Staying Crown Court Summary Contempt Where an Arguable Jurisdiction Challenge Is Raised

Case: Menon, Re Contempt Proceedings Against [2026] EWCA Crim 966
Court: Court of Appeal (Criminal Division) (Lord Justice Males; Mrs Justice Cutts)
Date: 24 July 2026
Context: Interlocutory steps in summary contempt proceedings arising from alleged misconduct in closing speech in a Crown Court trial.

1. Introduction

The appellant, a King’s Counsel, faced proposed summary contempt proceedings said to arise from his closing speech while acting as defence counsel in an ongoing Crown Court trial. Earlier litigation in the Civil Division ([2026] EWCA Civ 573) left open which procedural route should be taken: (i) referral to the Attorney General; (ii) referral to the Bar Standards Board as a conduct issue; or (iii) summary contempt proceedings before a different High Court judge sitting in the Crown Court.

Mr Justice Johnson decided on 22 June 2026 that it was appropriate to institute summary contempt proceedings of the court’s own motion and, to ensure independence from the underlying trial, directed a report to a Presiding Judge under Criminal Procedure Rules r.48.5(4)(a). The Presiding Judge (Mr Justice Nicklin) ordered that summary contempt proceedings be instituted and listed the matter before Mrs Justice Cheema Grubb.

The appellant then sought to challenge the jurisdictional basis and procedural fairness of this course, invoking an interlocutory appeal said to be under Administration of Justice Act 1960, s.13. He also sought a stay so he would not be tried for contempt before those objections were determined.

2. Summary of the judgment

• The Court of Appeal was doubtful (but did not decide) whether it had power directly to stay Crown Court contempt proceedings.
• Once the appellant had applied to the Crown Court for a stay and that stay had been refused, the Court of Appeal considered it at least possible that an appeal lay against the refusal, giving it a route to determine whether the refusal was wrong.
• Applying the “general rule” (endorsed in [2026] EWCA Civ 573), the Court of Appeal held that an arguable jurisdictional challenge should be resolved before the merits are engaged.
• Because there was no time to hear the substantive appeal before the listed contempt hearing, and no compelling urgency requiring the contempt hearing to proceed, the Court of Appeal allowed an appeal against the refusal of a stay and stayed the contempt proceedings.
• The Court of Appeal emphasised compliance with case-management directions (including timely filing of jurisdictional objections) and indicated that an advocate to the court would assist on the forthcoming jurisdiction/procedure appeal.

3. Analysis

3.1 Precedents and authorities cited (and their influence)

• [2026] EWCA Civ 573 (Civil Division)
  This was the earlier appellate stage summarised at §1 of the present judgment. It identified potential procedural routes and endorsed a general principle (derived from Edis LJ’s order of 10 April 2026) that a party raising an arguable jurisdictional challenge is entitled to have it decided before being required to meet the merits. In the present decision, that endorsement is the lynchpin for granting the stay.
• Edis LJ’s order of 10 April 2026
  Quoted at §15, it articulates the “general rule” in direct terms. The Court of Appeal treated it as governing the case unless the jurisdiction challenge could be dismissed as unarguable—which, given time constraints and the seriousness of the issues, it could not.
• Griffin [(1989) 88 Cr App R 63]
  Cited by Mr Justice Johnson (quoted at §2). Its significance in this appeal is indirect: it is part of the authority relied upon below for the proposition that summary contempt may, in an unusual case, be addressed after the trial concludes, and that courts should apply general principles rather than extract isolated passages from cases in different contexts. The Court of Appeal did not decide whether that reasoning was correct; it treated the challenge as at least arguable.
• Wilkinson
  Referred to in Mr Justice Johnson’s quoted reasoning (§2) for the proposition that in cases involving counsel during ongoing proceedings, delaying resort to summary contempt until after trial can be appropriate to avoid derailing the trial and causing unfairness. Again, the Court of Appeal did not rule on the merits, but accepted that the appellant’s contrary case might be arguable.

3.2 Legal reasoning

(a) The procedural gateway: from “doubtful power to stay” to “appeal against refusal”

The Court of Appeal acknowledged a threshold institutional concern (§10, §14): whether it can order a stay of Crown Court contempt proceedings at all. Rather than determining that constitutional/jurisdictional point, it relied on a narrower and more pragmatic route: once the Crown Court refused a stay, there was “at least possible” scope for an appeal against that refusal, which the Court of Appeal could determine. This is an important aspect of the decision’s technique: it avoids an unnecessary definitive ruling on the appellate court’s inherent/standalone power to stay, while still ensuring that the “general rule” is effective in practice.

(b) The “general rule” and the threshold of arguability

The operative principle (§15–§16) is procedural fairness: a party should not have to prepare for, and participate in, merits litigation if the tribunal may lack jurisdiction to conduct it. The Court of Appeal treated “arguability” as a “relatively low hurdle” (§16). Given:

• the compressed timetable (days before a listed hearing);
• the seriousness of summary contempt (potential penal consequences); and
• the fact that extensive authority had been debated below, but the appellate court could not review it in time,

the Court of Appeal declined to characterise the jurisdiction challenge as unarguable without a proper hearing.

(c) Why determination of jurisdiction in the contempt hearing itself was disfavoured

The Court of Appeal identified concrete disadvantages (§17) to leaving jurisdiction objections to be decided “within” the listed contempt hearing:

• Efficiency and burden: the parties would need to prepare on both jurisdiction and merits, increasing cost and complexity.
• Fragmented appeals: if jurisdiction failed before the Crown Court judge, an appeal might follow “as of right”, leaving the merits decision in an unstable posture.
• Institutional comity: it would be “unsatisfactory” for one High Court judge sitting in the Crown Court to determine whether orders made by other High Court judges (also sitting in the Crown Court) were without jurisdiction or otherwise wrong.

These reasons justify the appellate preference (§18) for an appellate determination first—i.e., the second course.

(d) Case management discipline and fairness

The Court of Appeal’s observations at §12 are not merely admonitory; they frame how fairness is operationalised in contempt proceedings: even where jurisdiction is contested, the litigant should comply with directions (or seek extensions in advance). The court indicated that earlier filing of the objections could have enabled the Crown Court to consider vacating the hearing or splitting jurisdiction as a preliminary issue. This is a clear signal that “jurisdiction-first” does not excuse procedural default.

3.3 Impact

• Reinforcement of jurisdiction-first sequencing in contempt: The decision strengthens the practical expectation that arguable jurisdiction challenges in summary contempt should be resolved before merits engagement, even where listing pressures exist.
• A workable appellate route to a stay: Although the Court did not finally determine a general power to stay Crown Court contempt proceedings, it demonstrated a pathway: seek a stay in the Crown Court; if refused, appeal the refusal, enabling appellate intervention to prevent a potentially unlawful merits hearing.
• Guidance on forum appropriateness: The Court’s concern about one High Court judge sitting in the Crown Court assessing the jurisdictional propriety of another’s orders may influence future case allocation decisions and encourages appellate resolution of structural challenges.
• Advocate to the court: The judgment anticipates that an advocate to the court is valuable on the forthcoming jurisdiction/procedure appeal (§21), helping ensure adversarial testing where contempt is pursued “of the court’s own motion.”

4. Complex concepts simplified

• Summary contempt: a procedure allowing the court to deal with alleged contempt swiftly, sometimes without the full apparatus of an ordinary criminal trial. Because it can result in punishment, safeguards and clear jurisdictional footing are crucial.
• “Of the court’s own motion”: the court initiates the contempt process itself rather than relying on a prosecuting authority to bring proceedings.
• Jurisdictional challenge: an argument that the court has no legal power (or no longer has power) to take the step it proposes (here, instituting summary contempt after delay and after the underlying trial).
• Stay: a pause in proceedings. A stay here prevents the contempt hearing from going ahead until the legality of having that hearing is resolved.
• Advocate to the court: counsel appointed not to represent a party, but to assist the court by making submissions (including responses to the alleged contemnor’s arguments), promoting fairness where proceedings are court-initiated.

5. Conclusion

Menon, Re Contempt Proceedings Against [2026] EWCA Crim 966 is a procedural decision with significant practical consequences for summary contempt in the Crown Court. It confirms that where a respondent raises an arguable jurisdictional challenge, the court system should ordinarily ensure that challenge is determined before the respondent is put to meet the merits. The Court of Appeal achieved this by granting a stay (via an appeal against the refusal of a stay), preserving the integrity of the forthcoming jurisdiction and fairness appeal and avoiding the risk of a contempt hearing proceeding on a potentially defective jurisdictional basis.