A leading human rights barrister has won a Court of Appeal bid over his referral for contempt of court during his closing speech in the trial of Palestine Action activists.
Rajiv Menon KC was accused of misleading the jury and ignoring the directions of the trial judge when representing one of the six people who invaded the UK site of Israeli defence firm Elbit Systems at a trial in January.
Mr Justice Johnson, who oversaw the criminal trial, asked the High Court to consider whether Mr Menon’s actions amounted to contempt of court in what are believed to be the first proceedings brought against a barrister in respect of a jury speech.
In March, Lord Justice Edis, sitting as a High Court judge, ruled Mr Menon should be given a summons for a hearing over the allegations of contempt. Mr Menon appealed against this decision, arguing that the High Court did not have the power to consider the case and make these orders.
In a ruling on Tuesday, three Court of Appeal judges ruled in the barrister’s favour and found that Mr Justice Johnson did not have the power to send the contempt allegation to the High Court.
They said that a Crown Court judge cannot refer an alleged contempt such as this directly to the High Court, adding: “The overwhelming weight of authority indicates that no such direct route exists”.
The Court of Appeal judges said Mr Justice Johnson could have referred the alleged contempt to another High Court judge acting as a Crown Court judge “if a summary process was thought to be required”.
The judges concluded Mr Justice Johnson did not have the power to make a direct reference to the High Court, which also would not have had the power to deal with the case without a reference to the Attorney General.
They said the case should now be sent back to Mr Justice Johnson to consider the next steps. The trial judge could now send the case to the Attorney General, Lord Hermer, for consideration.
Jenny Wiltshire, head of serious and general crime at Hickman and Rose who represented Mr Menon, said after the judgment: “Rajiv is delighted that the Court of Appeal has found in his favour and decided that the Filton trial judge did not have the power to refer him directly to the High Court to be prosecuted for contempt of court, and that the High Court did not have the power to accept the reference in the absence of an application by the Attorney General in the public interest.
“Rajiv would like to thank his lawyers and all those who have supported him during this difficult time. He hopes that this is now the end of the matter.
“This unprecedented attempt to criminalise lawyers for doing their job and representing their clients fearlessly should never be repeated.”
During the first trial over the Elbit invasion, Mr Menon highlighted a plaque at the Old Bailey which sets out the “right of juries to give their verdict according to their convictions”, in a move the judge said was in breach of his directions.
The barrister also said on six occasions that the trial judge could not direct the jury to convict the defendants.
Mr Justice Johnson said: “The effect of Mr Menon’s speech was to invite the jury to disregard my directions that they should put views of the Middle East and the war in Gaza, and emotion, to one side.”
He added that Mr Menon is also accused of misleading the jury when he pointed out that the prosecution had not challenged evidence put forward by the defendants about Elbit’s business interests and the Middle East conflict. The jury in that first trial did not convict any of the defendants.
At the end of a retrial in early May, four activists were each found guilty of criminal damage and are due to be sentenced on June 12.
