Lord Justice Thomas :
- This is the judgment of the court.
The jurisdictional issue to be determined
- On 29 March 2007 the appellants, Mr Brian Haw and Ms Barbara Tucker, were convicted of contempt of court contrary to s. 12 of the Contempt of Court Act 1981 at the City of Westminster Magistrates' Court by District Judge Daphne Wickham. Mr Haw was fined £250 and Mrs Tucker £50. Both were ordered to pay costs of £50. The case against them was that on 26 March 2007 they had wilfully interrupted proceedings in the face of the court.
- On 12 April 2007 the appellants appealed to the Southwark Crown Court on the grounds that their actions on 26 March did not amount to contempt of court, either in fact or in law.
- The question was immediately raised at Southwark Crown Court as to whether an appeal lay to that court on the issue of conviction. As we shall endeavour to explain, in the light of some observations in a previous decision of this court and the lack of any authoritative decision, there is a debated issue as to the correct route of appeal for a person convicted and sentenced in a Magistrates' Court under s.12 of the Contempt of Court Act 1981. The appellants also filed a notice of appeal to this court on 18 June 2007; directions were subsequently given for the issue of jurisdiction to be determined by this court; if it was determined that this court had jurisdiction, then this court should determine whether the appeal was by way of rehearing or review. It is accepted, on all sides, that the appellants acted in time for whichever route of appeal is appropriate.
- There are, in essence, three possibilities, which we will consider in turn:
i) an appeal to the Crown Court under s.12(5) of the Contempt of Court Act 1981;
ii) an appeal to the Administrative Court under s.13 of the Administration of Justice Act 1960;
iii) an appeal by way of case stated or an application for judicial review to the Administrative Court.
(i) What appeal lies to the Crown Court?
(a) The statutory provisions: s. 12 of the Contempt of Court Act 1981
- Prior to the Contempt of Court Act 1981, the Magistrates' Courts had no power to punish for contempt in the face of the court. They only had power to order a person to leave the court, to punish disobedience to their orders and to punish recalcitrant witnesses. The power to punish for contempt in the face of the court was given by s.12 of the Contempt of Court Act 1981 which provides (as amended):
"(1) A magistrates' court has jurisdiction under this section to deal with any person who –
(a) wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or
(b) wilfully interrupts the proceedings of the court or otherwise misbehaves in court.
(2) In any such case the court may order any officer of the court, or any constable, to take the offender into custody and detain him until the rising of the court; and the court may, if it thinks fit, commit the offender to custody for a specified period not exceeding one month or impose on him a fine not exceeding £2,500, or both."
- The right of appeal was provided by sub-section 5 of s.12 in the following terms (as amended):
"(5) Section 135 of the Powers of Criminal Courts (Sentencing) Act 2000 (limit on fines in respect of young persons) and the following provisions of the Magistrates' Courts Act 1980 apply in relation to an order under this section as they apply in relation to a sentence on conviction or finding of guilty of an offence; and those provisions of the Magistrates' Courts Act 1980 are sections 75 to 91 (enforcement); section 108 (appeal to Crown Court); section 136 (overnight detention in default of payment); and section 142(1) (power to rectify mistakes)."
Section 108 of the Magistrates' Courts Act 1980 provides by subsection (1) as follows:
"A person convicted by a magistrates' court may appeal to the Crown Court –
(a) if he pleaded guilty, against his sentence;
(b) if he did not, against the conviction or sentence."
- An appeal at the Crown Court takes place by way of a complete re-hearing of the matter in accordance with long standing customary practice: s.79 of the Supreme Court Act 1981. The prosecutor calls his witnesses, the defendant calls his witnesses and the judge of the Crown Court, sitting with magistrates (usually two), makes a determination completely afresh on the evidence they hear.
- It might have been thought that there was nothing exceptional in providing a simple route of appeal of this kind to the Crown Court as that is the ordinary route of appeal for convictions in the Magistrates' Courts and the only route where factual issues relating to the conviction are in issue. At first blush that would appear to be the natural meaning of s. 12(5), not least given the cross reference to s.108 of the Magistrates' Courts Act and the scope of that section. Indeed it is clear that this view is a view commonly held: in Lane v Gloucester Magistrates' Court [2006] EWHC 3198 (Admin) this court stated at paragraph 5:
"The Administrative Court office wrote to Mr Lane on 22nd November, almost a week ago, pointing out that the right of appeal against orders made under section 12 of the 1981 Act consists of a right of appeal to the Crown Court under section 108 of the Magistrates' Courts Act 1980, not to this court. That is indeed the position. Section 12(5) of the 1981 Act states that section 108 applies to an order under section 12 and in its turn section 108 creates a right of appeal to the Crown Court. No right of appeal to this court, whether by case stated or in any other form, is created. However, what is possible in these circumstances is to seek permission to begin judicial review proceedings. They are not excluded by any statutory provision. Judicial review may lie if something has gone wrong with the decision-making process, but, as we have explained to Mr Lane this afternoon, it does not provide a means of challenging a decision on its merits which appears to form at least part of what Mr Lane seeks."
- Unfortunately, however, the position is not so simple, largely because of some observations made in this court in R v Havant Justices ex parte Palmer (1985) 149 JP 609. The observations (which were expressed by the judge who made them as unnecessary to the decision in that case) pointed to a different interpretation of s.12(5); it was said that s.12(5) was confined to appeals against sentence only and not to appeals against conviction.
- The correctness of those observations is challenged by counsel for Mr Haw, Mr Guy Vassall-Adams. Miss Catrin Evans who has appeared on behalf of the respondent, instructed by the Treasury Solicitor, has put forward before the court the arguments to the contrary; she has done so in effect as an amicus, as the respondent has taken the position that it is neutral on this issue. We must record our immense indebtedness to them both for the very diligent research they have carried out and for the excellence and clarity of the arguments they have advanced.
(b) The legislative history of s.12
- Before dealing with the correctness of the observations made in ex parte Palmer, it is, we think, necessary to set out the background to the legislation.
- In December 1974 a committee under the chairmanship of Phillimore LJ reported on Contempt of Court (Cmnd.5794). At paragraph 25 of that report it was pointed out that Magistrates' Courts in England and Wales had no power to punish disruptive conduct in court, and that there had been recent instances of such conduct. At paragraph 36 they recommended that as Magistrates' Courts dealt with about 98% of all criminal cases in England and Wales, those courts should be given powers to deal with contempt in the face of the court similar to those enjoyed by the County Court. At paragraph 37 they concluded:
"As in the case of superior courts, there should be the safeguard of an appeal which would need to be swift in the case of a custodial sentence. We recommend that appeals should lie to the nearest Crown Court, and that arrangements should be made for dealing with them expeditiously."
- It was not until 1980 that a Bill was brought forward to implement those proposals. The provisions with regard to Magistrates' Courts were modelled on powers that had been given to the County Courts on their creation in 1846 and were then contained in Clause 11 of the Bill. On the second reading of the Bill on 19 December 1980 the then Lord Chancellor (Lord Hailsham of Saint Marylebone) outlined the purpose of that clause:
"Clause 11 confers powers on magistrates to punish disruption or contempt in the face of the court and allows appeal up to the Crown Court, as indeed appeals to the Crown Court are universally allowed from magistrates. This follows paragraph 36 of the Phillimore Report but with rather heavier sanctions after six years than Phillimore then recommended."
- Clause 11 was considered at the Committee stage on 20 January 1981. At that stage the paragraph in the Bill relating to appeals from the Magistrates' Court read in the following terms:
"The foregoing provision of this section shall have effect as if enacted in the Magistrates' Courts Act 1980; and for the purposes of section 108 of that Act (appeal to Crown Court) an order under this section shall be treated as an order made on conviction."
- Lord Renton pointed out that the draftsmanship did not comply with the Report of the Committee on the Preparation of Legislation, as it was, in his view, a flagrant example of a non-textual amendment to the Magistrates' Court Act when there should have been a textual amendment to that consolidating Act. The Lord Chancellor, in response, accepted the point. He, however, made clear, as concern had been expressed that magistrates might too hastily use the powers under the provision, that there should be:
"an appeal by way of re-hearing to the Crown Court if someone suffered any penalties under the preceding provisions [of the clause]. However, I shall of course refer what my noble friend said to the draftsman. He is one of the most experienced draftsmen in the business, so my noble friend can be sure that the point will be taken and examined in very safe hands, better than mine."
- It appears from the researches of counsel that it was as a result of this amendment that the clause emerged in its present form. We have set the history out, because we are of the view that, if the provision has an ambiguity, there can be no doubt that the clear legislative intent was to provide a right of appeal to the Crown Court against conviction and sentence as applied generally in the case of conviction at a Magistrates' Court.
(c) The decision in ex parte Palmer
- It is against that background that we turn to consider the observations on s.12(5) in ex parte Palmer. Palmer was a witness to proceedings before a Magistrates' Court. Whilst he and the defendant were waiting in the foyer outside the court for the magistrates to consider their decision Palmer threatened the defendant. The magistrates assumed jurisdiction, decided that by threatening the defendant Palmer was in contempt of court under s.12 of the 1981 Act and fined him £100. Palmer appealed against the finding of contempt and the fine to the Crown Court. The Crown Court judge decided he had no jurisdiction to hear the appeal. Palmer then sought a judicial review of the decision of the magistrates and of the judge. The applicant was represented by counsel and an amicus was instructed to put the contrary argument. The substantial judgment was given by the then May LJ, Nolan J merely adding a short judgment agreeing.
- The then May LJ found that the conduct of Palmer was not on the facts a contempt within s.12(1)(a) as his conduct was not an "insult". That was, as the judge recognised, sufficient to dispose of the case. The judge nonetheless continued to express, first of all, a view on s.12(5) of the Act:
"In those circumstances, as again will be readily apparent, it becomes unnecessary for this court to express any final opinion on the decision of the learned circuit Judge at Portsmouth that he had no jurisdiction to hear the appeal by the applicant against the magistrates' decision. However, well appreciating that any views which I now express may well hereafter be said to be obiter, having had the benefit of extensive argument on the point and also because it is perhaps a more important one than the one with which I have already dealt, I do propose to express a view upon it.
Mr Foskett [counsel for Palmer] drew our attention to what at first sight appears to be the somewhat unhappy wording of s. 12(5) of the 1981 Act, particularly the phrase "in relation to a sentence on conviction or finding of guilty of an offence". At first reading, one might be forgiven for expecting either the word "to" or "a" before the words "finding of guilty of an offence", but neither is there and for my part I think that it is not for the reason put forward in his submissions by Mr Foskett. By s. 59 of the Children and Young Persons Act 1933 it was provided that the words "conviction" and "sentence" were to cease to be used in relation to children and young persons dealt with summarily and any reference in any enactment passed before or after the commencement of that Act should in the case of a child or a young person be construed as including a reference to that person being found guilty of an offence, a finding of guilty, or an order made upon such a finding. A child or young person, therefore, is not to be convicted; he or she is to be found guilty of an offence. It is for this reason, Mr Foskett submits, that one finds the word "conviction" and the phrase "finding of guilty of an offence" side by side in subs. (5). For my part, I accept that submission and that then leads one to the proper construction of that subsection.
The relevant section of the Magistrates' Courts Act 1980 in the instant case of those referred to in s. 12(5) of the 1981 Act is s. 108, which provides for a right of appeal to the Crown Court for a person convicted by magistrates – if he pleaded guilty, against sentence; if he did not, against the conviction or sentence. But s. 12(5) of the 1981 Act merely refers to an "order" under s. 12 and applies s. 108 of the Act of the previous year to that order only as it applies "in relation to a sentence on conviction or finding of guilty of an offence." Thus, in my opinion, the jurisdiction of a Crown court in this context is limited to hearing an appeal against the penalty imposed by magistrates for the contempt which they have found to have been committed: there is no jurisdiction in a Crown Court to hear an appeal by a person against the actual finding of contempt by justices under s. 12(1) of the Contempt of Court Act 1981.
Thus, in my judgment, in the instant case the learned circuit Judge was wholly right to decline jurisdiction in so far as the appeal against the finding of contempt was concerned, although had he been minded to and had the applicant been prepared to proceed on that limited basis, he did, in my judgment, have jurisdiction in respect of penalty."
The judge went on to deal with s.13 of the Administration of Justice Act 1960, but it is convenient to deal with that part of his judgment when we turn to consider the jurisdiction of the High Court under s.13 of that Act at paragraphs 31 and following below.
- The observations which we have set out have been criticised as unduly narrow: see The Law of Contempt by Professors Lowe and Sufrin at page 516; as questionable: see: Contempt of Court by Professor C. J. Miller at paragraph 3-105; and as somewhat restrictive in Arlidge, Eady and Smith on Contempt, 3rd Edition 2005 at paragraph 13-129. As can be seen from the passage we have cited, the approach of the court was not to adopt a purposive construction to s. 12(5) but rather to look at it syntactically by reference to s.59 of the Children and Young Persons Act 1933. S.59 of that Act, as it stood in 1985, read:
"59. (1) The words "conviction" and "sentence" shall cease to be used in relation to children and young persons dealt with summarily and any reference in any enactment whether passed before or after the commencement of this Act to a person convicted, a conviction or a sentence shall, in the case of a child or young person, be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order made upon such a finding, as the case may be:"
First it can be noted that s.59 of the Children and Young Persons Act uses the term "found guilty of an offence, a finding of guilt or an order made upon such a finding" and not the term in s.12(5) "finding of guilty of an offence". The wording of s.12(5) therefore does not track the wording of s.59 of the Children and Young Persons Act. The summary of the provisions of s.59 by the then May LJ is therefore mistaken insofar as he summarises the section as referring to "a finding of guilty". Those are the words used in s. 12(5) but not in s. 59.
- Furthermore, as the late Professor Sir John Smith pointed out in his commentary on the report of this decision in [1985] Crim.L.R. at 658, the draftsman did not, if the intention was to deal with the position of children and young persons, need to use words such as "or finding of guilty of an offence" to deal with the position of children and young persons because s.59 makes it clear that the word "conviction" is to be read in any Act, whether passed before or after the commencement of the 1933 Act, as including a reference to a child or young person found guilty of an offence, finding of guilt or an order made upon such a finding.
- Thus, we think that it is highly unlikely, for both of these reasons that the draftsman of s.12(5) intended to refer to s.59 of the Children and Young Persons Act 1933. Thus the first premise of the then May LJ's approach to construction on a syntactical basis cannot be sustained.
- The judge also based his view on the use of the term "order" as only referring to s. 12(2), both because of the use of the terms "order" (which is used in s. 12(2) and not in s.12(1)) and the words which then qualify the term "order". However the term "order" is used in s. 12(2) as a reference to only one of the sentences that can be passed; the term "order" is not used in relation to the other sentences that can be passed. Moreover an "order" of the court would ordinarily specify both the conviction and the sentence and would not ordinarily be read as restricted to sentence; this is the case, for example, in the form specified for use in contempt in the High Court (Civil Procedure Form R8). Furthermore we do not consider that the qualifying words after order need be read in the very narrow and restrictive sense set out by the then May LJ.
(d) Our conclusion
- In his commentary, the late Professor Sir John Smith concluded:
"All this suggests that some mishap has occurred in the drafting but exactly what it was is difficult to say. The result is unfortunate. There seems to be no good reason why the person convicted (or found guilty) under the section should have no right of appeal against the conviction (or finding) as well as against sentence (or any order made on conviction)."
We agree that there can be no good reason why a person convicted under s.12 should not have a right of appeal against conviction as well as against sentence.
- Leaving aside for a moment the legislative history we have set out, it is clear that Parliament must have known that the only other possible right of appeal on conviction was to the High Court under s.13 of the 1960 Act. Parliament would have known that such a right of appeal would present difficulties; there are no transcripts of the proceedings in the Magistrates' Courts as neither the reasons for the judgment of the court nor the evidence is recorded or transcribed. Thus if the High Court was to hear an appeal on conviction, there would be no transcript of the judgment and no complete record of the evidence; the court would have to rely on the notes of the clerk. Furthermore, Parliament would have known that the ordinary route of appeal on a conviction by a Magistrates' Court was to the Crown Court; it appears from the researches of counsel that there are no summary offences from which there is no right of appeal to the Crown Court. Although it may be debateable whether a conviction for contempt under s.12 is a conviction for a criminal offence (see for example the discussion in Arlidge, Eady and Smith on Contempt, 3rd Edition 2005 at paragraph 13-129), a conviction under s.12 carries some of the indicia of a criminal offence (as it is recorded on the Police National Computer). Parliament would have known that an appeal at the Crown Court was conducted by the form of complete re-hearing to which we have referred at paragraph 8 and not the form of re-hearing usual in the higher courts; it was therefore a far more suitable form of appeal than an appeal to the High Court. Moreover, Parliament would no doubt have had regard to the efficient use of resources; where an offence carried a maximum term of imprisonment of one month, there would be no good reason why the time of a judge of the High Court would be taken up in an appeal from such a decision when appeals on decisions where penalties could be up to six months were heard by judges and magistrates at the Crown Court. It is difficult therefore to think of any reason why Parliament may have considered a right of appeal to the Crown Court would have been appropriate in the case of sentence and inappropriate in the case of conviction. Indeed, even without consideration of the legislative history of s.12 of the 1981 Act, everything points to the fact that Parliament must have intended there be a right of appeal on conviction as well as sentence.
- We are, however, also entitled to take into account the legislative background in accordance with the decision in Pepper v Hart [1993] AC 593. The provision is ambiguous; there are Ministerial statements as to the intention; those statements are clear, as we have set out.
- It seems to us, therefore, that taking into account the materials we have set out, and attempting to give the section a purposive construction, s.108 applies not only to a sentence on conviction but also to the conviction; we think the words can be so read.
- However, as the then May LJ pointed out, if that had been the intention of Parliament, would one not have expected an indefinite article before the words "finding of guilty of an offence"? In the absence of such an indefinite article, it was not, in his view, permissible to construe s.12(5) in the way we think is correct. We do not agree for the reasons we have given. But even if he was right, we consider that this is one of those cases where there has been a drafting error which we are entitled to correct in accordance with the principles set out in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586. In a speech with which all of the other members of the House agreed, Lord Nicholls of Birkenhead set out at page 592 the circumstances in which a court could correct a drafting error:
"I freely acknowledge that this interpretation of section 18(1)(g) involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross's admirable opuscule, Statutory Interpretation, 3rd ed. (1995), pp. 93-105. He comments, at p. 103:
"In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role."
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v. Wrotham Park Settled Estates [1980] A.C. 74, 105-106. In the present case these three conditions are fulfilled."
- It is clear from what we have set out what the intended purpose of section 12(5) was; it is probable that, by inadvertence, the draftsman may have omitted to give effect to that purpose; if Parliament had noticed the error, the indefinite article would have been inserted. We do not believe that in correcting an error in this way we are in any sense crossing the boundary between construction and legislation.
- For those reasons, therefore, we consider that there is a route of appeal to the Crown Court whether it be against conviction or sentence. As that was the route of appeal that the appellants originally intended to take, their appeal should be listed as soon as practicable at Southwark Crown Court in accordance with directions to be given by that court.
(2) Does an appeal lie to the High Court under s.13(1)?
- As we have indicated, there is the view that a right of appeal in cases such as this lies to this court under s.13 of the Administration of Justice Act 1960. In Re Hooker [1993] COD 190, this court considered an appeal under this section without the issue of jurisdiction being argued.
- The material provisions of s.13 are the following:
"(1) Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings.
(2) An appeal under this section shall lie in any case at the instance of the defendant and, in the case of an application for committal or attachment, at the instance of the applicant; and the appeal shall lie –
(a) from an order or decision of any inferior court not referred to in the next following paragraphs, to … the High Court;
(b)…..
(5) In this section "court" includes any tribunal or person having power to punish for contempt; and references in this section to an order or decision of a court in the exercise of jurisdiction to punish for contempt of court include references –
(a) to an order or decision of the High Court, the Crown Court or a county court under any enactment enabling that court to deal with an offence as if it were contempt of court;
(b) to an order or decision of a county court, or of any court having the powers of a county court, under section 14, 92 or 118 of the County Courts Act 1984;
(c) to an order or decision of a magistrates' court under subsection (3) of section 63 of the Magistrates' Courts Act 1980,
but do not include references to orders under section five of the Debtors Act 1869, or under any provision of the Magistrates' Courts Act 1980] or the County Courts Act 1984, except those referred to in paragraphs (b) and (c) of this subsection and except sections 38 and 142 of the last mentioned Act so far as those sections confer jurisdiction in respect of contempt of court."
- The other paragraphs of sub-section (2) do not refer to the Magistrates' Courts and the sub-section therefore provides, on its face a right of appeal to the High Court, provided the power of the Magistrates' Courts is a power within sub-section (5). It was suggested before us that the power of the Magistrates' Court under s.12 of the Contempt of Court Act 1981 might not fall within sub-section (5) as it was not expressly referred to therein. However, it seems to us clear that the words "in the exercise of jurisdiction to punish for contempt of court include references" are merely words that illustrate and are not exhaustive. Thus, on the face of s.13, there is a right of appeal to the High Court which by reason of the provisions of s.64 of the Access to Justice Act 1999 would be heard by a single judge.
- However, it would appear strange if Parliament had intended a concurrent right of appeal under this section. In Arlidge, Eady and Smith on Contempt, 3rd Edition 2005, the editors state at paragraph 13-130 the following:
"There remains some doubt, therefore, as to the circumstances in which it is appropriate to go to the Crown Court, or to the High Court for judicial review or to the High Court by way of appeal under s.13 of the 1960 Act. The answer may be that s.13 does not apply to the exercise of the jurisdiction under s.12 of the Contempt of Court Act 1981 at all, for the reason that it is a specific statutory jurisdiction which is, although analogous to the contempt jurisdiction, not in fact to be so classified."
- In ex parte Palmer the then May LJ made the following further observation in relation to the relationship between s.12 and s.13.
"If that provision [s.13 of the 1960 Act] operated or was held to operate in relation to situations covered by s.12 of the 1981 Act, the position would be this. Parliament with one hand would have given by subs. (5) of s.12 of the 1981 Act a right of appeal, albeit limited to the extent that I have indicated, but then would have taken it away again with its other hand by virtue of the second half of subs. (1) of s.13 of the 1960 Act. In my judgement, that cannot have been the intention of parliament and cannot be a proper construction to put on s.13(1) of the Administration of Justice Act 1960, in the circumstances which obtained in the instant case."
- It seems to us, therefore, on ordinary principles of statutory construction that the provisions of s.12(5) of the 1981 Act, being specific provisions with regard to the right to punish created under s.12(1) of that Act, were intended by Parliament to apply in place of the very general provisions of s.13 of the 1960 Act. Although this section of the 1960 Act was intended to provide a general right of appeal, at the time it was enacted the Magistrates' Courts had no power to deal with contempt in the face of the court and Parliament therefore could not have contemplated providing a route of appeal by s.13. It is clear from the ministerial statement by the then Lord Chancellor (Viscount Kilmuir) introducing the bill on the second reading on 24 March 1960 that clause 13 of the bill was intended to deal with general rights of appeal for contempt as it then existed. The editors of Arlidge, Eady and Smith on Contempt, 3rd edition 2005 at paragraph 10-119 have taken a similar view:
"Another way of putting the point would be on the basis of generalia non specialibus derogant; that is to say that the specific provisions of s.12(5), however poorly drafted they may be, must be taken to have priority over those of the earlier, more general provisions."
This is also the view of Professor C.J. Miller in Contempt of Court at paragraph 3.105 footnote 473.
- We consider for the reasons we have set out above that Parliament cannot have intended to create a right of appeal to the High Court by way of re-hearing; nor can Parliament have intended two concurrent rights of appeal, as that would only lead to confusion. In our view therefore the provisions of s.12(5) of the Contempt of Court Act 1981 apply to appeals under s.12 of that Act and there is no right of appeal under s.13 of the Administration of Justice Act 1960.
- As we have reached the view that there is no right of appeal under s. 13 of the Administration of Justice Act 1960, it is not necessary for us to consider how a court would control the scope and manner of the appeal. We have not therefore considered the scope of the powers under CPR Part 52 nor the powers under s.13(3) of the Act (see Linnett v Coles [1987] QB 555; R v Serumaga [2005] EWCA Crim 370, [2005] 2 Cr App R 12 ) nor the nature of any such appeal and whether it would have been by way of review or re-hearing (see for example E.I.du Pont Nemours v ST Dupont [2003] EWCA Civ 1368; Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 WLR 1311; Assicurazzoni Generali v Arab Insurance Group [2002] EWCA Civ 1642) [2003]1 WLR 577). We would merely observe that the draftsmen of CPR Part 52 probably (and rightly) did not have in the forefront of their considerations appeals from the Magistrates' Courts on contempt.
(3) Appeals by way of case stated and applications for judicial review
- The conclusions which we have set out in the preceding paragraphs do not, in our view, in any way affect the two other ways in which a decision of a Magistrates' Court on a contempt issue can be brought before this court.
- Section 111 of the Magistrates' Courts Act 1980 provides for a case to be stated by the Magistrates' Court; its terms are wide enough to encompass an appeal by way of case stated under s.12 of the Contempt of Court and there is no reason why this route of appeal cannot lie in a case where it is appropriate. Plainly there can be cases where the issue that arises is a question of whether on the facts found the Magistrates' Court was entitled to make a finding of contempt. The route of using a case stated appeal to this court lies happily with the route of appeal to the Crown Court in ordinary criminal cases, as s.111(4) makes express provision that on the making of an application for a case stated, any right of appeal to the Crown Court ceases.
- Nor do we see any difficulties with an application for judicial review of a conviction for contempt: this court has considered such application as for example in R v Tamworth Magistrates Court ex parte Walsh [1994] COD 277; R v Patley Bridge Justices ex parte Percy [1994] COD 453. The grounds upon which judicial review of the decision of the Magistrates' Court may be advanced are limited and controlled by the well known limitations on this form of review.
Conclusion
- Our conclusion therefore on the points can be summarised as follows:
i) An appeal lies to the Crown Court from a conviction or a sentence under s. 12 of the Contempt of Court Act 1981 at the Magistrates' Court.
ii) There is no right of appeal against a conviction or sentence under s.12 of the Contempt of Court Act 1981 to the High Court under s.13 of the Administration of Justice Act 1960.
iii) An appeal to the High Court lies by way of case stated and proceedings for judicial review can be brought where appropriate.
