This morning, the High Court handed down its judgment following an appeal by barrister Rajiv Menon KC’s legal team against his attempted prosecution for contempt of court. Lord Justice Bean, Lord Justice Dingemans and Lord Justice Stuart-Smith ruled that Mr Justice Johnson had no jurisdiction in law to refer the matter directly to the High Court.
Real Media was the first to publish defence barrister Rajiv Menon KC’s closing speech in full during the historic first trial of the #Filton6 in January. Our coverage of the whole trial and this speech was widely quoted (often without credit) in corporate, state and independent media.
At the end of that first trial, Judge Johnson, who has now been awarded a promotion, initiated contempt of court proceedings against the barrister, after the jury failed to convict any of the defendants on a multitude of charges.
Justice Johnson alleged that Menon had defied various legal directions including informing the jury that a judge may not direct them to convict, and speaking about the principle of jury equity. Menon was also accused of breaching rulings preventing him referencing the genocide in the Middle East or the role of weapons developers and suppliers, Elbit Systems.
During his speech, Mr Menon repeated several times that Judge Johnson was absolutely not going to direct the jury to convict:
“for the avoidance of any doubt about this, I am absolutely not asking you to disregard His Lordship’s legal directions. On the contrary, I’m asking you to follow them, in particular this section on functions of judge and jury, and remind you that nobody, not even His Lordship, can dictate to you what factual conclusions to reach in this case, nor direct you to convict the defendants of any of the charges they face.”
Menon also never mentioned the term ‘jury equity’, but did tell them about the historic (1670) Bushel’s case, which established the right in British law for a jury to give their verdict according to their convictions.
His speech was carefully crafted so as to avoid directly breaching directions, while trying to deliver the best possible representation for his client in a highly politicised case during which politicians and commentators were making dangerously prejudicial public statements without any apparent consequences.
There is a recognised tension in our justice system between the requirement for a jury to honour their oath and deliver a verdict based solely on the evidence, against the independence of the jury that was established in 1670. The former is a much needed protection against prejudice, while the latter is a moral protection against state abuse of power. The hope is that in a randomly selected jury of 12, that tension plays out fairly.
This tension has played out publicly in climate protest cases over the past few years, where juries acquitted defendants after either hearing about their motivations and/or the science of climate collapse, or after realising that judges were preventing them from hearing such evidence. When defendants were being imprisoned for contempt just for mentioning climate science, supporters began holding placards outside courts stating Bushel’s legal premise that ‘jurors have an absolute right to acquit a defendant according to their conscience’.
Despite a High Court ruling (won by Trudi Warner) that it was lawful to hold such placards in silent vigil, police began arresting people outside Woolwich Crown Court towards the end of the Filton 6 retrial, using Section 14 powers (meant to control violent and disruptive protests).
Any reporting of the contempt proceedings against Rajiv Menon was initially prohibited, due to restrictions put in place by Jeremy Johnson, but these were finally lifted last week after the conclusion of the Filton retrial, and after the Court of Appeal heard from lawyers acting for the barrister, who argued against the jurisdictional legality and procedural propriety of the case.
On Friday, Rajiv’s Chambers, Garden Court, issued a powerful statement of support expressing solidarity, and describing his prosecution as “a deeply troubling development for the integrity of the justice system”. The full statement was signed by 24 of his colleagues at the top-ranked human rights firm.
The lawyers’ statement raises wider constitutional questions around the chilling effect the prosecution might have had on the ability of barristers to represent clients effectively in political cases. Indeed, at the retrial of the #Filton6, after Judge Johnson again issued orders about what could not be mentioned in defence, five of the six defendants felt they had no option but to dispense with their legal teams when it came to their closing statements.
Rajiv Menon was appointed a Queen’s Counsel in 2011 and has represented clients in serious, complex and high-profile criminal defence cases, specialising in human rights violations, miscarriages of justice, political protest and state abuse of power. He worked on the Stephen Lawrence and Grenfell inquiries, acted for victims of the Hillsborough disaster, and is currently representing 12 individuals and organisations in the Undercover Policing Inquiry.
This is the first time in legal history that a barrister was facing such a prosecution over a closing speech in a criminal trial, and the procedure being used was without precedent.
Today’s judgment rules that Mr Justice Johnson was wrong to refer the alleged contempt to the High Court, and the Divisional Court would have had no jurisdiction over the case after such a referral.
Although the ruling is widely seen as a victory for justice and common sense, it may still be open for Johnson to try an alternative route by referring the allegation to the Attorney General or to the Bar Standards Board, however churlish that may appear.
