Warner, R, v

Factual and Procedural Background

The appellant, a Jehovah's Witness and elder in a Congregation in Cornwall, was a witness in a criminal trial at the Crown Court at Truro in July 2018. The trial concerned the Defendant, who was charged with inflicting grievous bodily harm on the Complainant outside the Kingdom Hall of Jehovah's Witnesses. The appellant gave evidence supporting the prosecution's case by witnessing the Defendant push the Complainant.

During cross-examination, the appellant refused to answer questions about a judicial committee that had disfellowshipped the Defendant, citing confidentiality obligations as an elder. Despite repeated judicial directions to answer, the appellant maintained his refusal, leading the judge to warn of contempt of court. The appellant was found in contempt, fined £500, and now appeals that finding pursuant to s.13 of the Administration of Justice Act 1960.

Legal Issues Presented

1. Whether the judge erred in finding the appellant in contempt of court for refusing to answer questions during cross-examination.
2. Whether the appellant was entitled to take legal advice before being compelled to answer questions that allegedly conflicted with a duty of confidentiality as a religious elder.
3. Whether the judge properly applied procedural fairness in contempt proceedings under Criminal Procedure Rule 48.5.
4. Whether the appellant had a legitimate claim of privilege or immunity preventing him from answering the questions.
5. The scope and exercise of the court's discretion in compelling answers when confidentiality and religious duties are implicated.

Arguments of the Parties

Appellant's Arguments

• The appellant did not act with wilful defiance but out of a genuine religious duty of confidentiality as an elder of Jehovah's Witnesses.
• He had sought guidance from his religious "legal desk" before the trial and was told confidentiality was absolute.
• The judge failed to explain clearly that the Defendant had waived confidentiality and did not allow the appellant to seek legal advice before the final refusal to answer.
• This procedural failure breached Criminal Procedure Rule 48.5, which requires explanation of the conduct, possible penalties, and the opportunity to take legal advice.
• Had the appellant been allowed legal advice before answering, he likely would have complied, avoiding contempt and trial disruption.

Respondent's Arguments

• The Criminal Procedure Rule 48.5 does not require the court to provide legal advice to every witness when a contempt might occur.
• The rule applies only when contempt proceedings are or are about to be instigated, which was not the case at the time of questioning.
• The questions were clear, relevant, and necessary for assessing the appellant's independence as a witness.
• The judge's brief explanation that confidentiality belonged to the Defendant was adequate for a layperson.
• If concerned about the appellant contacting the "legal desk," the judge could have allowed prosecution counsel to clarify confidentiality instead of permitting external advice.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized that the appellant was a competent and compellable witness, bound to answer relevant and permissible questions unless a valid immunity or privilege applied. It found no recognized legal privilege, such as public interest immunity or legal professional privilege, applied to the appellant's refusal.

The court referred to Attorney General v Mulholland and Foster to highlight the necessity of judicial discretion in balancing the relevance and utility of questions against the potential harm caused by compelling answers where confidentiality is implicated.

Procedural fairness under Criminal Procedure Rule 48.5 requires the court to explain to the respondent the conduct in question, possible penalties, and the right to legal advice, and to allow a reasonable opportunity to reflect and seek advice.

The court found that the judge erred by not adequately explaining to the appellant that confidentiality had been waived by the Defendant and by refusing the appellant's request to contact his religious "legal desk" for advice before being compelled to answer. This refusal deprived the appellant of a reasonable opportunity to take legal advice and understand fully the consequences of answering or refusing.

The judge treated the appellant as making a fully informed choice, but the court found this to be flawed because the appellant lacked clear information about the waiver of confidentiality. The court also noted that alternative routes existed for obtaining advice, but the judge did not explore these.

Had the appellant been permitted to seek legal advice, it likely would have emerged that he could answer without breaching his religious duties, avoiding contempt and enabling the trial to proceed. The court concluded that this procedural irregularity amounted to serious unfairness.

Holding and Implications

The appeal is allowed and the finding of contempt of court is quashed.

The court exercised its power under s.13(3) of the Administration of Justice Act 1960 to reverse the lower court's order. The direct effect is that the appellant's contempt conviction and fine are set aside. No new precedent was established beyond clarifying the procedural fairness obligations under Criminal Procedure Rule 48.5 in the context of witnesses with religious confidentiality duties. The decision underscores the importance of providing witnesses a clear explanation of their rights and an opportunity to obtain legal advice before contempt findings are made.