A leading barrister will face proceedings over an alleged contempt of court during his closing speech in a Palestine Action criminal damage trial, it has been announced.
Rajiv Menon KC has been told to appear at the Royal Courts of Justice in London on July 28, where he will respond to accusations that he misled the jury and ignored the directions of the trial judge when representing one of six activists who invaded the UK site of Israeli defence firm Elbit Systems at a trial in January.
The incident was sparked by Mr Menon’s closing speech while representing Charlotte Head, a Palestine Action activist who had been involved in criminal damage at the Bristol factory.
In the speech, Mr Menon highlighted a plaque at the Old Bailey which sets out the “right of juries to give their verdict according to their convictions” and on six occasions told jurors that the trial judge, Mr Justice Johnson, could not direct them to convict the defendants.
Earlier this month, Mr Justice Johnson referred the question of whether Mr Menon should face contempt of court proceedings to another judge, Mr Justice Nicklin.
A court order published on Tuesday said Mr Justice Nicklin was “satisfied that there is evidence which raises a prima facie case that the respondent may have acted in contempt of court and that it is in the public interest for contempt proceedings to be instituted by the court”.
The hearing next month will be held before Mrs Justice Cheema-Grubb and is scheduled to last two days, the order said.
Setting out his reasons for initiating contempt proceedings, Mr Justice Nicklin said he was “not determining whether Mr Menon KC is guilty of contempt of court”, but instead was “deciding whether there is sufficient material to justify the institution of contempt proceedings and whether it is in the public interest to do so”.
He continued: “In deciding whether it is in the public interest that contempt proceedings should be instituted, I bear fully in mind the importance of fearless advocacy.
“Advocates owe a duty to represent their clients fearlessly and by all lawful means. The court must therefore exercise real caution before invoking the contempt jurisdiction in relation to what was said by counsel in the course of a criminal trial.
“At the same time, it is fundamental to the rule of law that orders and rulings made by a judge in the course of a criminal trial are obeyed by those participating in the proceedings, including the advocates appearing in the case.
“If a ruling is said to be wrong in law, or otherwise open to challenge, the law provides means by which that may be corrected. It is not for those participating in the proceedings to decide with which rulings they will comply and which they will not.”
Setting out the allegations against Mr Menon, the order said the barrister “created a real risk of impeding the proper administration of justice” through his speech to jurors on January 8.
The order said: “It is alleged that the respondent acted deliberately, in the knowledge of the court’s rulings and directions.
“Further or alternatively, it is alleged that the respondent deliberately breached those rulings and directions knowing that his conduct would create, or was capable of creating, a real risk of impeding the administration of justice.
“It is further alleged that, in the same speech to the jury, the respondent made statements which were capable of suggesting to the jury that the court was not impartial, in that he referred to the defendants being prevented from giving evidence about Elbit Systems, and later referred to Elbit Systems being ‘protected’ and ‘wined and dined in the corridors of power’.
“Those statements were capable of creating the impression that the defendants had been treated unfairly and that Elbit Systems had been improperly protected in the proceedings.”
Mr Justice Johnson ruled last month that Mr Menon did have a case to answer for a potential contempt, but declined to refer the issue to the attorney general.
That ruling came after the Court of Appeal said in May that Mr Justice Johnson had initially wrongly sent the case directly to the High Court.
Adrian Waterman KC, representing Mr Menon at the Court of Appeal earlier this year, said the barrister “did not think he was knowingly breaching the order” and was “utterly shocked at what was being suggested”.
Mr Menon also previously said he was “struggling to understand” how he breached the order.
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