The High Court in HM Solicitor General v Stephen Yaxley-Lennon,1 ordered the committal to prison of the defendant, who goes by the name Tommy Robinson, following his breaches of an injunction. On 28 October 2024, Johnson J found that the defendant had, by his own admission, breached an injunction order made against him in previous libel proceedings brought against him by Jamal Hijazi, the claimant. The court’s decision to make the committal order arose out of two contempt applications made by the HM Solicitor General further to a request from the claimant.
Background
The underlying libel claim
The claimant was 15 years old when the defendant published two videos on his (the defendant’s) Facebook account which were later found to be defamatory by Nicklin J2 in the underlying libel claim. In these videos, which were viewed by 1 million people, the defendant made various allegations that the claimant was part of a gang, had participated in a violent assault on a young girl which had caused her significant injuries and had threatened to stab another child. The claimant filed a claim for libel with respect to these two videos. The defendant pleaded the defence of truth which subsequently failed.
On 22 July 2021, Nicklin J ordered the defendant to pay £100,000 in damages to the claimant and also granted an injunction.
The injunction
As summarised in the judgment in the current case, Nicklin J’s injunction of 22 July 2021 stated that the defendant must not "whether by himself, his servants, agents or otherwise howsoever publish, or cause or authorise or procure the publication of" specified allegations (which had been the subject of the libel proceedings) or any similar allegations about the claimant. As noted by Johnson J, "a ‘similar’ allegation can be regarded as an allegation that conveys the same defamatory sting".
The defendant did not seek to appeal the injunction.
The breaches
After 18 months of the injunction having been made, the defendant committed a series of 10 breaches of the injunction. He published a film called "Silenced" (the Film) on Mice Media’s website, Youtube and X, as well as at a screening at Trafalgar Square. He also took part in a number of interviews where he repeated allegations captured by the injunction.
The contempt applications
The claimant’s solicitors drew the Attorney General’s attention to these breaches and invited the Attorney General to consider an investigation of the matter in the public interest. This was followed by pre-action correspondence (in which the defendant denied the breaches) and the contempt applications by the Solicitor General with respect to the breaches. The reason for two contempt applications was that after the first application was made, the defendant committed further breaches which then formed the subject matter of the second application.
The defendant’s arrest pursuant to Johnson J’s warrant
Two days before a directions hearing relating to the first application was listed to be heard, the defendant led a march from the Royal Courts of Justice to Trafalgar Square where the Film was screened. He failed to attend the directions hearing which Johnson J proceeded with in his absence and during which the judge ordered a warrant for the arrest of the defendant to secure his attendance at the hearing of the first application. The Solicitor General then made the second application following the incident at Trafalgar Square.
The defendant made a belated application to set aside the warrant for his arrest which was refused by Johnson J. He was arrested on 25 October 2024 for three days and brought to court on 28 October 2024 for the hearing of both contempt applications.
Submissions
Defendant’s submissions
For the first time on the day of the hearing, the defendant admitted the breaches of the injunction on the occasions and in the manner alleged by the Solicitor General. He sought mitigation of any punishment on the grounds that (a) he had previously complied with the injunction for 18 months before the first breach; (b) his motivation for the breaches was to ensure that the public was "informed of what he regarded to be the truth"; and (c) the impact of custodial conditions. He also sought an enhanced reduction for his admission.
Applicant’s submissions
The Solicitor General noted the admissions and said that the defendant’s culpability was of a high level, and that the primary harm caused in this case was to the administration of justice.
Decision
The court dealt with each of the 10 instances of breach in turn and found that they did contain libellous allegations prohibited by the injunction.
The court found strong reasons to infer that the Film was produced after the injunction and as a deliberate breach of the injunction. It found that whilst much of the Film was a "lawful exercise of the defendant’s right to free speech", a significant part of the Film was concerned with seeking to show that Nicklin J was wrong in finding that the statements that the defendant had made about the claimant were false, and the defendant repeated a number of the allegations prohibited by the injunction.
The defendant was found to bear the highest level of culpability for the breach. Not only were the 10 instances found to be flagrant breaches of the injunction but they were also carried out with a degree of sophistication in which the defendant was found to have "performed a leading and orchestrating role".
The court found that the primary harm caused by the breach of the injunction was "the corrosive effect" it has on the administration of justice and ability of the court to deliver justice. The harm was measured by the extensive publication of the defendant’s publications and the messages they conveyed that court orders can and should be breached.
The law on injunctions and sanctions
Johnson J set out the law on the enforcement of injunctions including the imposition of sanctions. It was noted that the law of contempt of court constituted the mechanism for sanctioning a breach of an injunction. The purpose of the sanction is three-fold, i.e. to punish the breach, to encourage belated compliance and to deter future breaches. Johnson J also quoted and relied on HM Attorney General v Crosland 3 in which the Supreme Court summarised the approach to be adopted, i.e. one analogous to that in criminal cases in accordance with the Sentencing Council’s Guidelines.
The sanction imposed
Each breach was found to be so serious that the custody threshold was "amply crossed". The court, therefore, imposed the statutory maximum custodial term for a single occasion of two years’ imprisonment which was reduced by four months for mitigation and a further 1/10th for the admissions resulting in a term of 18 months (minus three days to take account of the time the defendant had already spent in custody).
The court also considered whether the custodial sentence should be suspended but found that the breaches were sufficiently serious to warrant immediate custody and also that the defendant had a history of poor compliance with court orders.
The defendant was also ordered to pay the Solicitor General’s costs of the contempt applications.
The factors considered in imposing the sanction
The court considered the aggravating factors to include previous findings of contempt against the defendant and the fact that some of the breaches in question in this case were committed after the first contempt application had already been instituted.
The court took into account some of the mitigating factors pleaded by the defendant. The court noted the previous compliance with the injunction for 18 months before the first breach. The court also noted that the custodial conditions may be onerous on the defendant not least because of the crowded conditions but particularly because he is well known and his views are known to provoke considerable hostility. The court also took account of evidence on the effect on his mental health due to previous incarceration.
The court noted that the defendant had shown no remorse and so that did not serve as a mitigating factor to be taken into consideration when deciding the custodial term.
The court noted that it would consider a "bargain or mutual understanding" or a dialogue that a lesser sanction would sufficiently ensure a defendant’s compliance with future orders. This was not relevant in the present case because the defendant had shown no inclination to comply with the injunction in the future, and instead "his actions" suggested "that he regards himself as being above the law, and not subject to the same requirement to comply with injunctions of the court as everybody else".
Since there were 10 instances of breach, the court was enjoined by the totality principle which offers guidance in sentencing for more than one offence. To avoid the risk of a disproportionate sanction, the court applied the Sentencing Council’s guidelines with appropriate adjustment to assess a sanction which it considered as just and proportionate.
Finally, the court divided the sanction into punitive and coercive elements to enable the defendant to purge his contempt and seek remittal of the coercive element by demonstrating a commitment to comply with the injunction.
Johnson J noted that the Sentencing Council guidelines do not directly apply to contempt of court cases with respect to reduction for admissions.
Comment
The sanction imposed by the High Court in relation to the defendant’s breach of its order is rare.
The judgment is a helpful reminder of the court’s approach to contempt of court in civil proceedings, particularly in connection with the breach of injunctions. The High Court’s firm view, as emphasised expressly in this case, is that "court injunctions must be obeyed" and that any disagreement can properly only be made known by way of appeal proceedings.
Notably, even with breaches as flagrant as those committed by the defendant, the court found that the harm caused by it was "medium-to-high level" and not at the highest end of the spectrum of contempt of court cases. However, that said, a lengthy custodial sentence was still imposed.
1 HM Solicitor General v Yaxley-Lennon (aka Tommy Robinson) [2024] EWHC 2732 (KB).
2 Hijazi v Yaxley-Lennon [2021] EWHC 2008 (QB).
3 HM Attorney General v Crosland [2021] UKSC 15; [2021] 4 W.L.R. 103.
Written for Entertainment Law Review
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