73

1 Q.B. Egerton v. Harding (C.A.)

cannot be faulted for attributing it to custom. Binswood Common was
almost certainly manorial waste. Sprat's Cottage could well have been
an ancient enclosure, and the lord of the manor in all probability acted
to protect the commoners, the majority of whom would have been his
copyholders to whose tenure an easement could not be attached. Upon
a balance of probabilities, the judge could reach the conclusion that he
did reach. But it is not necessary, in our judgment, to go so far. Once an
B immemorial usage was established, a lawful origin of the usage was to be
presumed, provided a lawful origin was possible. And, if anything is
certain in this case, it is that the researches of counsel have shown that
there is more than one possible lawful origin for a duty to fence against
the common.
Appeal dismissed with costs.
Leave to appeal refused.
Solicitors: Egerton, Sandler, Summer & Co.; Church, Adams, Tatham
& Co.
L. G. S.

[COURT OF APPEAL]

BALOGH v. ST. ALBANS CROWN COURT

E
1974 June 7, 10, 11; Lord Denning M.R., Stephenson
July 4 and Lawton L J J .
Contempt of Court—Crown Court—Summary jurisdiction—Person
doing acts preparatory to releasing laughing gas into court
during proceedings—Apprehension on theft charge before plan
carried out—Voluntary admission of intention—Summary
F conviction and sentence to imprisonment for contempt—
Whether acts and intention capable of constituting contempt
—Power of judge to commit summarily of own motion—
Circumstances in which exercisable—R.S.C., Ord. 52, rr. 1 (1)
(2)(a)(ii),5*
B, a temporary clerk in a solicitor's office, while attending
a criminal trial at a Crown Court, devised a plan to enliven
G 1
R.S.C., Ord. 52, r. 1: " (1) The power of the High Court or Court of Appeal
to punish for contempt of court may be exercised by an order of committal. (2)
Where contempt of court—(a) is committed in connection with-^(i) any proceedings
before a Divisional Court of the Queen's Bench Division, or (ii) criminal proceed-
ings, except where the contempt is committed in the face of the court or consists
of disobedience to an order of the court or a breach of an undertaking to the court,
or (iii) proceedings in an inferior court, or (6) is committed otherwise than in
connection with any proceedings, then, subject to paragraph (4), an order of com-
H mittal may be made only by a Divisional Court of the Queen's Bench Division.
This paragraph shall not apply in relation to contempt of the Court of Appeal."
r. 5: "Nothing in the foregoing provisions of this Order shall be taken as
affecting the power of the High Court or Court of Appeal to make an order of
committal of its own motion against a person guilty of contempt of court."
74
Balogh v. St. Albans Crown Court (C.A.) [1975]
the proceedings by releasing nitrous oxide ("laughing gas")
down a ventilation duct on the roof into the trial court. He A
stole a cylinder of the gas from a hospital lorry and climbed
up on to the roof at night to locate the particular inlet duct:
The next morning he left the cylinder in his brief case in the
public gallery of the court next door (Court 1) from which
there was access to the roof, intending to carry out his plan
later in the day. Police, who had seen him on the roof,
found his brief case, opened it, and later cautioned B who at
once admitted what he had done and planned to do. He was B
charged with theft of the cylinder. The police reported the
matter to Melford Stevenson J., the senior judge, who was
presiding in Court 1. B was brought before the judge who said
that B's admitted conduct was a serious contempt of oourt and
that he would consider the penalty overnight, B to be kept in
custody.
The next morning B told the judge that he did not feel
competent to conduct his own case on contempt and that he C
understood that the only charge against him was theft. The
judge said that he would not deal with that charge, but com-
mitted B to six months' imprisonment for contempt of court.
On appeal: —
Held, allowing the appeal and setting aside the sentence,
(1) that B was not guilty of criminal contempt of court,
since his admitted conduct, though preparatory to carrying _u
out an intention and a plan which, if completed, might have
been a serious contempt in the face of the court, had not
become an attempt to commit the offence at the time when
he was taken into custody, and a fortiori could not amount
to contempt.
(2) That the judge, as a judge of a superior court of record,
had jurisdiction to make an immediate order of committal of
his own motion against a person guilty of contempt of court; p
but even if B's admitted acts and intention had amounted to
a contempt of court, the judge should not have punished him
as he did by the summary procedure available for contempt,
for that procedure should be used only in exceptional cases
where a contempt was clearly proved and could not wait to
be punished; and where a person was already in custody and
charged with theft there was no need for immediate imprison-
ment. • •' • _,
Per curiam. The ancient power of the superior courts of
record, now including the Crown Courts, to commit a con-
temnor to prison of their own motion Without charge or trial
is necessary to protect the due administration of justice. It
is preserved in R.S.C., Ord. 52, r. 5. The power is not limited
to punishing for contempt " in the face of the court" or what
the judge himself sees and knows, but extends to punishing
for any interference with the administration of justice in public p
which is proved beyond reasonable doubt to be a contempt "
and which affects or is calculated to affect the course or out-
come of a trial in progress or about to start. But because it
is arbitrary, contrary to natural justice, and far removed from
the ordinary processes of the law, it is to be exercised with
scrupulous care and only when it is imperative for the court
to act immediately; and it must never be invoked unless
nothing else will do to protect the ends of justice and ensure „
that a trial in progress or about to start can be brought to a **
proper and dignified end.
Per Lord Denning M.R. Contempt "in the face of the
court" is the same as contempt which the court can punish
 75
1 Q.B. Balogh v. St Albans Crown Court (C.A.)
" of its own motion." It means contempt in the cognisance
A of the court (post, p. 84B).
Per Stephenson L.J. The limits of the power of a superior
court to imprison a contemnor are not defined or restricted
by the Rules of the Supreme Court which regulate its exercise
(post, p. 89E-F).
Order of Melford Stevenson J. set aside.

P The following cases are referred to in the judgments:

Attorney-General v. Times Newspapers Ltd. [1973] Q.B. 710; [1973]
2 W.L.R. 452; [1973] 1 All E.R. 815, C.A.; [1974] A.C. 273; [1973]
3 WI.R. 298; [1973] 3 All E.R. 54, H.L.(E.).
Clements, In re, Republic of Costa Rica v. Erlanger (1877) 46 LJ.Ch.
375, C.A.
Fernandez, Ex parte (1861) 10 C.B.N.S. 3.
c Johnson, In re (1887) 20 Q.B.D. 68, C.A.
Lecointe V. Courts Administrator of the Central Criminal Court, Feb-
ruary 8, 1973; Bar Library Transcript No. 57A of 1973, C.A.
McKeown v. The Queen (1971) 16 D.L.R. (3d) 390.
Moore v. Clerk of Assize, Bristol [1971] 1 W.L.R. 1669; [1972] 1 All
E.R. 58, C.A.
Morris v. Crown Office [1970] 2 Q.B. 114; [1970] 2 W.L.R. 792; [1970]
_ 1 All E.R. 1079, C.A.
U
Reg. v. Gray [ 1900] 2 Q.B. 36, D.C.
Reg. v. Smith (Roger) [1974] 2 W.L.R. 1; [1973] 3 All E.R. 1109,
H.L.(E.).
Rex v. Almon (1765) Wilm. 243.
Rex v. Tibbits [1902] 1 K.B. 77.
Warwick Corporation v. Russell [1964] 1 W.L.R. 613; [1964] 2 All
E.R. 337.
E
The following additional cases were cited in argument:
Attorney-General v. James [1962] 2 Q.B. 637; [1962] 2 W.L.R. 740;
[1962] 1 All E.R. 255, D.C.
Izuora v. The Queen [1953] A.C. 327; [1953] 2 W.L.R. 700; [1953]
1 All E.R. 827, P.C.
p Reg. v. Hargreaves, Ex parte Dill, The Times, November 4, 1953, D.C.
* Rex v. Davies [1906] 1 K.B. 32, D.C.

APPEAL from Melford Stevenson J. at St. Albans Crown Court.

The appellant, Stephen Bernard Balogh, appealed from the order of
Melford Stevenson J. at St. Albans Crown Court on May 22, 1974,
whereby it was adjudged that he was guilty of a contempt of court and was
G sentenced to six months' imprisonment therefor, and for an order that he be
released from custody arid that the order be set aside and the sentence of
imprisonment set aside or varied.
The grounds of appeal were (1) that the facts as found by the judge did
not in law constitute a contempt of court; (2) that the facts as alleged
against the appellant and admitted by him did not constitute a contempt in
JJ the face of the court and that the judge had no jurisdiction to determine
the matter summarily; alternatively, that he ought not in the circumstances
to have determined it summarily; (3) that the proceedings were contrary to
natural justice in that the appellant (i) was not given any proper notice of
76
Balogh v. St Albans Crown Court (C.A.) [1975]
the nature of the contempt alleged against him, and/or (ii) was denied the .
opportunity of seeking legal representation, and /or (iii) was not afforded
reasonable opportunity to prepare his case, having, inter alia, denied that he
was in contempt; (4) that he was afforded no opportunity to apologise to
the court for his alleged contempt; and (5) that in the circumstances the
sentence of six months' imprisonment was excessive.
The hearing of the appeal was expedited and the court allowed the
appeal on June 11 stating that they would give their reasons later. B

John Vinelott Q.C. and Michael Kennedy for the Official Solicitor on
behalf of the appellant. The original summary jurisdiction in the
High Cburt and of judges of Assize on contempt was unlimited; but in
practice it was limited to contempt " in the face of the court," a phrase the
scope of which this court may have to consider on this appeal. The Q
practical limitation is now made binding by R.S.C., Ord. 52, r. 1 (2) (a) (ii),
which provides that when a High Court judge is sitting in criminal pro-
ceedings the Divisional Court alone can deal with a contempt unless it is
" in the face of the court" or disobedience to an order. That undoubtedly
restricts the exercise of the jurisdiction in criminal matters though it may
be academic only, since the cases in which it would arise will be rare, and
all civil courts have jurisdiction to commit for contempt, whether or not D
it is in the face of the court. [Reference was made to Morris v. Crown
Office [1970] 2 Q.B. 114.J Until the present R.S.C., Ord. 52 came into
operation in 1970 the power to commit immediately for contempt was the
same in criminal as in civil proceedings: see the previous R.S.C., Ord. 44,
r. 2; but the present r. 1 (2) (a) (ii) clearly makes the distinction, and now
applies to the jurisdiction of the Crown Court in any matter of contempt g
conferred by section 4 (8) of the Courts Act 1971. Ord. 52, r. 5, which
preserves the power of a superior court to commit " of its own motion,"
that is, for contempt in the face of the court, is. not affected by the res-
triction in " criminal proceedings" under r. 1.
A considerable body of authority supports the view that the power of
the court to commit for contempt by summary procedure should be
jealously watched: see per Sir George Jessel M.R. in In re Clements (1877) F
46 L.J.Ch. 375, 383, that it should be exercised only in rare cases where
there is no other remedy to preserve the dignity of the court and protect
the public. The reason is that it is an inherently despotic and arbitrary
power in which the judge often acts as prosecutor, witness, jury and judge.
Three questions arise on the appeal: (1) Was what the appellant did a
contempt at all? It is conceded that if his plan had progressed to the stage G
of a discernible attempt patent to the officers of the court or the judge, there
would have been a contempt in the face of the court and the judge could
have done what he liked. But where there was merely a plan and pre-
paration and no overt act which brought to the knowledge of the judge or
the officers of the court the fact that something was to be attempted which
might interrupt the proceedings, was it a situation in which the judge „
should have brought into operation the heavy summary power to deal
with it?
(2) As to whether, if it could be said to be a contempt of court, it was
 77
1 Q.B. Balogh v. St. Albans Crown Court (C.A.)
. done " in the face of the court," see Izuora v. The Queen [1953] A.C. 327,
334, per Lord Tucker on what constitutes a criminal as opposed to a civil
contempt, the former being " any act done . . . calculated to bring a court
or a judge . . . into contempt or to lower his authority." See also
McKeown V. The Queen (1971) 16 D.L.R. (3d) 390, where the majority
view was that there had been a contempt in the face of the court; but the
minority view, expressed by Laskin J. at pp. 398-413, defined it as some-
B thing within the knowledge of the judge or his officials and pointed out the
dangers of the summary jurisdiction and that it should be used only when
a matter was so urgent that there was no time to get more information.
The concept of contempt " in the face of the court" was never a relevant
distinction save in relation to the inferior courts; and in the most important
category of inferior courts, the county courts, the limits were precisely
defined by statute: see section 157 of the County Courts Act 1959.
[Reference was also made to Bowie and Lowe, The Law of Contempt
(1973), p. 254.] The evidence here does not amount even to an attempt,
let alone a contempt. If the appellant had been given an opportunity to
defend himself or get legal representation he might have been able to submit
that the concentration of gas which he had planned to put into the system
was so weak that it could not have interfered with the proceedings at all.
D Contempt being a criminal offence, it has to be proved beyond reasonable
doubt. That degree of cogency is not satisfied on the evidence. There is
also the further point, which the appellant himself raised before the judge,
on whether a person can be committed summarily for contempt in the face
of one court when the mischief was intended to be carried out in another
court—though it is conceded that nothing in R.S.C., Ord. 52 prevents one
judge from committing for contempt of another.
(3) If the admitted conduct was a contempt and the judge had jurisdiction
to deal with it, was it a case in which he had to act summarily, or ought
he not rather to have left it to be dealt with under the ordinary criminal law,
for the appellant was already in custody charged with theft? The question
is whether, faced with a situation which had caused no interruption to the
court's business nor affronted its dignity nor interfered with witnesses nor
F affected the proceedings in that or any other court, it was right for the judge
to invoke a despotic jurisdiction when other means of process were
available.
If those matters of law and procedure are not well founded the court
may be able to determine the appeal shortly by considering whether
a six-month sentence without a remand or any proper opportunity to
Q apologise or obtain legal representation was not too heavy a sentence, and
dispose of the matter by taking into account all the circumstances, including
the appellant's present genuine contrition, and reducing or setting aside the
sentence.
[The court indicated that the appeal should be heard and determined
fully.]
TT Gordon Slynn as amicus curiae. It is no part of the function of an
amicus curiae to say anything on the sentence, and this court can give full
weight to the apology and explanation offered.
On the issues of law, there has for a very long time been fixed in a
78
Balogh v. St. Albans Crown Court (C.A.) [1975]
judge of the High Court the power to deal summarily with contempts
whether committed in the face of the court or otherwise. Though Oswald's
Contempt of Court, 3rd ed. (1910), pp. 2, 6, 8, expresses doubts whether
the summary power has existed from earliest times, Rex v. Almon (1765)
Wilm. 243, made it plain that the summary power was not confined to what
had happened " in the face of the court."
R.S.C., Ord. 52, r. 5, appears to preserve that power in the judge of
the High Court and now in the Crown Court or judge of Assize. If Ord. 52 B
does not apply to a High Court judge in criminal proceedings this court
may have to consider whether r. 1 (1) and (2) do restrict the former powers
or whether they do no more than regulate procedure. But even without
r. 5 the inherent power of the court to act summarily of its own motion is
not taken away. In Moore v. Clerk of Assize, Bristol [1971 ] 1 W.L.R. 1669,
it was assumed that the judge had a personal power to commit for con- ^
tempt of his own motion, even though he was dealing with a criminal
matter. No one challenged his assumption of jurisdiction and R.S.C.,
Ord. 52 was not referred to. In Lecointe v. Court's Administrator of the
Central Criminal Court (February 8, 1973, unreported; Bar Library Tran-
script No. 57A) after the Courts Act 197il was in force the judge took
summary action against a contemnor although neither he nor the clerk to
the court saw leaflets being handed round; and an appeal from his order D
was dismissed. No point was taken on R.S.C., Ord. 52.
If a judge had to see the contempt with his own eyes it would exclude
many cases which have been treated as contempt in the face of the court.
The phrase has never been satisfactorily defined. It may be that it covers
all classes of case where the administration of justice in court is being
interfered with. Even if a contempt is committed at a distance from the j ,
court it may be dealt with by issuing an order of attachment forthwith.
R.S.C., Ord. 52, rr. 1 and 2, lays down procedure and draws a distinction
between cases where the Attorney-General seeks an order or an individual
applies on motion; and when the criminal process is invoked it may be
done on an information or by indictment, though procedure by indict-
ment has not been used for many years. [Reference was made to
Reg. v. Hargreaves, Ex parte Dill, The Times, November 4, 1953 and F
Attorney-General v. Times Newspapers Ltd. [1974] A.C. 273, 293.]
Though the distinction between attachment and committal has gone, the
court still has power to deal with all contempts: see Borrie and Lowe,
p. 257 et seq. and Holdsworth, A History of English Law, vol. Ill (1903),
pp. 391, 394 which is adopted. Rule 5 of Ord. 52 makes plain the power
of the court to act " of its own motion " where something is done and the Q
contemnor must be dealt with immediately. It preserves the inherent
power of the court
If there was a contempt in the present case it was at least in part
committed in the court of the judge who made the order; and whatever
took place, took place in the court building and Melford Stevenson J.
was the senior judge presiding. In In re Johnson (1887) 20 Q.B.D. 68, the „
contempt in the face of the court would not have meant in the judge's
presence: see per Lord Esher M.R. and Bowen L.J. at pp. 71 and 73, on
insults to the administration of justice and the protection of those who have
 79
1 Q.B. Balogh v. St Albans Crown Court (C.A.)
duties in courts of justice. [Reference was also made to Reg. v. Gray
A
[1900] 2 Q.B. 36.]
The former R.S.C., Ord. 44, r. 2 (2), in use between 1963 and 1966,
used the words " in the face of the court": see the historical note in the
Annual Practice 1963, pp. 1072-1078.
As to the acts done being merely preparatory so as not to amount to
an attempt in criminal law, the courts have always stressed that contempt
B is sui generis and not subject to the same principles as the criminal law.
The concept of attempt should not be introduced into this branch of the
law. On the authorities (1) it is not necessary for the intended act to be
completed in order to constitute a contempt; (2) not all preparatory acts
will amount to a contempt; and (3) in each case the question is whether,
looking at all the circumstances, what is done is in itself something which
Q, cannot be allowed if the administration of justice is to be carried on
properly. [Reference was made to Morris y. Crown Office [1970] 2 Q.B.
114, and Attorney-General v. Times Newspapers Ltd. [1974] A.C. 273, 293,
307.] One of the relevant matters is the intention of the person doing the
acts. Though it has been said that the intention was not completed, it is
comparable with the 17th century case where the intended blow narrowly
missed the judge; but the offender was very harshly punished. In this
D case the means to commit the contempt had been acquired with the in-
tention of carrying it out. [Reference, was made to Archbold, Criminal
Pleading, Evidence & Practice, 38th ed. (1973), pp. 1549-50, paras. 4104,
4105, 4111, on steps in an offence.]
[LAWTON L.J. On criminal law principles the acquisition of the means
and the intention would not be sufficient: see Reg. v. Smith (Roger) [1974]
E 2 W.L.R. 1.]
It is a question of degree in each case. No regard should be paid to
the point that what was planned would have had no effect because the
concentration of gas would have been too weak, for that is negatived
by the intention. Nor should regard be had to the point that the court in
which the order of committal was made was not the court in which the
appellant had intended to carry out his plan. There is no reason why one
F judge should not commit for contempt of another if for spme reason the
judge affected cannot do so. The statements in Oswald's Contempt of
Court, 3rd ed., at pp. 15 and 17, are too wide.
As to the appellant hot being given a proper chance to apologise or
deal with the case of contempt against him or to obtain legal representation,
the transcript shows that he was given those opportunities. He was told
G that the charge was contempt on the first occasion before the judge and
could have obtained legal representation overnight. Legal representation
is entirely a matter for the court, and in view of the emphasis on the
instantaneous nature of the process there can be no general rule that legal
representation should be arranged. There is no reason why a judge should
invite a contemnor to apologise; that would defeat the whole purpose of
„ committal. If there had been an apology no doubt the judge would have
accepted it.
The test whether in law there was a contempt of court is whether the
judge was satisfied that there had been a sufficient collection of overt acts
80
Balogh v. St. Albans Crown Court (C.A.) [1975]
to constitute something " calculated " to interfere with the course of justice. .
Though issues of law have emerged which have proved highly arguable in
this court, and could have been raised before the judge, any judge and any
member of the public at the time of the acts might have had no doubt at
all that there was a contempt. The law of contempt does not divide an act
into attempt and substantive crime as the criminal law does. It is in each
case a question of fact and degree whether what was done was calculated
to interfere with the administration of justice. B
Though in the past the court which imposed a fixed-term sentence had
no jurisdiction to interfere with the sentence (Attorney-General v. James
[1962] 2 Q.B. 637) it is now possible under R.S.C.. Ord. 52, r. 8, for the
person committed to go back to the judge; and there is also the right under
section 13 of the Administration of Justice Act 1960 to come to this court
which can take due account of any apology and all other circumstances.
The acts done in the present case point to only one conclusion: sufficient ^
steps had been taken to entitle the judge to find a contempt. The court
should not weaken the concept of contempt but should look at the facts
as a whole and ask: Do they reduce the status of the court?
Vinelott Q.C. in reply. As to whether the jurisdiction in contempt has
been restricted by R.S.C., Ord. 52, r. 1 (2) (a) (ii), though a rule cannot
reduce the inherent jurisdiction, the rules can prescribe how it is to be D
exercised, and if they say: " This jurisdiction to commit is not to be exer-
cised save on application unless it is a contempt in the face of the
court" that does no more than put a procedural hurdle in the way. In
any event the proceedings which can be described as " criminal" in the
High Court are residual vestiges only. Rule 5 covers the case where the
contemnor is in some way amenable to the jurisdiction of the particular
court which has caught him and can deal with him immediately. If it was ^
intended to widen the summary power of the court to commit " of its own
motion " to cases beyond those " in the face of the court" it would render
rr. 1 and 2 nugatory.
In seeking to elucidate the puzzles which have arisen over R.S.C.,
Ord. 52, r. 1 (2) (a) (ii), with the exception in " criminal proceedings," and
the scope of r. 5, help may be derived from the preceding form of the rule, p
R.S.C., Ord. 44, r. 2 (2), and the notes to Ord. 59, r. 26, in operation from
1965 to 1970 which give the historical sequence: (1) Before 1965 committal
and attachment were separate. (2) The procedure for exercising the power
of the Queen's Bench to attach or commit was restricted by Ord. 59, r. 26,
by giving it to the Divisional Court: see Annual Practice 1960, notes.
(3) Proceedings for contempt of court " in facie curiae " or consisting of
disobedience to an order were excepted by Ord. 59, r. 26 (2) (b). (4) In G
1965 attachment and committal were made co-extensive and R.S.C., Ord.
44, r. 2, dealt with that; but by r. 2 (2) that was not to affect the power of
the High Court or the Court of Appeal " to make an immediate order of
committal against a person guilty of contempt in the face of the court."
There was thus a gradual process by which the power to make an imme-
diate order was limited to contempt in the face of the court, and in 1970 JJ
all the matters were amalgamated into one rule, R.S.C., Ord. 52. Rule 5
of that order should be read naturally to make the power of the court to
commit " of its own motion " co-extensive with " in the face of the court."
 81
1 Q.B. Balogh v. St. Albans Crown Court (C.A.)
The two phrases should be interpreted together, for one may throw light
on the other.
In considering in what circumstances the court can act of its own
motion two conditions should be satisfied: (1) the offence must be shown
beyond reasonable doubt; (2) it must be necessary in the interests of justice
and public protection that the court shall act speedily because delay might
defeat the purpose of the summary proceedings. The offence may be
B shown beyond reasonable doubt where it took place in court or there is
irrefragable evidence which carries conviction. The reasons for so limiting
the summary power are that it is arbitrary and offends the tenets of natural
justice, not only because the judge plays so many roles but also because,
in a matter concerning the liberty of the subject, the case may proceed
without any formulation in writing of any distinct charge or giving the
accused an opportunity to seek legal advice or representation. The prac-
^ tice also seems to contravene the European Convention on Human Rights
1950, article 6 (3) (b): see Borrie and Lowe, p. 376.
Slynn. It is improper to seek to ascertain the powers of a High Court
judge to commit for contempt by looking to see what were the powers
under earlier Rules of the Supreme Court. What has to be ascertained is
what at common law were the powers of a High Court judge to commit
D for contempt. Those powers were wider than any meaning of " in the face
of the court" or " of its own motion." The rules can only say that the
exercise of the jurisdiction shall accord with them.
Cur. adv. vult.

July 4. The following judgments were read.

E
LORD DENNING M.R. There is a new Court House at St. Albans. It
is air-conditioned. In May of this year the Crown Court was sitting there.
A case was being tried about pornographic films and books. Stephen
Balogh was there each day. He was a casual hand employed by solicitors
for the defence, just as a clerk at £5 a day, knowing no law. The case
p dragged on and on. He got exceedingly bored. He made a plan to liven
it up. He knew something about a gas called nitrous oxide (N20). It gives
an exhilarating effect when inhaled. It is called " laughing gas." He had
learned all about it at Oxford. During the trial he took a half cylinder
of it from the hospital car park. He carried it about with him in his brief
case. His plan was to put the cylinder at the inlet to the ventilating system
and to release the gas into the court. It Would emerge from the outlets
G which were just in front of counsel's row. So the gas, he thought, would
enliven their speeches. It would be diverting for the others. A relief from
the tedium of pornography. So one night when it was dark he got on to
the roof of the court house. He did it by going up from the public gallery.
He found the ventilating ducts and decided where to put the cylinder.
Next morning, soon after the court sat, at 11.15, he took his brief case, with
TT the cylinder in it, into court no. 1. That was not the pornography court.
It was the next door court. It was the only court which had a door leading
up to the roof. He put the brief case on a seat at the back of the public
gallery. Then he left for a little while. He was waiting for a moment
82
Lord Denning M.R. Balogb v. St Albans Crown Court (C.A.) [1975]
when he could slip up to the roof without anyone seeing him. But the
moment never came. He had been seen on the night before. The officers
of the court had watched him go up to the roof. So in the morning they
kept an eye on him. They saw him put down his brief case. When he
left for a moment, they took it up. They were careful. There might be a
bomb in it. They opened it. They took out the cylinder. They examined
it and found out what it was. They got hold of Balogh. They cautioned
him. He told them frankly just what he had done. They charged him g
with stealing a bottie of nitrous oxide. He admitted it. They kept him in
custody and reported the matter to Melford Stevenson J. who was pre-
siding in court no. 1 (not the pornography court). At the end of the day's
hearing, at 4.15 p.m., the judge had Balogh brought before him. The police
inspector gave evidence. Balogh admitted it was all true. He meant it as
a joke. A practical joke. But the judge thought differently. He was not
amused. To him it was no laughing matter. It was a very serious contempt ^
of court. Balogh said:
" I am actually in the wrong court at the moment. . . . The proceedings
which I intended to subvert are next door. Therefore, it is not con-
tempt against your court for which I should be tried."
The judge replied: D
"You were obviously intending at least to disturb the proceedings
going on in courts in this building, of which this is one . . . You will
remain in custody tonight and I will consider what penalty I impose
on you . . . in the morning."
Next morning Balogh was brought again before the judge. The ^
inspector gave evidence of his background. Balogh was asked if he had
anything to say. He said:
" I do not feel competent to conduct it myself. I am not represented
in court. I have committed no contempt. I was arrested for the theft
of the bottle. No further charges have been preferred."
The judge gave sentence: F
" It is difficult to imagine a more serious contempt of court and the
consequences might have been very grave if you had carried out your
express intention. I am not going to overlook this and you will go
to prison for six months . . . I am not dealing with any charge for
theft . . . I am exercising the jurisdiction to deal with the contempt
of court which has been vested in this court for hundreds of years.
That is the basis on which you will now go to prison for six months." G
Balogh made an uncouth insult: " You are a humourless automaton. Why
don't you self-destruct?" He was taken away to serve his sentence.
Eleven days later he wrote from prison to the Official Solicitor. In it
he acknowledged that his behaviour had been contemptible, and that he
was now thoroughly humbled. He asked to be allowed to apologise in the JJ
hope that his contempt would be purged. The Official Solicitor arranged
at once for counsel to be instructed, with the result that the appeal has
come to this court.
 83
1 Q.B. Balogh v. St. Albans Crown Court (C.A.) Lord Denning M.R.
The first point is whether the judge had any jurisdiction to commit
A
Balogh summarily for contempt. The judge was sitting in the new Crown
Court. It was suggested that this court has not the wide jurisdiction which
was previously exercised by the judges of Assize, but only a narrower
jurisdiction controlled by the Rules of the Supreme Court.
The jurisdiction of the Crown Court
'" The Crown Court is a superior court of record: section 4 (1) of the
Courts Act 1971. In regard to any contempt of court, it has the like powers
and authority as the High Court: section 4 (8). The High Court has the
same powers and authority as the superior courts used to have, and as the
judges of Assize had: see section 18 of the Supreme Court of Judicature
(Consolidation) Act 1925. The procedure is, however, governed by R.S.C.,
•Q Ord. 52. Mr. Vinelott, for Mr. Balogh, submitted that under those rules
this contempt of court (if it were one) could only be punished by applica-
tion to the Divisional Court of the Queen's Bench; and that the judge here
had no jurisdiction to punish it himself. The judge, he said, had only power
to commit for contempt " committed in the face of the court ": see Ord.
52, r. 1 (2) (a) (ii). That expression, he said, was confined to cases where
" all the circumstances of the alleged contempt are in the personal know-
D
ledge of the court": see McKeown v. The Queen (1971) 16 D.L.R. (3d)
390, 408 by Laskin J., and Borrie and Lowe, The Law of Contempt,
(1973), p. 7. The judge in this case had no personal knowledge of the
circumstances. He only knew what was reported to him. So Mr. Vinelott
said that the contempt was not committed " in the face of the court."
Mr. Slynn submitted that the answer to this point was to be found in
E Ord. 52, r. 5. It preserves the power of the High Court "to make an
order of committal of its own motion against a person guilty of contempt
of court." That is a good answer, so far as it goes; but it leaves open the
question: In what circumstances can the High Court make an order "of
its own motion?" In the ordinary way the High Court does not act of its
own motion. An application to commit for contempt is usually made by
motion either by the Attorney-General or by the party aggrieved: see
F Reg. v. Gray [1900] 2 Q.B. 36; Attorney-General v. Times Newspapers
Ltd. [1973] Q.B. 710, 737 in this court by me as corrected in the House
of Lords [1974] A.C. 273, at p. 294 by Lord Reid, at p. 310 by Lord
Diplock, and at p. 324 by Lord Cross of Chelsea: and such a motion can,
in an urgent case, be made ex parte: see Warwick Corporation v.- Russell
[1964] 1 W.L.R. 613. All the cases cited in the notes to Ord. 52, r. 5,
Q are of motions by some one ex parte. None of them tells us when the
High Court can make an order of its own motion. All I find in the books
is that the court can act upon its own motion when the contempt is com-
mitted " in the face of the court." Wilmot C.J. in his celebrated opinion
in Rex v. Almon (1765) Wilm. 243, 254 said: " It is a necessary incident
to every court of justice to fine and imprison for a contempt to the court,
acted in the face of it." Blackstone in his Commentaries, 16th ed. (1825),
Book IV, p. 286, said: " If the contempt be committed in the face of the
court, the offender may be instantly apprehended and imprisoned, at the
discretion of the judges." In Oswald on Contempt, 3rd ed. (1910), p. 23
84
Lord Denning M.R. Balogh v. St. Albans Crown Court (C.A.) [1975]
it is said: " Upon contempt in the face of the court an order for committal
was made instanter" and not on motion. But I find nothing to tell us A
what is meant by " committed in the face of the court." It has never been
defined. Its meaning is, I think, to be ascertained from the practice of the
judges over the centuries. It was never confined to conduct which a judge
saw with his own eyes. It covered all contempts for which a judge of his
own motion could punish a man on the spot. So " contempt in the face
of the court" is the same thing as " contempt which the court can punish JJ
of its own motion." It really means " contempt in the cognisance of the
court."
Gathering together the experience of the past, then, whatever expression
is used, a judge of one of the superior courts or a judge of Assize could
always punish summarily of his own motion for contempt of court when-
ever there was a gross interference with the course of justice in a case
that was being tried, or about to be tried, or just over—no matter whether ^
the judge saw it with his own eyes or it was reported to him by the officers
of the court, or by others—whenever it was urgent and imperative to act
at once. This power has been inherited by the judges of the High Court
and in turn by the judges of the Crown Court. To show the extent of it,
I will give some instances:
(i) In the sight of the court. There are many cases where a man has D
been committed to prison at once for throwing a missile at the judge, be
it a brickbat, an egg, or a tomato. Recently, too, when a group of students
broke up the trial of a libel action Lawton J. very properly sent them at
once to prison: see Morris v. Crown Office [1970] 2 Q.B. 114. There
is an older case, too, of great authority, where a witness refused to answer
a proper question. The judge of Assize at York Castle at once sentenced
him to prison for six months and imposed a fine of £500: see Ex parte
Fernandez (1861) 10 C.B.N.S. 3.
(ii) Within the court room but not seen by the judge. At the Old
Bailey a man distributed leaflets in the public gallery inciting people to
picket the place. A member of the public reported it to a police officer,
who reported it to the judge. The offender denied it. Melford Stevenson J.
immediately heard the evidence on both sides. He convicted the offender F
and sentenced him to seven days' imprisonment. The man appealed to this
court. His appeal was dismissed: Lecointe v. Court's Administrator of the
Central Criminal Court, February 8, 1973; Bar Library Transcript No. 57A
of 1973.
(iii) At some distance from the court. At Bristol 22 men were being
tried for an affray. The first witness for the prosecution was a school Q
girl. After she had given her evidence, she went to a caf6 for a meal.
A man clenched his fist at her and threatened her. She told the police,
who told the judge. Park J. had the man arrested. He asked counsel to
represent him. He broke off the trial. He heard evidence of the threat.
He committed the man. He sentenced him to three months' imprisonment.
The man appealed to this court. His appeal was dismissed: Moore v.
Clerk of Assize, Bristol [1971] 1 W.L.R. 1669. Another case was where
a man was summoned to serve on a jury. His employer threatened to
dismiss him if he obeyed the summons. Melford Stevenson J. said it was
 85
1 Q.B. Balogh v.St. Albans Crown Court (C.A.) Lord Denning M.R.
a contempt of court which made him liable to immediate imprisonment:
A
see " The Rule of Law and Jury Service " (1966) 130 J.P. 622.
Those are modern instances. I have no doubt that there were many
like instances in the past which were never reported, because there was
until recently no right of appeal. They bear out the power which I have
already stated—a power which has been inherited by the judges of the
Crown Court.
B This power of summary punishment is a great power, but it is a neces-
sary power. It is given so as to maintain the dignity and authority of the
court and to ensure a fair trial. It is to be exercised by the judge of his
own motion only when it is urgent and imperative to act immediately—
so as to maintain the authority of the court—to prevent disorder—to
enable witnesses to be free from fear—and jurors from being improperly
c influenced—and the like. It is, of course, to be exercised with scrupulous
care, and only when the case is clear and beyond reasonable doubt: see
Reg. v. Gray [1900] 2 Q.B. 36, 41 by Lord Russell of Killowen C.J.
But properly exercised it is a power of the utmost value and importance
which should not be curtailed.
Over 100 years ago Erie C.J. said that " . . . these powers, . . . as far
as my experience goes, have always been exercised for the advancement
D of justice and the good of the public ": see Ex parte Fernandez (1861) 10
C.B.N.S. 3, 38. I would say the same today. From time to time anxieties
have been expressed lest these powers might be abused. But these have
been set at rest by section 13 of the Administration of Justice Act 1960,
which gives a right to appeal to a higher court.
As I have said, a judge should act of his own motion only when it is
c urgent and imperative to act immediately. In all other cases he should
not take it upon himself to move. He should leave it to the Attorney-
General or to the party aggrieved to make a motion in accordance with
the rules in R.S.C., Ord. 52. The reason is so that he should not appear
to be both prosecutor and judge: for that is a role which does not become
him well.
Returning to the present case, it seems to me that up to a point the
F judge was absolutely right to act of his own motion. The intention of Mr.
Balogh was to disrupt the proceedings in a trial then taking place. His
conduct was reported to the senior judge then in the court building. It was
very proper for him to take immediate action, and to have Mr. Balogh
brought before him. But once he was there, it was not a case for summary
punishment. There was not sufficient urgency to warrant it. Nor was it
Q imperative. He was already in custody on a charge of stealing. The judge
would have done well to have remanded him in custody and invited
counsel to represent him. If he had done so counsel would, I expect,
have taken the point to which I now turn.

The conduct of Mr. Balogh

a Contempt of court is a criminal offence which is governed by the
principles applicable to criminal offences generally. In particular, by the
difference between an attempt to commit an offence and an act preparatory
to it.
86
Lord Denning M.R. Balogh v. St. Albans Crown Court (C.A.) [1975]
" It has often been said that to constitute an attempt the act must be
proximate to and not remote from the crime itself. . . . It must be -
left to common sense to determine in each case whether the accused
has gone beyond mere preparation ": see Reg. v. Smith {Roger) [1974]
2 W.L.R. 1, 13 by Lord Reid.
When this case was opened, it occurred to each one of us: Was Mr.
Balogh guilty of the offence of contempt of court? He was undoubtedly
guilty of stealing the cylinder of gas, but was he guilty of contempt of
court? No proceedings were disturbed. No trial was upset. Nothing
untoward took place. No gas was released. A lot more had to be done
by Mr. Balogh. He had to get his brief case. He had to go up to the
roof. He had to place the cylinder in position. He had to open the valve.
Even if he had done all this, it is very doubtful whether it would have had
any effect at all. The gas would have been so diluted by air that it would C
not have been noticeable. In these circumstances the question at once
springs to mind: Had he gone so far as to be guilty of an attempt? Were
not his acts merely preparatory acts falling short of an attempt? Suppose
a man steals a car and drives up to a house intending to break into it, but
the police arrive before he gets anywhere near the door—even before he
gets out of the car. Clearly he is guilty of stealing the car. But he is not ^
guilty of attempting to break into the house. He had the criminal intent
to break in, but that is not enough. So here Mr. Balogh had the criminal
intent to disrupt the court, but that is not enough. He was guilty of
stealing the cylinder, but no more.
On this short ground we think the judge was in error. We have already
allowed the appeal on this ground. But, even if there had not been this
ground, I should have thought that the sentence of six months was exces- ^
sive. Balogh spent 14 days in prison: and he has now apologised. That
is enough to purge his contempt, if contempt it was.

Conclusion
There is a lesson to be learned from the recent cases on this subject.
It is particularly appropriate at the present time. The new Crown Courts F
are in being. The judges of them have not yet acquired the prestige of
the Red Judge when he went on Assize. His robes and bearing made
everyone alike stand in awe of him. Rarely did he need to exercise his
great power of summary punishment. Yet there is just as much need for
the Crown Court to maintain its dignity and authority. The judges of it
should not hesitate to exercise the authority they inherit from the past. G
Insults are best treated with disdain—save when they are gross and
scandalous. Refusal to answer with admonishment—save where it is vital
to know the answer. But disruption of the court or threats to witnesses or
to jurors should be visited with immediate arrest. Then a remand in
custody and, if it can be arranged, representation by counsel. If it comes
to a sentence, let it be such as the offence deserves—with the comforting „
reflection- that,: if it is in error, there is an appeal to this court. We always
hear these appeals within a day or two. The present case is a good
instance. The judge acted with a firmness which became him. As it
 87
1 Q.B. Balogh T. St. Albans Crown Court (C.A.) Lord Denning M.R.
happened, he went too far. That is no reproach to him.. It only, shows
A
the wisdom of having an appeal.
As I have previously announced, the appeal is allowed "and the sentence
set aside.

STEPHENSON L.J. I would decide the last question first: was there
a contempt of court by the appellant? In my judgment, there was not;
B I agree that his admitted acts were preparatory to what might have been
a serious contempt of court but that he had not got as far as contempt or
indeed as an attempt to commit a contempt, except possibly on an under*
standing of what constitutes an attempt which is not generally accepted
and may be too unfavourable to a person charged with an attempt.
Contempt of court is a misdemeanour at common law, but I doubt if
an attempt to commit contempt is punishable as such. Whether it is or
C not, I have no doubt that acts which would not amount to an attempt
cannot amount to a contempt, of whatever type or category. It is not a
contempt to plan or intend a contempt or to take such preliminary steps
towards carrying out the plan or intention as the appellant took.
This would-be contemnor had not insulted the court or obstructed its
proceedings or done anything to bring the authority of the court into dis-
jj respect or to interfere with the administration of justice or to prejudice the
prosecution or defence in any trial in the St. Albans Crown Court. Any
danger of his doing so was averted by the action of the police. That is
enough to determine this appeal in his favour, and for this reason I agreed
that the appeal should be allowed.
But if the appellant had carried out his intention, even if to no purpose
or without effect upon counsel or the proceedings in the Crown Court,
E he would have been guilty of contempt, and contempt in the face of the
court however narrowly that expression is interpreted. Indeed I did not
understand Mr. Vinelott to maintain any argument that the appellant
would not then have been in contempt.
On that answer to the first question there is no need to answer any part
of the next question: if the appellant was in contempt, could or should his
p contempt have been immediately punished by Melford Stevenson J. as a
judge of the Crown Court in the way in which it was punished, namely, by
committal to prison for six months? Again my answer is " No," and my
reasons can be even more shortly stated—in two sentences. This pro-
cedure is one to which judges should resort in exceptional cases where a
contempt is clearly proved and cannot wait to be punished. Here the facts
alleged to constitute the contempt were admitted, but there was no need
G for immediate punishment. We have, however, heard full and interesting
submissions by Mr. Vinelott on behalf of the Official Solicitor for the
appellant and by Mr. Slynn as amicus curiae on the matters comprehended
in this question, and we may be able to give guidance to judges, in parti-
cular the many judges of the Crown Court who now have this arbitrary
power to make of their own motion immediate orders of committal for
JJ contempt of court, on the limits of the power and the conditions required
for its exercise. I therefore offer a few observations on those submissions
in elaboration of the reason I have given for answering this hypothetical
question in the negative.
88
Stephenson LJ. Balogh v. St. Albans Crown Court (C.A.) [1975]
The power of a superior court to commit (or attach) a contemnor to .
prison without charge or trial is very ancient, very necessary, but very
unusual, if not indeed unique. It is as old as the courts themselves and
it is necessary for the performance of their function of administering
justice, whether they exercise criminal or civil jurisdiction.
If they are to do justice they need power to administer it without
interference or affront, as well as to enforce their own orders and to punish
those who insult or obstruct them directly or indirectly in the performance B
of their duty or misbehave in such a manner as to weaken or lower the
dignity and authority of a court of law. Indirect interference with judicial
proceedings may now be the more serious and the more frequent kind of
contempt, though it was insulting behaviour in court which once called for
punishment of even more horrifying severity. According to Blackstone:
" Contempts against the king's palaces or courts of justice have been Q
always looked upon as high misprisions: and by the antient law,
before the conquest, fighting in the king's palace, or before the king's
judges, was punished with death. . . , But striking in the king's
superior courts of justice, in Westminster-hall, or at the assizes, is
made still more penal than even in the king's palace. The reason
seems to be, that those courts being antiently held in the king's palace,
and before the king himself, striking there included the former D
contempt against the king's palace, and something more; viz. the
disturbance of public justice."
So it was a capital felony "by the antient common law, before the
conquest": Blackstone, Commentaries, 15th ed. (1809), Book IV, Ch. 9,
pp. 124-125. It is clear from Chapter 20 of the same book that Black-
stone regarded " the method, immemorially used by the superior courts of E
justice, of punishing contempts by attachment" as a summary proceeding
and any summary proceeding as irregular and authorised only by statute
with this one exception: " for the common law is a stranger to it, unless
in the case of contempts "; but for contempts the power of immediate
attachment must be "an inseparable attendant upon every superior tri-
bunal " if it is to secure the administration of laws from disobedience and p
contempt: ibid. pp. 280, 283, 286.
It is not disputed that though the power of a superior court to attach
may remain, the High Court now makes immediate orders of committal.
Again there is undoubted power to indict for contempt, though it does
not seem to have been used since 1902. Further, any party can move the
court to commit for contempt, but it is the Attorney-General who now
usually moves the court to commit for criminal contempt. And the Rules G
of the Supreme Court purport by R.S.C., Ord. 52, r. 1 (2) (a), to give sole
jurisdiction to make such orders to the Divisional Court of the Queen's
Bench Division with leave when contempt of court is committed in con-
nection with " (ii) criminal proceedings, except where the contempt is
committed in the face of the court or consists of disobedience to an order
of the court or a breach of an undertaking to the court." But by Ord. 52,
H
r.5:
" Nothing in the foregoing provisions of this Order shall be taken as
affecting the power of the High Court or Court of Appeal to make an
 89
1 Q.B. Balogh v. St Albans Crown Court (C.A.) Stephenson L J .
order of committal of its own motion against a person guilty of con-
A
tempt of court."
Finally, section 4 (8) of the Courts Act 1971 provides:
" . . . the Crown Court shall, in relation to the attendance and exam-
ination of witnesses, any contempt of court, the enforcement of its
orders and all other matters incidental to its jurisdiction have the like
B powers, rights, privileges and authority as the High Court";
and the Crown Court now has the power to punish summarily any person
who disobeys a witness summons to attend before it " as if his contempt
had been committed in the face of the court": Criminal Procedure
(Attendance of Witnesses) Act 1965, sections 2 and 3; Courts Act 1971,
section 56 and Sch. 8, para. 45.
c
The present rules, like section 3 (1) of the Act of 1965, reflect in R.S.C.,
Ord. 52, almost as clearly as the old rules in Ord. 44, r. 2, and Ord. 59,
r. 26, which Ord. 52 replaced, the notion that the summary power of the
High Court to imprison of its own motion, or by an immediate order, is
limited to contempts in facie curiae, or in the face of the court, whatever
those words mean in Latin or in English. (I say "almost as clearly"
j) because their omission from Ord. 52, r. 5, may be intentional.) I would
understand the words to have meant originally " in the sight of the court,"
which may still be ambiguous. They have received a statutory interpreta-
tion in section 157 (1) of the County Courts Act 1959, which, based on the
judgment of Bowen LJ. in In re Johnson (1887) 20 Q.B.D. 68, 74, extends
the range of a court's vision beyond the court's walls but confines con-
tempts to insults.
E Contempts, however, are not confined to contemptuous or offensive
words or conduct or to the disturbance of court hearings, nor are those the
only contempts which attract the summary remedy. I do not accept the
argument that the limits of the power of a superior court to imprison a
contemnor are defined or restricted by the Rules of the Supreme Court.
They should disclose but may disguise its true nature and extent, and if
p they misunderstand it they may need to be revised. The question is not
what the rules of procedure which regulate it say or imply that it is but
what it really is. I am satisfied that it is not limited to contempt in the face
of the court, on any permissible understanding of those words, but has long
extended not only to disobedience to orders of the court and breaches of
undertakings to the court but also to interference with the administration
of justice which satisfy two conditions: (1) that the contempt is clearly
G proved beyond a reasonable doubt, and (2) that it affects or is intended
to affect the course or outcome of judicial proceedings in being—that is, in
the words of Lord Diplock in Attorney-General v. Times Newspapers Ltd.
[1974] A.C. 273, 308 " actually proceeding o r . . . known to be imminent"
—unless immediately stopped by the apprehension and, if necessary, the
detention of the offender. These are necessary conditions for the exercise
JJ of this arbitrary power, whatever the type of contempt against which it is
exercised and whether in exercising it the court is described as acting
brevi manu, or immediately, or instanter, or of its own motion, or sum-
marily. Procedure for contempt by motion under R.S.C., Ord. 52, rr. 1
1 Q.B. 1975—5
90
Stephenson LJ. Balogh v. St. Albans Crown Court (C.A.) [1975]
and 2, might be described as summary, but when a judge of the High Court
or Crown Court proceeds of his own motion, the procedure is more sum-
mary still. It must never be invoked unless the ends of justice really
require such drastic means; it appears to be rough justice; it is contrary to
natural justice; and it can only be justified if nothing else will do: see, for
instance, the judgments of Sir George Jessel M.R. in In re Clements,
Republic of Costa Rica v. Erlanger (1877) 46 LJ.Ch. 375, 383, and of
Lord Russell of Killbwen C.J. in Reg. v. Gray [1900] 2 Q.B. 36, 41 and B
the dissenting judgment of Laskin J. in the Canadian case of McKeown v.
The Queen (1971) 16 D.L.R. (3d) 390, 413. But if a witness or juror is
bribed or threatened in the course of a case, whether in the court or its
precincts or at any distance from it, the judge must act at once against the
offender and if satisfied of his offence, punish him, if necessary by com-
mitting him to prison. _
I conclude with six comments.
(1) The first condition is, of course, most easily satisfied where the
contempt is something said or done in the sight of the judge or jury, but it
may be satisfied by an admission (as in this case) or by acceptable (and not
necessarily uncontradicted) evidence (as in Lecointe y. Court's Adminis-
trator of the Central Criminal Court, before this court on February 8, 1973
D
(unreported)). .
:
(2) I see no reason why one judge of the Crown Court or the High
Court should not commit for contempt of another. It is done in the
Family Division when one judge commits a husband for breach of another's
order. It depends on all the circumstances whether more than one judge
should come into these summary proceedings. It may be better for a
presiding judge available in the same building to commit for a contempt of g
a circuit judge's court. I do not accept the appellant's uninstructed
opinion,-which I understand Mr. Vinelott to have abandoned, that Melford
Stevenson J. could not commit him for a contempt of court next door
where he "intended to subvert the proceedings" (his own words) by dis-
charging nitrous oxide.
(3) There may be contempts which require immediate action but not
immediate imprisonment. There may be cases punishable summarily F
where it would be appropriate to fine, or discharge, the contemnor or to
take sureties for his good behaviour.
(4) There may be cases where it is proper because necessary to commit
a contemnor without giving him legal representation. I know that legal
aid is not available for contempt, but a judge can always ask counsel to
represent a contemnor, as Park J. did in Moore v. Clerk of Assize, Bristol Q
[1971] 1 W.L.R. 1669; and for my part I would hope that there would be
few cases—Morris v. Crown Office [1970] 2 Q.B. 114 was one, but this
case, in my judgment, was not—where this course should not be taken if
counsel is available. There is every reason not to cut means of justice,
which are of necessity curt if not rough, even shorter than they need be.
This appellant asked for legal representation and I am of opinion that the „
judge should have tried to find him counsel, although he was, as the judge
said, "an articulate and highly intelligent person," who knew that he was
being charged with a serious contempt, was given an opportunity to defend
 91
1 Q.B. Balogh v. St. Albans Crown Court (C.A.) Stephenson L J.
himself on that charge, and seems to have shown himself in no mood to
listen to warnings or to offer apologies.
(5) The power which the judge exercised is both salutary and danger-
ous : salutary because it gives those who administer justice the protection
necessary to secure justice for the public, dangerous because it deprives
a citizen of the protection of safeguards considered generally necessary to
secure justice for him. This appeal gives an opportunity to make clear that
B it is a power to be used reluctantly but fearlessly when, and only when,
it is necessary to prevent justice being obstructed or undermined—even by
a practical joker. That is not because judges, jurors, witnesses and officers
of the court take themselves seriously: it is because justice, whose servants
they are, must be taken seriously in a civilised society if the rule of law
is to be maintained. It must be left to the common sense of judges of the
High Court and the Crown Court to decide when they must resort to this
C power to deal with such contempts as are listed in the judgment which
Lawton L.J. is about to deliver; but now that convictions and sentences
for contempt are appealable to this court, it is for this court to interfere
when this power is misused. I sympathise with the way in which the judge
used it to deal with the folly of an irresponsible young man who, as a
solicitor's clerk, was under a duty to help and hot to hinder the due
p administration of justice in a serious criminal case; but nevertheless I am
of opinion that the judge was wrong to deal with the appellant as he did
and not to leave him to be prosecuted for a contemptible theft.
(6) I find it unnecessary to say anything about the length of the sen-
tence except that everything which Mr. Vinelott wished to say about it in
apology and mitigation could have been said on an application to the
judge himself to discharge the appellant.
E
LAWTON L.J. For nearly the whole of this century those accused of
contempt of court, which is a common law misdemeanour, have been tried
and sentenced in a way which is far removed from the ordinary processes
of the law. The last reported case of a trial on indictment was in 1902:
see Rex v. Tibbits [1902] 1 K.B. 77. No precise charges are put; some-
p times when the judge has himself seen what happened, the accused is asked
to explain his conduct, if he can, without any witnesses being called to
prove what he has done; often the accused is given no opportunity of con-
sulting lawyers or of an adjournment to prepare a defence; and there is no
jury. The judge, who may himself have been insulted or even assaulted,
passes sentence. Some aspects of proceedings for contempt of court, in
Blackstone's phrase, are "not agreeable to the genius of the common
G law": see Commentaries, 16th ed. (1825), Book IV, p. 287. Yet judges
have this unusual jurisdiction. In this appeal the court has been asked to
mark some of its boundaries.
Three questions require an answer: first, had Melford Stevenson J. any
jurisdiction at all to deal with this appellant; secondly, if he had, should
he have exercised his jurisdiction in the circumstances of this case; and
tr thirdly, did the appellant's admitted conduct amount to contempt of court?
Mr. Vinelott, the appellant's counsel, did not. submit that judges can
never commit summarily for contempt of court, but that their jurisdiction
to do so is circumscribed by being limited.to contempts "in the face of
92
Lawton L.J. Balogb v. St. Albans Crown Court (C.A.) [1975]
the court," whatever that phrase may mean. He found support for his .
submission in the Rules of the Supreme Court in which a distinction seems
to be drawn between contempts "in the face of the court" and other
contempts. He accepted that in Blackstone's time, that is, the mid-18th
century, judges considered that they had jurisdiction to commit sum-
marily for contempts which could not be said to have been committed
within the sight or hearing of the judge, as, for example, by sheriffs, bailiffs,
gaolers and other officers of the court " by abusing the process of the law, B
or deceiving the parties, by any acts of oppression, extortion, collusive
behaviour, or culpable neglect of duty ": see Commentaries, ch. 20, p. 284.
He submitted that this extensive jurisdiction had been cut down by the
rules. In my judgment it has not, because rule 5 of R.S.C., Ord. 52
preserves the common law right of a judge to make an order for committal
of his own motion against a person guilty of contempt. _
What then is the jurisdiction at common law to commit for contempt?
In the 18th century it was a jurisdiction in which the judges of " all courts
of record generally, but more especially those of Westminster Hall, and
above all the Court of King's Bench, may proceed in a summary manner,
according to their discretion": see Hawkins' Pleas of the Crown, 8th ed.
(1824), Book 2, Ch. xxii, p. 206. By " summary manner " Hawkins meant
" without any Appeal, Indictment, or Information ": see ibid. p. 206. It D
is clear both from Hawkins and Blackstone that this summary jurisdiction
was not confined to cases where the contempt occurred in the court itself:
see Hawkins, pp. 206 to 223, and Commentaries, pp. 283-288. From
the way these authors expounded the law (and they did so in similar
terms) the inference is that at the time they wrote there was no doubt
whatsoever about the existence and extent of the jurisdiction and that it
was no innovation; and there can have been no doubt among lawyers
during the first quarter of the 19th century, as the editions from which
I have quoted were published in 1824 (the 8th edition of Hawkins) and
1825 (the 16th edition of Blackstone). As far as I am aware, no statute
has ever limited this jurisdiction. Section 4 (8) of the Courts Act 1971
does not limit jurisdiction; it confers it on the Crown Court. It follows
that it was no defence for the appellant to submit, as he did, that he had p
neither intended to interfere with proceedings in Melford Stevenson J.'s
court, nor had done anything in his court which could have interfered
with the proceedings there. Once there were reasonable grounds for
thinking that a contempt of court had been committed, no matter where,
Melford Stevenson J. had jurisdiction to deal with it summarily.
The fact that judges, whether of the High Court or the Crown Court,
have this summary jurisdiction does not mean that they should use it ®
whenever opportunity offers. It is an unusual jurisdiction which has come
into being to protect the due administration of justice. In Blackstone's
words, it applies to any conduct which
" demonstrates a gross want of that regard and respect, which when
once courts of justice are deprived of, their authority (so necessary
for the good order of the kingdom) is entirely lost among the people.": H
see Commentaries, p. 285.
In my judgment this summary and draconian jurisdiction should only be
 93
1 Q.B. Balogh v. St. Albans Crown Court (C.A.) Lavvton LJ.
. used for the purpose of ensuring that a trial in progress or about to start
can be brought to a proper and dignified end without disturbance and
with a fair chance of a just verdict or judgment. Contempts which are
not likely to disturb the trial or affect the verdict or judgment can be
dealt with by a motion to commit under R.S.C., Ord. 52, or even by
indictment.
The exercise of judicial discretion in this way can be illustrated by
B reference to the kinds of contempt which are most frequently witnessed
by or reported to judges: witnesses and jurors duly summoned who refuse
to attend court; witnesses duly sworn who refuse to answer proper questions;
persons in court who interrupt the proceedings by insulting the judge,
shouting or otherwise making a disturbance; persons in court who assault
or attempt to assault or threaten the judge or any officers of the court
whose presence is necessary; persons in or out of court who threaten those
^ about to give evidence or who have given evidence; persons in or out of
court who threaten or bribe or attempt to bribe jurors or interfere with
their coming to court; persons out of court who publish comments about a
trial going on by revealing a defendant's criminal record when the rules
of evidence exclude it. Contempt of these kinds may well justify the use
of the summary jurisdiction; but everything will depend upon the circum-
D stances. For example, judges from time to time have to decide what to
do about a witness who refuses to answer a question, often because he
cannot bring himself to state that which is obvious to both judge and
jury or because the answer would cause acute personal embarrassment, as
sometimes happens with doctors and ministers of religion. In many such
cases a judicial admonition may be adequate if judicial comment is required
at all: but when the witness refuses to answer questions because he wants
E to deny the court evidence which is important, the position is very
different. Contempts committed or becoming known some time after
verdict or judgment as, for example, when a newspaper comments in
insulting terms about the judge's decision or conduct of the trial, or it
becomes known that someone on behalf of a convicted defendant attempted
to bribe a juror, are best dealt with otherwise than in a summary manner
p by the trial judge.
In this case the vigilance and intervention of the police stopped the
appellant from doing what he had been minded to do, which was to
disturb the proceedings in what Lord Denning M.R. has described as the
pornography court. Once he had been arrested for stealing the cylinder
of gas there was no chance of this coming about; and before his arrest
nothing had happened in that court. If the appellant had done what he
^ was minded to do he would have deserved a sharp sentence given sum-
marily. On the proven facts in this case, even if they had amounted to a
contempt of court, I am doubtful whether the exercise of summary juris-
diction was necessary. I do not feel able to give my opinion in more
definite terms because I was not there. I know from my own experience
as a trial judge that conduct amounting to contempt of court can happen,
JJ indeed usually does happen, unexpectedly. If the judge is to protect
effectively the proper administration of justice, he has to act at once.
He may have no time for reflection and he seldom has time to consult
colleagues. He has to act on his own assessment of the situation. In my
94
Lawton LJ. Balogh v. St. Albans Crown Court (C.A.) [1975]
judgment, if he does decide to act summarily, this court should be slow to .
say that he should not have done so. But in this case such an exercise
may not have been necessary to safeguard either the orderly continuance
of the trial in the neighbouring court or the integrity of the jury there.
The appellant has apologised, somewhat belatedly, for what he did.
It was conduct which was puerile and stupid. The courts, however, have
no jurisdiction to punish anyone for mere folly: they can only be punished
for proven crime. Did the appellant's conduct amount to the common law B
misdemeanour of contempt of court? He intended to disturb the proceed-
ings in a court; but he could not be punished for what was in his head.
He had made preparations to put his plan into operation: he had stolen
the cylinder of gas and left it in Melford Stevenson J.'s court in a place
where it would be handy for him to pick up when he went on to the roof
to release the gas into the ventilation system. Making preparations to c
commit a crime is not the same as committing it or attempting to commit
it: such conduct does not become criminal until it is so near to the crime
that an intelligent onlooker watching what was going on would say that
the person under observation was about to commit it. In my judgment,
this could not have been said of the appellant in this case. Providence
intervened to save him from turning his preparations into criminal action.
It follows that what he was proved to have done was just, but only just, D
short of contempt of court.
It was for these reasons that I agreed to the appeal being allowed.

Appeal allowed.
Sentence set aside.
E
Solicitors: A. F. & R. W. Tweedie for Official Solicitor; Treasury
Solicitor.
M. M. H.

F
[COURT OF APPEAL]

WALLIS'S CAYTON BAY HOLIDAY CAMP LTD.

v. SHELL-MEX AND B.P. LTD.
[Plaint No. 7350121] G

1974 June 25, 26; Lord Denning M.R., Stamp

July 10 and Ormrod L.JJ.

Limitation of Action—Land, recovery of—Possessory title—

Disputed land adjoining garage awaiting development—New
road behind to be constructed—User of land for 10 years for TJ
farming purposes—Subsequent two-year user as frontage for
holiday camp—Whether owners dispossessed—Whether
" adverse possession "—Limitation Act 1939 (2 & 3 Geo. 6,
c. 21), ss. 4 (3), 10 (1), 13,16