England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Monday 1st February 1999

B E F O R E :

LORD JUSTICE SWINTON THOMAS

MR JUSTICE TUCKER

and

MR JUSTICE PENRY-DAVEY

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R E G I N A

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THOMAS LUBEGA

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

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MR S WILSHIRE appeared on behalf of the Appellant

MR M THOMPSON appeared on behalf of the Crown

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

Monday 1st February 1999

JUDGMENT

LORD JUSTICE SWINTON THOMAS: Mr Justice Tucker will give the judgment of the Court.

MR JUSTICE TUCKER: On 20th January 1999, that is to say twelve days ago, in the Crown Court at Wood Green, the appellant, Thomas Lubega, was convicted of being in contempt of court and he was sentenced to 28 days' imprisonment. Leave has been obtained from the Single Judge and the case listed for hearing at the first opportunity.

The appellant, with another defendant, appeared before the judge at that court on 19th January to commence his trial. As it turned out subsequently the jury were unable to reach a verdict and they were discharged from reaching that verdict.

The appellant attended court on two days, 19th and 20th January. He was on bail, a condition being one of residence. On the first day the appellant turned up late and the judge gave him a stern warning, telling him he "should realise that being late counts as a breach of bail, it constitutes another offence" and said:

"If you are late tomorrow I'll regard it as a contempt and you'll find yourself in the cells."

Despite that warning the appellant was late the following day. His case was listed for hearing at 10.15am, but the appellant was not in sight. He turned up twenty minutes late. Meanwhile the learned judge had revoked his bail and had said:

"If and when he turns up he could be put straight in the cells. You can address me at the end of the day, Mr Wilshire, on the subject but I'm going to treat it as contempt of court."

When the appellant did turn up the judge then indicated that he proposed to deal with the matter there and then rather than at the end of the day. Counsel addressed the court, giving the appellant's explanation, regarding it no doubt as a potential offence under the Bail Act 1976. Counsel requested further time to consider the position about any alleged contempt of court and made that request on two occasions. However counsel's requests were refused, and after further exchanges the judge sentenced the appellant to 28 days' imprisonment for contempt.

The following day, after counsel had had an opportunity to research the point, he invited the judge to reconsider his decision, but the judge declined to do so.

It is clear that a judge must have power to control the proceedings in his own court, and that includes the power to ensure that the trial before him commences on time and that those concerned in it attend punctually. Having said that, it is equally important that anyone who is deemed to have committed an offence should be given a proper opportunity either personally or by his representative to advance any explanation and to present any argument. Moreover if, after careful investigation, it is found that an offence has been committed, the sentence imposed must be proportionate to the seriousness of the offence and to the degree of inconvenience caused to the court.

This Court can well understand the annoyance caused to the learned judge by the appellant in the present case, particularly having regard to his conduct the previous day. However, it must be borne in mind that the appellant did turn up at court and that although he was late and for the second occasion, he was late by only twenty minutes.

The first question for us to consider is whether in the circumstances the judge was entitled to treat this appellant's conduct as contempt of court. In our opinion he was not, for two reasons. First, if the appellant committed any offence it was one contrary to the provisions of the Bail Act 1976. Section 3(1) provides that:

"A person granted bail in criminal proceedings shall be under a duty to surrender to custody, and that duty is enforceable in accordance with section 6 of this Act."

Section 6(1) provides that:

"If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody he shall be guilty of an offence."

It is apparent from these provisions that the offence, if any, which the defendant committed was one contrary to section 6. Once the offence had been established, then the method of punishing it is prescribed by section 6(5), which provides:

"An offence under subsection (1) or (2) above shall be punishable either on summary conviction or as if it were a criminal contempt of court."

Note the omission of the words "in the face of the court".

In the case of Schiavo v. Anderton (1986) 83 Cr.App.R. 228 Watkins LJ said that "an offence under section 6 of the Bail Act is not a contempt of court". Similarly in R. v. Reader (1987) 84 Cr.App.R. 294, Leggatt J held that the offence of absconding whilst on bail has never constituted a contempt of court.

In our opinion the effect of section 6(5) is not to convert an offence under the Bail Act into a contempt of court, but simply to provide a speedy and effective alternative method of dealing with such an offence. Therefore it follows that the judge was not entitled to deal with the matter as a contempt of court and he erred in doing so.

The second reason for our conclusion is that even if the appellant's conduct had amounted to a contempt, the judge ought to have given longer consideration to the problem and certainly ought to have allowed counsel the time he requested on two occasions in order to look into the matter further. In these circumstances the conviction for contempt of court must be quashed.

We have considered whether it would be possible for us to substitute a conviction under section 6 of the Bail Act or whether, even if it was possible, it would be right for us to do so. In the circumstances of this case, having regard to the lack of opportunity which counsel was given to address the learned judge on the matter and having regard to the sentence already served, we do not regard it as a case in which we should consider substituting such a conviction. We reach no decision as to whether or not it would have been possible for us to do so.

In those circumstances, as we say, the conviction will be quashed and with it, of course, the sentence.