High Court Has No Jurisdiction to Entertain Crown Court “Contempt in the Face” on a Direct Judicial Reference Without Law Officer Seisin

1. Introduction

The appeal arose from an unusual procedural course following a criminal trial in the Crown Court at Woolwich. The appellant, a King’s Counsel (named in the proceedings), delivered a closing speech for a defendant in a multi-defendant trial relating to an incident at premises operated by Elbit Systems Ltd. The trial judge (Johnson J, sitting as a Crown Court judge) had earlier ruled that counsel must not invite the jury to disregard rulings of law, juror oaths, or apply “jury equity”.

After the closing speech, the trial judge issued a written ruling identifying passages said to breach his directions. The criminal trial ended with a discharge of the jury after mixed outcomes, and the prosecution indicated an intention to seek retrials on unresolved counts. In written submissions, prosecution counsel suggested the court consider whether counsel’s conduct might amount to contempt in the face of the court and outlined possible routes (including referral to the Attorney General).

Instead of commencing summary contempt proceedings in the Crown Court or referring the matter to the Attorney General, the trial judge made an order that effectively transmitted the issue to the Administrative Court. A High Court judge sitting in the Administrative Court (Edis LJ) then initiated steps consistent with CPR Part 81.6 (“proceedings of the court’s own initiative”), including directions for a Divisional Court hearing and service of a summons.

The central issue for the Court of Appeal was jurisdictional: could the High Court entertain, of its own motion and without Law Officer intervention, an alleged contempt in the face of the Crown Court “referred” by the trial judge?

2. Summary of the Judgment

The Court of Appeal held that:

• A superior court of record has common law power to deal summarily with contempt in the face of that court; and any court may refer alleged contempt to the Attorney General.
• However, there is no third route whereby a Crown Court judge can directly refer an alleged contempt in the face of the Crown Court to the High Court for determination (without Law Officer application).
• CPR 81.6 is directed to the High Court considering contempt of itself (including contempt in its face), not contempt of another court.
• The directions made by Edis LJ in the Administrative Court were set aside, and a declaration was granted that the Administrative Court/Divisional Court lacked jurisdiction in the absence of an application by the Attorney General.

The Court granted permission to appeal, set aside the Administrative Court’s directions, and left the matter to return to the trial judge to consider lawful routes (e.g. referral to the Attorney General, referral to professional regulators, or use of Crown Court summary powers where appropriate).

3. Analysis

3.1 Precedents cited (and how they shaped the result)

(a) Early foundations and the “summary” nature of contempt

The parties debated the significance of The King v Almon [1765] 97 ER 94. The Court of Appeal treated the pre-1873 material as offering limited assistance on the modern jurisdictional question, while acknowledging its role in explaining why contempt developed as a procedure capable of swift, non-jury resolution (historically by attachment).

(b) High Court reluctance to punish contempts of “other” courts

A line of authority supported the proposition that committal jurisdiction is generally confined to contempt of the court in question:

• In the matter of an application for an attachment for contempt of court (1886) 2 TLR 351: strong judicial scepticism that King’s Bench could imprison for contempt committed “in another place”.
• R v Gray [1900] 2 QB: emphasised the scrupulous and exceptional use of summary contempt powers, and contrasted this with proceedings brought by the Attorney General.
• R v Parke [1903] 2 QB 432: stated that committal for contempt is confined to contempt “of the Court exercising the jurisdiction”, with the historical exception explained by assizes being treated as a branch of the High Court.
• R v Davies [1906] 1 KB 32: justified High Court intervention where inferior courts lacked adequate protective powers, but did not establish a modern mechanism for a Crown Court-to-High Court “transfer” of a “contempt in the face” allegation.

Although these authorities pre-date the Crown Court’s creation as a “superior court of record”, they informed the Court’s view of the constitutional and jurisdictional boundaries later reflected in modern practice: the High Court is not a general “contempt tribunal” for other courts absent established routes, particularly Law Officer seisin.

(c) The modern anchor: Balogh v St Albans Crown Court

The Court treated Balogh v St Albans Crown Court [1975] 1 QB 73 as foundational. Key themes drawn from Balogh included:

• Summary contempt exists for urgent, imperative situations requiring immediate action to protect the administration of justice.
• Otherwise, a judge should ordinarily leave it to the Attorney General or an aggrieved party to initiate committal proceedings, to avoid the appearance of the judge acting as both prosecutor and judge.

This framework underpinned the Court’s rejection of an intermediate “direct referral to the High Court” path as an unauthorised procedural innovation.

(d) Reinforcement of Law Officer-led committal as the normal route

The Court relied on a series of modern authorities emphasising that, save for exceptional summary cases, contempt should proceed via Law Officer decision-making:

• Attorney General v Dallas [2012] 1 WLR 991 (juror contempt): stressed that summary action by the Crown Court should be “very exceptional”, and otherwise such contempts should be left to proceedings by the Attorney General.
• Re Yaxley-Lennon [2018] 1 WLR 5400: confirmed courts may initiate contempt in some circumstances, but the “more general practice” is to invite the Attorney General to safeguard the public course of justice.
• Solicitor General v Holmes [2019] EWHC 1483 (Admin): analysed the structure of CPR Part 81 and (as the Court of Appeal held) correctly located CPR 81.6 as preserving the original court’s own-initiative powers for contempt of itself, not for contempts of other courts.

(e) The Attorney General’s constitutional function

The Court cited the explanation in AG v Times Newspapers [1974] AC 273 (discussing R v Hargreaves, ex parte Dill The Times, November 4, 1953) to highlight why Law Officer involvement is not merely procedural formality. The Attorney General:

• represents the public interest in the administration of justice;
• filters allegations: is not obliged to bring every prima facie case;
• provides constitutional separation between adjudication and prosecutorial decision-making.

This constitutional rationale supported the Court’s conclusion that the Law Officer’s role could not be bypassed by reframing the matter as High Court “own initiative” proceedings following a Crown Court “reference”.

(f) The “Bailey” departure and why it did not stand

The only authority appearing to support a High Court own-initiative pathway for contempt of an inferior tribunal was R (Bailey and Morris) v Secretary of State for Justice; Parole Board for England and Wales, Interested Party [2023] EWHC 821 (Admin), followed by [2023] EWHC 1438 (KB). The Court of Appeal noted that it was unclear what argument or authority had been addressed in Bailey on the scope of CPR 81.6, and it preferred the analysis in Solicitor General v Holmes.

In effect, Menon narrows any reading of Bailey as supporting High Court self-starting contempt proceedings for contempts of other fora, at least in the context of “contempt in the face” of the Crown Court.

3.2 Legal reasoning

(a) Structural point: what court’s contempt is it?

The alleged contempt was “in the face of the Crown Court” (closing speech said to breach judicial rulings made during a criminal trial). The Court’s reasoning turned on a basic but decisive question: which court’s authority was allegedly affronted? The answer was the Crown Court’s, and therefore lawful responses were limited to:

• Crown Court summary contempt (common law power, now procedurally structured by CrimPR Part 48); or
• Law Officer application to the High Court (Divisional Court) for committal-style proceedings.

The Court found no lawful “transfer” jurisdiction from the Crown Court to the High Court simply by a trial judge sending the issue to the Administrative Court.

(b) Interpretation of CPR Part 81: “the court” means the court contemned

The Administrative Court proceeded on the premise that CPR 81.6 compelled the High Court to consider initiating proceedings whenever it considered contempt “may have been committed”. The Court of Appeal rejected this as a category error: in context, CPR 81.6 concerns the High Court acting on its own initiative where contempt of itself is in issue. It does not expand the High Court’s jurisdiction to contempts of other courts.

This approach aligned with CPR 81.1(2)-(3), which states that Part 81 does not alter the scope of contempt jurisdiction and operates subject to substantive contempt law.

(c) The significance of the Crown Court’s post-1971 status

The Court highlighted the post-1971 architecture: the Crown Court is a superior court of record with contempt powers equivalent to the High Court (Courts Act 1971, as reflected in the Senior Courts Act 1981 framework). Consequently, historical rationales for High Court intervention to protect “inferior courts” (as in some older authorities) do not map neatly onto a Crown Court contempt in the face case.

(d) Why the Court resolved jurisdiction now (not later)

A practical and constitutional reason reinforced early resolution: because of s 13 of the Administration of Justice Act 1960, the only route of appeal from a Divisional Court contempt decision is to the Supreme Court. The Court considered it “very undesirable” for a Divisional Court to proceed to determine jurisdiction and merits (and potentially impose sanction) only for a later Supreme Court decision to find the Divisional Court lacked jurisdiction.

3.3 Impact

(a) A clear bright line against “direct referral”

This decision is likely to be treated as a strong procedural control point: Crown Court judges cannot create High Court jurisdiction by administrative transmission of a contempt issue. If the response is not immediate/summary within the Crown Court, the Law Officers remain the orthodox gateway to High Court committal.

(b) Recalibration of guidance materials

The Court expressly disagreed (as a matter of law) with the suggestion in the Judicial Office “Advisory Note: Contempt in the face of the court” that a Presiding Judge may “transfer” a Crown Court contempt issue to a High Court judge “of the relevant Division” to deal with it as contempt in the face of the court (option 19(3)). The decision signals that guidance must track jurisdictional limits: a High Court judge may be involved only if sitting as a Crown Court judge exercising Crown Court powers, or if the Law Officers apply to the High Court.

(c) Practical case management consequences in trials

Where alleged contempt is intertwined with upcoming retrials or ongoing proceedings, the judgment encourages:

• use of CrimPR Part 48 (including postponement mechanisms) where summary action is truly necessary and fair; and/or
• referral to the Attorney General (and, separately, professional regulation routes) where the public interest filter and institutional independence are central.

4. Complex concepts simplified

4.1 “Contempt in the face of the court”

This is contempt committed in the courtroom context (or so closely connected that the court can treat it as such), capable of being dealt with summarily to protect proceedings—classically disruption, intimidation, or serious interference with justice during a trial. In this case, the alleged contempt was advocacy said to contravene a judicial ruling during closing speech.

4.2 “Summary” contempt vs “committal application”

• Summary contempt: the trial court itself acts (often immediately, though it may postpone), using its own powers. In the Crown Court this is now structured by CrimPR Part 48, which builds in notice and fairness safeguards.
• Committal application: proceedings in the High Court (often a Divisional Court) brought by a Law Officer (or sometimes a party, depending on category), with permission requirements in some contexts under CPR 81.3.

4.3 Why the Attorney General matters here

Beyond technical form, the Attorney General performs a constitutional function in contempt: deciding whether it is in the public interest to prosecute alleged contempt that affects the justice system, and presenting the matter to court in a way that preserves judicial neutrality.

4.4 Administrative Court vs Divisional Court

The Administrative Court is part of the King’s Bench Division. A “Divisional Court” is a constitutionally significant formation (usually two judges or more, sometimes three) used for certain matters, including many public law and contempt applications. Here, the attempted pathway was: Crown Court → Administrative Court → Divisional Court. The Court of Appeal held the first step could not lawfully found High Court jurisdiction.

5. Conclusion

Menon [2026] EWCA Civ 573 establishes that alleged contempt in the face of the Crown Court cannot be “exported” to the High Court by a trial judge’s direct reference. The lawful routes remain: (i) the Crown Court’s own summary jurisdiction (subject to fairness and procedural safeguards), or (ii) Law Officer-led proceedings in the High Court. The decision reinforces strict procedural discipline in contempt, affirms the constitutional role of the Attorney General, and corrects (at least for Crown Court contempts in the face) any suggestion that CPR 81.6 permits the High Court to self-start proceedings for contempts of other courts.

Disposition: Permission to appeal granted; Administrative Court directions set aside; declaration made that the Administrative Court/Divisional Court lacked jurisdiction absent an Attorney General application; matter left to return to the trial judge for lawful next steps.