of Court…

41 Prohibition on taking photographs, &c., in court.

(1) No person shall—

(a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or

(b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof;

and if any person acts in contravention of this section he shall, on summary conviction, be liable in respect of each offence to a fine not exceeding fifty pounds.

With this provision in mind, the imprisonment of a young man by Judge Barbara Mensah cannot be under s. 41 as reported in the press and must fall under the general common law of contempt – a common law, widely accepted as being subject to the requirement of ‘sparing use’.

Caveat:  In what follows, I am assuming that the facts reported on the BBC website and in the Press are accurate.  One cannot these days, unfortunately, always be sure of that.  There may be more to the ‘contempt’ than meets the eye and if more serious contempt is proven, then the judge will not have erred on the issue of sentence

Assuming for the purposes of this blog post that the contempt committed by the young man was limited to taking the photograph and other non-serious disruption:

CPS guidelines note:

A Crown Court may deal with contempt “in the face of court” when the contempt is committed either:

  • in the courtroom itself (for example, interrupting or interfering with the proceedings); or
  • in the court building where it has been reported to the judge (for example, threatening a witness waiting to give evidence); or
  • beyond the courtroom and the court’s precincts, when it is reported to the judge and it relates to proceedings whether in progress or pending (for example, improper approaches to witnesses or jurors).

The judge should exercise the power only when it is urgent and it is important to act immediately (Balogh v St. Albans Crown Court [1975] 1 Q.B 73). In Balogh, Lord Denning stated that, where there was not this urgency, the most appropriate course was to refer the matter to the Attorney General so that he or she could consider bringing proceedings in the Queen’s Bench Division.

While one understands the need for robust contempt rules in circumstances where a person in court is behaving in a manner which seriously disrupts proceedings or behaviour is threatening to judge, officials and witnesses, or in the case of  taking photographs involves witnesses – these conditions appear not to have been out in the present case.  If that is right – then, with respect to the judge, the sentence appears to be unduly robust and some may say, even harsh.

I am grateful to solicitor David Allen Green for sending me a pdf of the report in

The case is important in the context of this issue.  The court noted instances where the taking of photographs could result in a serious threat to witnesses or give rise to serious disruption of the trial.  What is interesting is the observation at the end of the report…

“In an appropriate case immediate imprisonment was likely.  There might be factors of mitigation such as a guilty plea.. the youth of the offender, a genuine apology, or ignorance or innocence on the part of the person involved.  Their Lordships were not impressed with the suggestion that the photographs were taken in ignorance of the prohibition on courtroom photography.

The potential for considerable disruption of this trial was clear. The sentence imposed (in Regina v D – 12 months) , although severe, could not be interfered with.

For less serious offences a shorter prison sentence may be appropriate.  In some cases the clang of the prison gates would be enough.

In others, for instance, where a tourist had inadvertently taken a photograph perhaps in ignorance of the law, then it might be that imprisonment was not appropriate and that a fine would be the correct sentence.”

You may read the full Times Law Report for Regina v D  here

We seem to be struggling in England & Wales with the ‘Rule of Law’ on several levels.  It is bad enough when Government seeks to roll back human rights, restrict legal aid and misquotes law to achieve a political end ( Infra) – but it really is not good enough when the judges over do it – if, as appears to be arguable – in the case here?

We do, of course, look forward to reading the many appeals likely from the sentencing orgy in the wake of the riots to see if our judges got it right or not.  The perspective of experienced appeal judges reviewing cases will provide resolution to the lack of detail in the press in recent weeks.  We shall see soon enough.

You may find this article from 2007 by Professor Gary Slapper well worth reading: The Law Explored: misbehaviour in court

I turn now to the extraordinary letter which appeared in The Guardian today critical of Mr Grant Shapps MP, the Housing minister.

Media and politicians are misleading about law on squatters

“We are legal academics, solicitors and barristers who practise in housing law acting for landlords, tenants, owners and occupiers. We are concerned that a significant number of recent media reports have stated that squatters who refuse to leave someone’s home are not committing a criminal offence and that a change in the law – such as that proposed by the government – is needed to rectify this situation. This is legally incorrect, as the guidance published by the Department for Communities and Local Government in March this year makes clear. We are concerned that such repeated inaccurate reporting of this issue has created fear for homeowners, confusion for the police and ill informed debate among both the public and politicians on reforming the law….”

The full letter is worth reading.

If a government minister is proved to have (a) poor knowledge of the law in his own portfolio field or (b) worse – has misrepresented the law to suit a political agenda – we do have a bit of a problem.

And this analysis of the issue by some experts on Housing Law is a must read: Well he would, wouldn’t he?

***

UPDATE

Photography and Contempt of Court

David Allen Green reveals that it may not be a bad law story - although he does suggest that two months may be excessive.  If it is not a bad judging story – then it was certainly a bad initial journalist reporting story.  They didn’t get all the facts right if David Allen Green’s source is correct.

5 thoughts on “Law Review: Bad law, bad judging and bad misrepresentation of law by a government minister..?.

  1. I really do not see why some judges always feel that they have to take a sledgehammer to crack a nut. This young person could have been dealt with by a conditional discharge – a good talking to. The phone will have been confiscated as well. As you say, on the basis of what we know, a poor way of dealing with this.

  2. This makes me shiver because, for a time, I was deciding between going to art school and law school. As a teenager, I sat in at a hearing up in the public gallery of an old court. As I sat there I doodled. I drew the judge. The judge spotted me and I suddenly realised I was the centre of attention. The judge asked to see the drawings and an usher came up to get them. The judge mused and then said “these are rather good, but I’m afraid you really should not be doing that”. I was red-faced and apologised and the trial moved on.

    So, apparently, I was lucky to escape a conviction. I relaise I must be reaching a certain age when I find myself wondering what has happened to common sense.

  3. Pingback: Photography and Contempt of Court | BadgesPatches Photography Blog

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