In sentencing Tommy Robinson to 18 months imprisonment for Contempt of Court (HM Solicitor General v Yaxley-Lennon 28th October 2024), Mr Justice Johnson took into account the appropriate sentence in criminal proceedings for equivalent conduct (see paragraph 42 of the judgment).
By way of crosscheck he considered the Sentencing Council’s Guideline for breach of a Criminal Behaviour Order (see paragraph 98 of the judgment).
In my view, the judgment was a meticulously researched exposition of the law and criteria to be applied in respect of the sanctions for contempt of court.
However, it highlights what I perceive to be a fundamental injustice arising from the legislative provisions for the release of prisoners sentenced for contempt compared with defendants sentenced to imprisonment for criminal matters.
If Tommy Robinson had indeed been sentenced to 18 months imprisonment for breach of a Criminal Behaviour Order, he would be eligible for release from prison (under Home Detention Curfew) after approx. 3 and a half months. However, for the term of 18 months for contempt of court, he will not be released until he has served 9 months in prison.
The basis for the calculation of the release date for contempt of court or any kindred offence or fine defaulters is set by section 258 Criminal Justice Act 2003. It is set by law at one half of the sentence, upon which the defendant is released unconditionally. There is no provision for release at an earlier date on electronic tag.
The change in the automatic release date from half of the sentence to 40% of the sentence for many prisoners convicted of criminal offences does not apply to defendants imprisoned for contempt: (see The Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2004 which modifies sections 243A, 244 and 264 of The Criminal Justice Act 2003 but not section 258 of the Act, which has not been amended and continues to require that civil prisoners be released only after spending 50% of their term in prison.
Further, the Home Detention Curfew (HDC) provisions of the Act are interpreted as not applying to persons found to be in contempt of court. In my view this is a correct interpretation of the legislative provisions in respect of contempt for breach of a Court Order, but there may be room for dispute in connection with some other forms of contempt (e.g. false statement) which may fall outside section 305 of the Act. However, in practice no contempt prisoners are deemed eligible for HDC.
So, to put it colloquially, this is a double-whammy for contemnors and other civil prisoners. On a two-year sentence of imprisonment (the maximum for contempt at one hearing) the defendant will serve a minimum of one year whereas a criminally convicted defendant sentenced to the same term would be automatically released after 9.5 months and eligible for release on HDC after 4.8 months.
To take the same approach of Mr Justice Johnson, but factor in the actual minimum period of time, Tommy Robinson would have to spend in prison, the equivalent criminal sentence would have to be just over three years to be eligible for release on HDC after 9 months. That is double the notional sentence used to calculate the term for contempt of 18 months.
The release provisions are of course out of the control of the sentencing Judge, and are not usually taken into account in setting the sentence. However, in my submission, this is a highly relevant factor when taking into account a different sentencing regime with different release provisions. For that reason, in my view the comparison with criminal offences is inapposite and should not be applied unless regard is paid to the reality of the matter.
A further sting in the tail for a defendant sentenced in a contempt case is he is also very often faced with a massive costs bill, which bears no comparison to that which would be expected in a criminal case of the same type.
There seems to have been little or no media coverage or legal debate into what I perceive to be a savage irony that when our prisons are full to bursting point, the early release provisions and Home Detention Curfew are afforded to many prisoners for violence and other serious criminal offences (with the inherent public safety issues) but the door is shut on those civil prisoners who have breached Court Orders or not paid their fines. Logic is stood on its head. The early release provisions should be extended to civil prisoners.
