Imprisonment - Length of sentence

R v Scarth: Court of Appeal, Criminal Division (Lords Justice Pitchford, Wilkie, Mr Justice Holroyde (judgment delivered extempore)): 9 September 2011

In July 2011, the trial of MH was due to commence and the defendant was in attendance. He sat in on a conference between MH and her solicitor advocate and the case was subsequently called on. The defendant sat in the public gallery with a lady who was presumed to be MH's mother. The defendant announced that he was present as a McKenzie friend of MH.

The solicitor advocate said that he was unable to continue acting for MH. MH's mother complained that she could not hear the exchange between the judge and the advocates. The judge asked her to either sit down or to leave. Further discussion took place as to the appointment of fresh representation for MH, which was a matter of interest to the defendant as MH's McKenzie friend. A witness support worker passed the defendant and noticed that he appeared to be using a recording device.

The judge was notified and asked the defendant if he was recording the proceedings. The defendant said that he could not hear very well. The usher told the defendant that the judge wanted to know if the pen he was holding was making a recording. The defendant said that it was to assist with his hearing and that it was related to his hearing aid. The judge asked to see the pen. The defendant began a stream of abuse and shouted, inter alia, that 'this is a bloody den of corruption'.

The defendant appeared to have lost his temper and said that the judge was a corrupt individual. He subsequently turned to a female member of court staff and called her a 'whore'. The police arrived and the defendant was led out of the court in hand restraints. The defendant continued to use foul language and was taken into custody. The judge ordered the transcript of the proceedings during the outburst and said that he would deal with the contempt within the next day or so.

He also made an order that the pen be seized from the defendant and examined. At a subsequent hearing, it came to light that the defendant had withdrawn his instructions from his counsel. The judge suggested that the defendant retain the services of counsel, but the defendant said that he was not going to take part in any trial in a 'kangaroo court'.

The judge said that the defendant would not be prevented from leaving, but that if he did leave, the hearing would continue without him. The defendant left. He was found guilty of two counts of contempt of court in respect of the following matters: (i) the deliberate recording of audio and visual proceedings of court and the subsequent lie as to the purpose of the device and (ii) the public use of distressing language to a female member of court staff.

The defendant was sentenced in total to six months' imprisonment less one day. He appealed against the sentence pursuant to section 13 of the Administration of Justice Act 1960.

The issue to be determined was, inter alia, whether the length of the sentence was excessive. Consideration was given, inter alia, to a letter from a psychiatric nurse with care of the defendant in the community and to the fact that the defendant was 86 years of age. The appeal would be allowed.

It was obvious that the defendant was hard of hearing and that, if MH's mother had not been able to hear the exchange between the judge and the advocates, it would follow that he too would have been unable to hear. It was understandable why the appellant might have been frustrated about not being able to follow the proceedings for, as the McKenzie friend of MH, he had had a legitimate interest in them.

He knew that he was not entitled to record the proceedings either visually or by audio, however there was some mitigation for his outburst. More significant however was the information that had come to the attention of the court in relation to the state of the defendant's health, which had not been available to the sentencing judge.

A letter from the psychiatric nurse who had had care of the defendant in the community had diagnosed the defendant as suffering from a delusional disorder. It also stated that he was a conspiracy theorist who had hearing difficulties and a tendency to shout. In addition, the appellant could be hostile to those he saw as part of the 'system' and this had caused him problems on a number of occasions.

On the day that the nurse had written the letter, she had confirmed that the defendant had phoned the nursing unit in a distressed condition and that accordingly she had had concerns with regard to his mental health. Whilst the defendant had unhappily not helped himself by not taking medication, it was clear that his continued incarceration was having a deleterious effect on his mental health.

The defendant was unusual as the nature of his disorder meant that he was not likely to see the error of his ways. There was no question that the contempts which had occurred were serious and that, in the case of a younger and fitter man, a sentence of six months' imprisonment would have been entirely appropriate.

With the benefit of the background information not available to the sentencing judge however, it was evident that the public interest would not be served by the continued imprisonment of the defendant.

The sentence of six months' imprisonment less one day would be quashed and a sentence of 12 weeks' imprisonment less one day on each finding of contempt would be substituted to be served concurrently, entitling the defendant to immediate release.