Mr Warner is a Jehovah’s Witness. In R v Warner [2020] EWCA Crim 499, he was appealing against a fine for contempt of court which, it was alleged, took place during a criminal trial before HHJ Linford and a jury in the Crown Court at Truro in July 2018 [2].

The background

The defendant in that trial, Mr Davies, had been charged with inflicting grievous bodily harm after an incident outside a Kingdom Hall of the Jehovah’s Witnesses in January 2018 in which the victim, Mr Jones, had suffered a fractured hip. Mr Warner saw the incident and when called as a witness at Mr Davies’s prosecution, gave evidence that he had seen Mr Davies push Mr Jones from behind, causing Mr Jones to fall heavily to the ground [3].

Mr Warner also said that, after an investigation by the JWs’ judicial committee, Mr Davies had been “disfellowshipped”: expelled from the Congregation. He was asked if he knew that it had been because Mr Davies had been accused of using cannabis and who had chaired the judicial committee. He replied that he could not answer because it was confidential. At that point, HHJ Linford intervened, explaining that the question was not improper and asking him to answer it: he again refused [4]. After further refusals and two adjournments, Mr Warner told the judge:

“Sir, as an elder for the congregation, I care for the spiritual and the physical needs of my congregation. Sir, I cannot answer questions about cases that were past or present. That is the instruction by my legal desk” [9].

After a further adjournment, he persisted in his refusal “as a minister of religion”, the prosecution offered no further evidence and, on the judge’s directions, the jury returned a not guilty verdict against Mr Davies [12].

At the contempt hearing on the following day, Mr Warner’s counsel explained that the role of elders in JW congregations was to provide counselling and encouragement, to receive any concerns from other Witnesses, to provide guidance and to watch over their spiritual wellbeing. The role was underpinned by a principle of confidentiality, and any breach of that confidentiality would have serious consequences for Mr Warner and would lead to his removal, not only from eldership but also as a Jehovah’s Witness. He had sought guidance before attending the trial and had been told categorically that confidentiality remained absolute [13]. What had not been explained to him clearly, however, was that Mr Davies had effectively waived confidentiality. HHJ Linford had intervened to say that he had told Mr Warner that the privilege – if it existed – belonged to Mr Davies; unfortunately, however:

“Counsel replied that her instructions were that the appellant had not understood that Mr Davies had gone to the extent of telling why he had been disfellowshipped, and who had chaired the committee, and that was why he had maintained the position of confidentiality. Having been permitted by the judge to speak to others overnight, the appellant had sought guidance and had been told that he could have answered the questions because the confidentiality had been lifted by Mr Davies. Counsel expressed the appellant’s sincere apologies, which were also expressed in a letter the appellant himself had written to the judge” [13].

HHJ Linford nevertheless found Mr Warner to be in contempt. He found it difficult to accept that Mr Warner had not understood that Mr Davies had already disclosed the confidential matters. Though he accepted that Mr Warner had not acted out of malice but because of what he perceived to be a religious obligation, he fined him £500 [14-15].

The appeal

The ground of appeal was that HHJ Linford had erred in finding Mr Warner to be in contempt. He had failed to explain to him that he could take legal advice and had failed to allow him to take legal advice at the point at which he was potentially in contempt of court – in disregard of Part 48.5 of the Criminal Procedure Rules [17]. It was argued for Mr Warner that it had been procedurally unfair to refuse him the opportunity to take legal advice about his duty of confidentiality as a religious minister before he was asked for his final answer to the questions:

“Although the appellant was legally represented the following day, it was by then too late: the jury had been directed to return their not guilty verdict as a result of the appellant’s refusal to answer the questions and it was likely that the judge would find him to have been in contempt of court” [18].

Furthermore, had he been given proper advice, he would have answered the questions put to him because he would have known that Mr Davies had waived confidentiality [19].

The judgment

The Court (Holroyde LJ, Bryan and Nicklin JJ) upheld the appeal. Mr Warner

“was a competent and compellable witness in the criminal trial. As the judge ruled, the questions he was asked in cross-examination were relevant and permissible, and the judge required them to be answered. The witness was therefore bound to answer, and failure to do so would be a contempt of court unless he could validly claim an immunity or privilege against answering [23].

There was here no question of public interest immunity or of legal professional privilege or of journalistic privilege. 19th-century case law suggests that a priest cannot strictly claim a privilege not to answer questions about what is said to him in the confessional, but should not be required to do so. It is not necessary for us to explore that point in detail. It suffices to say that we agree with [counsel’s] submission that the circumstances here are very different from those of a religious confession” [24].

The Court agreed that HHJ Linford had been correct to conclude that Mr Warner could not claim any recognised privilege against answering the relevant questions [25]. However:

“Procedural fairness is required in contempt proceedings both at common law … and by the provisions of Rule 48.5 and by the Convention requirement relating to fair trial’ [27].

Had Mr Warner been given the opportunity to take legal advice, it would have emerged that he could, in fact, have answered the questions without in any way going against the dictates of his religion [32]. And even if he had maintained his position after taking advice,

“a careful consideration was needed … of whether the judge should exercise his discretion to excuse the appellant from answering the questions. If the opportunity for advice had been given, it would have emerged at that stage, instead of on the following day, that confidentiality underpinned the work of the Jehovah’s Witnesses’ elders and that an insistence on answering would therefore not only expose the appellant personally to very severe consequences but might also undermine the work of the elders generally. Given that the point which defence counsel wished to make could have been made in other ways, we think that it is strongly arguable that the discretion could have been exercised in the appellant’s favour … we think it is strongly arguable that the judge may, upon analysis, have concluded that more harm than good would result from compelling answers from the appellant. As it was, the point was not considered at all” [33: emphasis added].

Therefore:

“in the very particular and unusual circumstances of this case, there was a serious procedural unfairness in not fully and clearly explaining to the appellant that any confidentiality had been waived by Mr Davies, and in refusing the appellant’s request for an opportunity to take legal advice before being asked the questions again. Had those steps been taken, it is highly likely that the situation in which the appellant was found to have acted in contempt would never have arisen. There was, therefore, a material irregularity in the proceedings” [34].

The appeal was allowed and the finding of contempt quashed.

[With thanks to David Lamming for drawing the judgment to my attention.]