[2009] 1179

1 WLR

Court of Appeal

Regina v. M

[2008] EWCA Crim 1901

2008 Aug 14 Toulson LJ, Andrew Smith, Bean JJ

Contempt of court - Crown Court - Breach of restraint order - Crown Court making restraint order against defendant
prohibiting him from dealing with realisable property pending his criminal trial - Defendant allegedly breaching restraint
order - Prosecution applying to Crown Court for defendant to be committed for contempt of court - Whether Crown Court
having jurisdiction to hear and determine allegation of civil contempt - Supreme Court Act 1981 (c 54), s. 45(4) -
Proceeds of Crime Act 2002 (c 29), s. 41

A judge in the Crown Court made a restraint order pursuant to section 41 of the Proceeds of Crime Act 2002 1, prohibiting
the defendant, who was due to be tried on indictment, from dealing in certain realisable property. The prosecution
subsequently alleged a breach of the order and applied to the Crown Court for an order for committal of the defendant for
contempt of court, relying, inter alia, on section 45(4) of the Supreme Court Act 19812, which provided that the Crown Court
had the like powers as the High Court in relation to contempt of court and the enforcement of its orders. The defendant resisted
the application on the ground that the Crown Court had no jurisdiction to try an allegation of civil contempt of court and that
such applications should be made in the Divisional Court of the 1

11Proceeds of Crime Act 2002, s. 41: "(1) If any condition set out in section 40 is satisfied the Crown Court may make an
order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him. (2) A restraint
order may provide that it applies- (a) to all realisable property held by the specified person whether or not the property is
described in the order; (b) to realisable property transferred to the specified person after the order is made … (7) The court
may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective."
2Supreme Court Act 1981, s. 45(4): see post, para4.
[2009] 1180
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Queen's Bench Division. The judge ruled that he had jurisdiction to determine the application.
On the defendant's appeal-

Held, dismissing the appeal, that section 45(4) of the 1981 Act did not cover only such types of contempt as might have
arisen in the Crown Court in 1981 or only such orders as the Crown Court would have been enforcing as the law stood in 1981;
that, since a restraint order was the equivalent in criminal proceedings of a freezing injunction in civil proceedings, and since
allegations of contempt of court consisting of breaches of freezing injunctions were regularly heard and determined by High
Court judges sitting alone, section 45(4) of the 1981 Act gave the Crown Court power to deal with an allegation of contempt of
court consisting of a breach of a restraint order which it had made under section 41 of the 2002 Act; that although contempt
proceedings against the media which raised substantial issues of principle should invariably be heard by a Divisional Court,
which had concurrent jurisdiction, rather than the Crown Court there was no reason why the present proceedings should not be
tried by a single judge in the Crown Court; and that, accordingly, the judge had been right to conclude that he had jurisdiction
(post, paras6, 8, 20,24, 29).

Balogh v St Albans Crown Court [1975] QB 73, CA considered.

Director of Public Prosecutions v Channel Four Television Co Ltd [1993] 2 All ER 517, DC distinguished.

The following cases are referred to in the judgment of the court:

Balogh v St Albans Crown Court [1975] QB 73; [1974] 3 WLR 314; [1974] 3 All ER 283, CA
Director of Public Prosecutions v Channel Four Television Co Ltd [1993] 2 All ER 517, DC
R v Adewunmi [2008] EWCA Crim 71; [2008] 2 Cr App R (S) 326, CA
R v Griffin (1988) 88 Cr App R 63, CA
Rooney v Snaresbrook Crown Court (1978) 68 Cr App R 78, CA
No additional cases were cited in argument or referred to in the skeleton arguments.

APPEAL under section 13 of the Administration of Justice Act 1960

On 19 February 2008 Judge Taylor in the Crown Court at Southwark made restraint order against the
defendant, M, pursuant to section 41 of the Proceeds of Crime Act 2002 whereby he was prohibited from dealing in
certain realisable property. The prosecution, alleging a breach of that order, applied to the Crown Court for an
order of committal for contempt of court founded on the breach. On a directions hearing on 30 June 2008 Judge
Goymer ruled that he had jurisdiction to determine such an application.
The defendant appealed pursuant to section 13 of the Administration of Justice Act 1960 on the grounds, inter
alia, that the Crown Court had no jurisdiction under section 45(4) of the Supreme Court Act 1981 or otherwise to
try such an allegation of contempt which was not contempt in the face of the court but was founded on breach of a
restraint order, and that the appropriate forum was the Divisional Court.
Reporting restrictions applied.
The facts are stated in the judgment of the court.
Ivan Krolick (assigned by the Registrar of Criminal Appeals) for the defendant.
Lisa Wilding (instructed by Crown Prosecution Service, Ludgate Hill ) for the prosecution.
[2009] 1181
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BEAN J delivered the following judgment of the court.

1 This is an appeal pursuant to section 13 of the Administration of Justice Act 1960 against an order made in
contempt proceedings. It raises the question of whether the Crown Court has power to deal with an allegation of
contempt of court consisting of a breach of its own restraint order.
2 The defendant, M, was made the subject of a restraint order under section 41 of the Proceeds of Crime Act
2002 by Judge Taylor in the Crown Court at Southwark on 19 February 2008. The Crown allege that he has made
transactions which breach that order and thus constitute a contempt of court. They applied to the Crown Court for
an order for committal.
3 The application came before Judge Goymer for directions on 30 June. Mr Krolick submitted to the judge, as
he has submitted to us, that the Crown Court has no jurisdiction to try an allegation of civil contempt of court and
that such applications must be made to a Divisional Court. Alternatively, Mr Krolick submitted that, even if the
Crown Court did have jurisdiction, the application was so defective that it should have been struck out anyway.
4 Section 45(4) of the Supreme Court Act 1981 provides:
"the Crown Court shall, in relation to … any contempt of court, the enforcement of its orders and all other
matters incidental to its jurisdiction, have the like powers, rights, privileges and authority as the High Court."

5 As to what the powers of the High Court are, RSC Ord 52, r 1(2), so far as relevant, provides:
"Where contempt of court- (a) is committed in connection with … (ii) criminal proceedings, except where the
contempt is committed in the face of the court or consists of disobedience to an order of the court or a breach of
an undertaking to the court … then … an order of committal may be made only by a Divisional Court of the
Queen's Bench Division."

6 At first sight section 45(4) of the 1981 Act provides a simple answer to Mr Krolick's submission. A restraint
order is the equivalent in criminal proceedings of a freezing injunction, formerly known as a Mareva injunction, in
civil proceedings. High Court judges sitting alone regularly hear and determine allegations of contempt of court
consisting of breaches of freezing injunctions. Since by section 45(4) of the 1981 Act the Crown Court has the like
powers as the High Court in relation to contempt of court and the enforcement of its orders, why should a judge of
the Crown Court not do the same? RSC Ord 52 does not require any different conclusions since breach of a
restraint order "consists of disobedience to an order of the court" and is thus not reserved to the Divisional Court.
Restraint orders made under statute prior to the Proceeds of Crime Act 2002 were made by single judges of the
High Court and single judges dealt with breaches. Under the 2002 Act the jurisdiction to issue restraint orders has
been transferred to single judges of the Crown Court and they can also deal with breaches.
7 Mr Krolick argues, first, that the word "contempt" in section 45(4) can only mean criminal contempt, in so
far as the section is applicable in the Crown Court, because in 1981 there were no restraint orders, nor any other
order which could be made by the Crown Court, disobedience of which carried the contempt sanction.
[2009] 1182
1 WLR RvM

8 We do not accept that the meaning of the statute is that only such types of contempt as might have arisen in
the Crown Court in 1981 are covered, nor that only such orders as the Crown Court would have been enforcing as
the law stood in 1981 are covered.
9 Mr Krolick turned next to the Practice Direction which supplements RSC Ord 52, now scheduled to the Civil
Procedure Rules, and the corresponding CCR Ord 29, likewise scheduled to the Civil Procedure Rules.
10 By paragraph 1.1 it is provided that Part I of the practice direction applies to any application for an order for
committal of a person to prison for contempt of court. Paragraph 1.2 lays out certain contempts based on
disobedience to an order made in a county court, or other types of contempt arising in a county court where the
county court has jurisdiction, and paragraph 1.3, on which he relies, provides that "In every other case, (other than
one within Part II of this practice direction), a committal application must be made in the High Court". (Part II
relates to contempts in the face of the court and is inapplicable here.)
11 We do not consider that paragraph 1.3 of the Practice Direction to RSC Ord 52 has any application to the
Crown Court. The reference is to every other case of committal governed by RSC Ord 52 (or the corresponding
county court provision) itself, and RSC Ord 52, r 1(1) refers to "the power of the High Court or Court of Appeal" to
punish for contempt of court.
12 Mr Krolick next referred to RSC Ord 52, r 5, which provides:
"Nothing in the foregoing provisions of this order shall be taken as affecting the power of the High Court or
Court of Appeal to make an order of committal of its own initiative against a person guilty of contempt of
court."

13 In Director of Public Prosecutions v Channel Four Television Co Ltd [1993] 2 All ER 517, a case to which
we shall have to return later in this judgment, Woolf LJ said that the combined effect of section 45(4) of the 1981
Act and RSC Ord 52, r 5 was that the other provisions of RSC Ord 52 did not affect the power of the Crown Court
to make an order of committal of its own initiative against a person guilty of contempt of court. We do not consider
that that assists the defendant in this case.
14 Mr Krolick has referred us to three authorities which are said by him to point to a Divisional Court being the
only court with jurisdiction, or at least the appropriate court to exercise the jurisdiction, to consider breaches of
restraint orders made by the Crown Court. The first two are decisions of the Civil Division of the Court of Appeal
and the third of a Divisional Court.
15 In Balogh v St Albans Crown Court [1975] QB 73 the appellant planned to disrupt a sitting of the Crown
Court by releasing a cylinder of laughing gas into the ventilation system. He was intercepted before he could do the
deed and brought before Melford Stevenson J who found him to be in contempt and sentenced him to six months'
imprisonment. The Court of Appeal quashed the finding and sentence. They held that the appellant had not
committed the contempt since his acts were only preparatory; moreover by the time the appellant was brought
before the judge he was already in custody on a charge of theft of the gas cylinder. There was, therefore, no
urgency justifying the court in exercising its power to institute contempt
[2009] 1183
1 WLR RvM

proceedings of its own motion, try them summarily and make an order for committal. The summary power extends
only to contempt in the face of the court or interference with the administration of justice which affects or is
calculated to affect a trial in progress or about to start. In other cases a judge should leave it to the Attorney
General or the party aggrieved to apply to a Divisional Court under RSC Ord 52. (The requirement for urgency
before the summary jurisdiction can be exercised was queried in R v Griffin (1988) 88 Cr App R 63, but that need
not detain us here.)
16 We note that, at p 89E of the Balogh case, Stephenson LJ said that he did not accept the argument that the
limits on the power of a superior court (which, of course, includes the Crown Court) to imprison a contemnor are
defined or restricted by the Rules of the Supreme Court.
17 Rooney v Snaresbrook Crown Court (1978) 68 Cr App R 78 was a case where a judge in the Crown Court
fined a company director for contempt, finding that he had dismissed an employee for having been on jury service.
It was held that the case of contempt was not made out on the facts, but, in any event, that this was an inappropriate
case to be dealt with under the summary jurisdiction. There was no alleged contempt in the face of the court since
the trial in which the employee had served as a juror was already over. Whether the employer was found in
contempt and punished or not would have no effect on the criminal proceedings. This court therefore considered
that it should have been left to the Attorney General to decide whether to apply for committal by motion to the
Divisional Court under RSC Ord 52. In any event, the judge should not have dealt with the case himself since it
was "very undesirable for him to have been both prosecutor and judge".
18 Both the Rooney case and the Balogh case were cases of alleged criminal contempt, that is to say either
contempt in the face of the court or conduct tending to interfere with a trial which is under way or just about to
begin. There are two possible ways of dealing with criminal contempt: one by the exercise of the summary
jurisdiction, the other by an application to a Divisional Court. Neither case has anything to say about civil
contempt, that is to say breach of a court order carrying the contempt sanction. That brings us to Mr Krolick's third
authority, the Channel Four case [1993] 2 All ER 517, which is the one closest to the present case.
19 A judge of the Crown Court had made an order for disclosure of documents against Channel Four under
terrorism legislation. They refused to comply, citing the journalist's duty of protecting the confidentiality of his
source. The Director of Public Prosecutions brought contempt proceedings by motion in the Divisional Court.
20 Woolf LJ said that in "this type of case" the application should invariably be heard by a Divisional Court.
By "this type of case" we understand Woolf LJ to have meant an application against the media, which, even before
the enactment of the Human Rights Act 1998, and a fortiori since then, raised substantial issues of principle. He
was not referring to all contempt applications, nor even all civil contempt applications, emanating from the work of
the Crown Court, since otherwise the detailed discussion which follows, at p 520G, would have been unnecessary.
21 On the more general issue of jurisdiction to deal with civil contempts consisting of disobedience to an order
of the Crown Court, Woolf LJ said, at p 520:
[2009] 1184
1 WLR RvM

"it is also correctly accepted by all parties that in the case of these alleged contempts, which are said to consist
of disobedience to an order of that court or a breach of an undertaking given to that court, both the Crown
Court and the Divisional Court have jurisdiction to deal with an application for committal."

22 As Mr Krolick rightly says, this observation is obiter since in the Channel Four case [1993] 2 All ER 517
the Director of Public Prosecutions had chosen the course of applying by motion to the Divisional Court.
Nevertheless, we regard it as significant that Woolf LJ, Pill J, Andrew Collins QC, David Calvert-Smith, Jonathan
Caplan QC and Gareth Williams QC all appear to have accepted that there was concurrent jurisdiction possessed by
a Crown Court and the Divisional Court.
23 Woolf LJ went on, at p 520G, to consider when it is appropriate for the alleged contempt to be dealt with by
a judge in the Crown Court and when it is appropriate for it to go before a Divisional Court. He noted that the
question of jurisdiction was "already under consideration", which appears to mean by the then Rule Committee.
(Matters do not appear to have progressed any further in the intervening 15 years.) He said it would not be right for
him to anticipate the result of that consideration and went on [1993] 2 All ER 517, 520-521:
"In the meantime, if an application is dealt with in the Crown Court then it is important that the need is
recognised for justice not only to be done but to be seen to be done. The judge should not appear to be the
prosecutor acting in his own cause. Here the comments of the Court of Appeal in Balogh v St Albans Crown
Court should be borne in mind."

24 In the present case there is no question of the judge acting as prosecutor. The proceedings before Judge
Goymer had been instituted by the Crown Prosecution Service. They were in effectively the same position as a
claimant in civil proceedings who has obtained a freezing injunction and later alleges that the defendant has acted in
breach of it. Unlike the Channel Four case the present one does not raise any civil liberties issues of general
importance. We can see no reason why the contempt proceedings should not be tried by a single judge in the court
whose restraint order the defendant is said to have breached, just as would occur in the case of a freezing injunction.
25 Mr Krolick's final point on jurisdiction is that, if there were jurisdiction in the Crown Court, surely there
would be an express provision in the Criminal Procedure Rules dealing with it, whereas in fact there is not. But the
fact that there is no express provision in the Criminal Procedure Rules does not mean that the jurisdiction does not
exist. There is no dispute, and could be no dispute in the light of the authority of the Balogh case [1975] QB 73,
that the Crown Court retains its summary jurisdiction to deal with contempt of court in appropriate circumstances.
We are not aware of any express rule dealing with that either. Indeed, before the relatively recent introduction of
the Criminal Procedure Rules, there were many aspects of Crown Court work which were not the subject of specific
provisions under the old Crown Court Rules.
26 We note that earlier this year in R v Adewunmi [2008] 2 Cr App R (S) 326 this court heard an appeal
against a penalty imposed in the Crown Court for breach of a restraint order. The court in that case noted, at para
13
[2009] 1185
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of the judgment, that it had also been told about a number of other cases in which sentences had been passed in the
Crown Court for such breaches. No one appears to have taken the jurisdiction point which Mr Krolick has raised,
either in the Crown Court or on appeal. We consider that counsel and the court in R v Adewunmi did not miss a
trick because when analysed the jurisdiction point is, with respect to Mr Krolick, of no real substance.
27 Mr Krolick's fallback position is that the judge should have struck out the application for failure to comply
with the requirements of RSC Ord 52, for example because the evidence in support was contained in section 9
statements rather than in affidavits.
28 However RSC Ord 52 is, or, at any rate, its procedural provisions are, not directly applicable in the Crown
Court and if they were the companion Practice Direction to RSC Ord 52, at paragraph 10, would apply, allowing
the court to "waive any procedural defect in the commencement or conduct of a committal application if satisfied
that no injustice has been caused to the respondent by the defect".
29 The judge did accept Mr Krolick's submission that the statement in support did not deal with the issues as it
should have done and that there should be a fuller statement making it perfectly clear to the defendant what he is
alleged to have done in breach of the order. The judge declined to rule at that stage on whether to strike out the
application since he was not hearing the substantive application to commit, but merely giving directions and
deciding the jurisdiction point. We are content to leave it to the judge when the hearing before him resumes, which
we understand is to be on 21 August, to decide whether the material then before him is sufficiently clear and
particularised to enable the contempt application to proceed. This appeal must be dismissed.

Appeal dismissed.

MB

[2009] 1 W.L.R. 1179