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Menon, Re Contempt Proceedings Against
Factual and Procedural Background
This opinion concerns contempt proceedings arising from remarks made by Appellant in closing speech for the Defendant at a trial in the Crown Court at Woolwich before Judge Johnson. The Civil Division's judgment of 12 May 2026 ([2026] EWCA Civ 573) recorded the history to that date and left to Judge Johnson the choice of steps noted in paragraph 62 of that judgment (refer to the Attorney General, to the Bar Standards Board, or to another High Court Judge sitting in the Crown Court). On 22 June 2026 Judge Johnson decided to institute summary contempt proceedings of the court's own motion and directed that the matter be reported to the Presiding Judge. The Presiding Judge (Judge Nicklin) directed on 29 June 2026 that summary contempt proceedings be instituted and issued a summons for the Appellant to attend a hearing before Judge Cheema Grubb on 28–29 July 2026. Case management orders were made by Judge Cheema Grubb on 9 July 2026, including preserving the hearing date absent a stay or unresolved appeal. The Appellant lodged an interlocutory appeal on 20 July 2026 under section 13 of the Administration of Justice Act 1960 challenging jurisdiction, bias and related matters and sought a stay of the contempt hearing; Judge Cheema Grubb refused a stay. The Appellant then applied to this court for urgent relief.
Legal Issues Presented
- Whether Judge Johnson and Judge Nicklin acted without jurisdiction or otherwise wrongly in instituting summary contempt proceedings after the underlying trial had concluded.
- Whether Judge Cheema Grubb was wrong to refuse a stay of the contempt proceedings pending determination of the Appellant's interlocutory jurisdictional and procedural challenges.
- Whether a fair-minded and informed observer would conclude there was a real possibility of bias affecting the Appellant's right to a fair trial.
Arguments of the Parties
Appellant's Arguments
- The power for the Crown Court to institute summary contempt proceedings is no longer available once delay has occurred; it must be exercised promptly or not at all.
- Judge Johnson and Judge Nicklin acted without jurisdiction and/or wrongly in instituting summary proceedings after the trial.
- Judge Cheema Grubb was wrong to appoint counsel instructed by the Director of Public Prosecutions to act as advocate to the court and wrong to refuse a stay; there is a risk of unfairness and apparent bias.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| [2026] EWCA Civ 573 | Sets out the history to 12 May 2026 and the options indicated in paragraph 62 (refer to Attorney General, Bar Standards Board, or another High Court Judge). | Used as part of the background and to identify that Judge Johnson was left to decide the appropriate step; the court assumed arguability of a challenge to the exercise of powers left open by that judgment. |
| (1989) 88 Cr App R 63 | Illustrates that, in cases with unusual features (here counsel acting in ongoing proceedings), general principles may justify delay in invoking summary contempt jurisdiction until after trial. | Relied on by Judge Johnson (as described in the opinion) to support the conclusion that there was no jurisdictional bar to instituting summary proceedings after the trial. |
| Wilkinson | Recognised (as stated) that in cases where counsel are acting in ongoing proceedings it can be appropriate to delay invoking summary contempt jurisdiction until after the end of the trial. | Quoted in Judge Johnson's reasoning to justify delaying summary contempt proceedings to avoid derailing the underlying trial. |
| Order of 10th April 2026 by Lord Justice Edis (endorsed 12th May 2026) | States the general rule that a defendant/respondent who raises an arguable jurisdictional challenge is entitled to have that challenge determined before engaging with the merits. | Applied by this court as the governing rule in determining that, given arguability, the jurisdictional challenge should be resolved before the contempt hearing proceeds; it supported granting a stay. |
Court's Reasoning and Analysis
The court first set out the procedural history and the prior Civil Division judgment. It recorded Judge Johnson's view that, given the unusual feature that the alleged contemnor was counsel in ongoing proceedings, summary contempt proceedings could appropriately be delayed until after the trial (relying on Griffin and Wilkinson). Judge Johnson therefore instituted summary proceedings and directed referral to the Presiding Judge. Judge Nicklin ordered the summons for a hearing before Judge Cheema Grubb.
The Appellant then lodged an interlocutory appeal arguing lack of jurisdiction and unfairness; Judge Cheema Grubb refused a stay but indicated jurisdictional objections could be raised at the hearing. The court observed that the Appellant had not complied with directions to lodge jurisdictional objections by the earlier date set by Judge Cheema Grubb.
Applying the general rule (as explained by Lord Justice Edis and endorsed by the Civil Division) that an arguable jurisdictional challenge should be determined before requiring engagement with the merits, the court—while noting limited time to assess arguability—concluded the Appellant's challenge may meet the low threshold of arguability. The court considered two courses: (a) have Judge Cheema Grubb determine jurisdictional challenges at the substantive hearing (with attendant disadvantages, including wasted preparation and potential interlocutory appeals), or (b) have this court determine the jurisdictional issues first. The court preferred the latter course as better and less likely to produce unfairness or procedural inefficiency. In light of practical constraints (the appeal could not be listed before 28 July), the court directed the Appellant to lodge a formal appeal against Judge Cheema Grubb's refusal of a stay, allowed that appeal and ordered a stay of the proceedings before Judge Cheema Grubb, leaving the existing appeal (lodged 20 July 2026) to address the jurisdictional and procedural challenges.
Holding and Implications
The court allowed the Appellant's appeal against the refusal of a stay and ordered a stay of the proceedings before Judge Cheema Grubb.
Direct effects: the contempt hearing before Judge Cheema Grubb (due 28–29 July 2026) is stayed. The existing interlocutory appeal (lodged 20 July 2026) will proceed to determine the Appellant's jurisdictional and procedural challenges and must be listed in due course. The court noted that the appeal would be assisted by an advocate to the court responsive to the challenges and that further directions may be required. The opinion does not purport to lay down new legal precedent beyond its application to the facts and procedural posture of this matter.
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