Nobody is above the law: Contempt of Court & Tommy Robinson

“Nobody is above the law. Nobody can pick and choose which laws, or injunctions they obey, and which they do not.”

So said Mr Justice Johnson when imprisoning Tommy Robinson earlier this week. Robinson’s imprisonment on 28 October 2024, marked the culmination of events that began six years ago with a playground fight between two students at Almondbury Community School, Huddersfield.

Oscar Robins considers the the libel action and High Court order that led to Robinson’s imprisonment, the contempt of court that followed, and the aims of the sanction in proceedings of this kind as articulated by Mr Justice Johnson.

Background to High Court Order

This week, Stephen Yaxley-Lennon, widely known as Tommy Robinson, was committed to prison for 18 months for repeated breaches of a High Court order imposed after a libel action brought by then schoolboy, Jamal Hijazi.

This sequence of events began in October 2018 when a video emerged on social media of 15-year-old Hijazi being attacked in a school playground by another student. The video went viral and Robinson responded by posting a response on Facebook (viewed almost one million times), claiming that Hijazi was “not innocent and … violently attacks young English girls in his school”.

Robinson claimed in the libel case subsequently brought by Hijazi that his comments on social media were substantially true and he had “uncovered dozens of accounts of aggressive, abusive and deceitful behaviour” by Hijazi.

On 22 July 2021, Mr Justice Nicklin, in the judgment of the High Court, rejected the defence of truth and ordered Robinson to pay £100,000 in damages, and made an injunction banning him from repeating the defamatory allegations made in his widely shared Facebook videos.

Contempt of Court

On 28 October 2024, Robinson appeared in court facing contempt proceedings, for breaching the terms of the 2021 injunction on ten separate occasions.

The breaches were that:

Robinson gave six online interviews broadcast across different online platforms repeating the false allegations (including one alongside prominent commentator Jordan Petersen where Robinson stated “all I [did] was report the truth”, which has been viewed over 1.9 million times).

Robinson caused a film called ‘Silenced’ to be published which fully ventilates his defamatory allegations on four occasions including ‘pinning’ it to his X account (which remains there and has been viewed over 58 million times) and screening the film in its entirety (albeit with a revamped introduction) to a crowd at Trafalgar Square on 27 July 2024.

As Robinson admitted all ten of the instances of breach, Mr Justice Johnson moved to determine the appropriate sanction for the contempt of court.

What is contempt?

‘Contempts of court’ include an infamously broad range of conduct that have traditionally been split into ‘criminal’ and ‘civil’ (though the utility of such a classification has long been doubted and the Law Commission propose abandoning the distinction altogether).

Lord Toulson explained that the labelling of the branches of contempt may be misleading in R v O’Brien [2014] UKSC 23 at [42]:

“[W]hether a contempt is a criminal contempt does not depend on the nature of the court to which the contempt was displayed; it depends on nature of the conduct. To burst into a court room and disrupt a civil trial would be a criminal contempt just as much as if the court had been conducting a criminal trial…. [whereas] “Civil contempt” is not confined to contempt of a civil court.  It simply denotes a contempt which is not itself a crime.”

Arlidge, Eady & Smith on Contempt (5^th Ed.) suggests that “for largely historical reasons, different forms of contempt have been allocated to one or other of the two traditional broad categories”. Unwittingly, Robinson has assisted in illustrating the allocation between these two categories of contempt by having committed both in the past few years:

‘Criminal contempt’ arises in circumstances where a threat to the administration of justice so demands punishment from the public point of view. This includes:

Disregarding reporting restrictions,

Disruption of court proceedings,

A member of a jury conducting internet research, and

Recording and photography inside of a court.

‘Civil contempt’, as in the present case, relates to disobedience of a court order or undertaking by a person involved in litigation.

Sanction

As a consequence of s.14(1) of the Contempt of Court Act 1981 (which applies to both civil and criminal contempts) the maximum term for which a contemnor, on one occasion, may be committed to prison is two years. The Supreme Court adopted a circumscribed approach to ‘sentence’ for contempt in HM Attorney General v Crosland [2021] UKSC 15 which closely reflects the Sentencing Council guidelines in criminal cases, looking to culpability, harm, mitigation, and ‘credit’ for early admission.

Culpability

Mr Justice Johnson determined that the breaches reflected the highest level of culpability as they were ‘considered, planned, deliberate, direct and flagrant’ in breach of the court’s order and disregarding Hijazi’s rights. It was also material to the judge that Robinson had planned the release of material in a ‘manner that was designed to seek to achieve maximum coverage’. 

Harm

The Judge’s assessment of harm emphasises contempt as having a “corrosive effect […] on the administration of justice” and as an affront to the rule of law, as well as causing further harmful defamation to Hijazi. This split assessment of harm was the approach taken in Phonographic Performance v Amusement Caterers [1964] Ch. 195 at [198-9]:

“Where there has been wilful disobedience to an order of the court and a measure of contumacy on the part of the defendants, then civil contempt, what is called contempt in procedure, “bears a two-fold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the state, a penal or disciplinary jurisdiction to be exercised by the court in the public interest.” (Emphasis added).

It can be inferred from this that the primary harm the Court is concerned with is that to the rule of law and the public interest. In fact, in the present case, counsel for the applicant accepted that ‘further injurious impact’ on Hijazi’s reputation is ‘not a significant factor’.

Mitigation & Admissions

In mitigation, the Judge appears to have been persuaded by Robinson’s submissions that due to Robinson’s infamy his incarceration may impact upon the ‘conditions in which the defendant is kept’, that is to say, solitary confinement. The ‘plea in mitigation’ by counsel for the respondent is somewhat hampered by the fact that the judge committing the contemnor has no power to order a pre-sentence report. The judge, instead, had to look back to at mitigation advanced in Robinson’s previous cases.

As concerns ‘credit’, it appears that if a contemnor admits breach at the hearing of the contempt proceedings they are only entitled to one tenth reduction. While there is no formal venue to enter a ‘plea’, the Judge pointed out that formal admissions could have been made ‘in pre-action correspondence’ (presumably to benefit from a full third), and ‘at every stage of the proceedings’ (where the sliding scale familiar to criminal law practitioners would apply).

The Aim of the ‘Sanction’

In Care Surgical Ltd v Bennetts [2022] EWHC 563 (Ch), the court held that in cases of civil contempt, the object of the sanction is two-fold, that is:

“To punish the historic breach and secure future compliance.”

Those two aspects were referred to by Mr Justice Johnson as the punitive and coercive elements of the sanction. The punitive element in this case was 14 months (less three days spent in custody), and the coercive element four months. The division of the sanction into those two elements is significant as the coercive element can be ‘purged’.

The contemnor has a right to apply to the court to purge (or discharge) their contempt and seek an order for immediate release under CPR 81.10. In order to do so, the contemnor may, among other factors, ‘demonstrate a resolve and an ability not to commit a further breach if he is discharged early’ (CJ v Flintshire Borough Council [2010] 2 FLR 1224 at [21]).

It was for this reason that prior to the Contempt of Court Act 1981 (when contempt ‘sentences’ were not capped at two years), it was often said that contemnors “carried the keys of their prison in their own pockets”. Once the contemnor had purged their contempt, they would have a right to be released (ex debito justitiae).

Robinson will serve up to half of his 18-month sentence in custody, with the prospect of the four-month coercive element being purged present throughout. Demonstrating a commitment to comply with the injunction, the Judge said, would at the very least require Robinson removing ‘Silenced’ from his social media accounts. It was reported that when Mr Justice Johnson posed this, Robinson shook his head and appeared to say “Nah” from inside the dock.

Conclusion

Though the divide between ‘civil’ and ‘criminal’ contempt may soon be washed away by the tide of codification undertaken by the Law Commission (the consultation is open until 29 November 2024,) those committing breaches of High Court injunctions continue to risk imprisonment.

As Mr Justice Johnson warned:

‘Nobody is above the law. Nobody can pick and choose which laws, or injunctions they obey, and which they do not… Otherwise, the administration of justice and the rule of law would inevitably break down. It is in the interests of the whole community that court injunctions are obeyed, so that the rights and freedoms that are enjoyed by individuals can be protected and enforced.’