By a summons and a court order dated 29 June 2026, proceedings for contempt of court were instituted against a criminal barrister, Rajiv Menon KC. The proceedings concern parts of Mr Menon KC’s closing speech to the jury during the trial of several activists arising out of an incident at a factory operated by Elbit Systems Ltd in Filton, Bristol.
In this article Helen Evans KC, Samuel Cuthbert and Ryan Fincham consider contempt proceedings brought against barristers and solicitors arising out of their behaviour during civil or criminal proceedings.
What do these cases show about when a court can get involved in contempt proceedings and when matters should be left to the professional regulators?
The proceedings against Mr Menon KC
Procedural Background
The procedural history of these proceedings is labyrinthine – and as yet unresolved. Mr Menon KC, as counsel for the first defendant named on the indictment, delivered his closing speech on 8 January 2026. Johnson J, the judge conducting the trial, handed down a written ruling on 12 January 2026[1] considering whether Mr Menon KC’s closing speech had breached a number of Johnson J’s previous orders and directions.
Those orders and directions were broadly to the effect that:
- the defendants’ “lawful excuse” defence did not amount to a defence in law and any evidence that was relevant only to that defence was inadmissible;
- the jury were to put their views of the Middle East, the war in Gaza, and Elbit’s role to one side;
- counsel were not permitted to rely on inadmissible matters in their closing speeches;
- the jury were not to be informed that the judge could not direct them to convict;
- the jury were not to be invited to disregard the court’s rulings of law or their oaths; and
- the jury were not to be informed of, or invited to apply, what had been described as the principle of “jury equity”.
(NB The concept of “jury equity” is said to derive from Bushell’s Case (1669) 124 ER 1006, to the alleged effect that a jury may apply the law to the facts according to their conscience (usually by acquitting a defendant where evidence otherwise points to their guilt)).[2]
The trial in the Elbit Systems matter ended on 4 February 2026 with the discharge of the jury following a mixture of acquittals and failures to agree verdicts[3]. The Crown sought a retrial and submitted that Mr Menon KC had made a speech which disobeyed the directions of the court. At a directions hearing on 18 February 2026 (which Mr Menon KC did not attend because he was on holiday), Johnson J stated that he had referred the possible contempt to a Divisional Court (i.e. the Administrative Court) and on 19 February 2026, he issued an order to that effect.
A directions hearing before Edis LJ took place on 11 March 2026. At that hearing, counsel for Mr Menon KC submitted that the Administrative Court had no jurisdiction to consider the contempt proceedings. Edis LJ handed down an ex-tempore judgment after the hearing and held that all issues, including jurisdiction, should be decided at a substantive hearing.
An order to this effect was issued on 13 March 2026. Mr Menon KC appealed that order to the Court of Appeal on the ground that the Administrative Court lacked jurisdiction to hear the allegation of contempt.
The Court of Appeal ([2026] EWCA Civ 4) held that the Administrative Court did lack jurisdiction; when faced with an alleged contempt in the face of the Crown Court, the court can either try the alleged contempt itself (and that trial may take place before the judge hearing the case or another judge sitting as a Crown Court judge) or refer the case to the Attorney General to consider instituting contempt proceedings (para. 62). The Court of Appeal left the matter with Johnson J, to decide whether to take either course of action or to dispose of the matter in a different way (by, for example, declining to initiate contempt proceedings or referring the alleged contempt to the Bar Standards Board (“BSB”) as a possible breach of the Code of Conduct).
The decision of Johnson J
In a decision handed down on 22 June 2026 after a hearing on 19 June 2026 (the re-trial and sentencing of the defendants in the underlying criminal proceedings having concluded on 12 June 2026) Johnson J directed that the allegation of contempt be referred to a Presiding Judge to consider whether it was appropriate to institute contempt proceedings. As with any case where the court is considering laying contempt charges, the court had to review the prospects of the requisite tests being met and whether proceedings would be in the public interest.
Johnson J took the view that there was a case to answer as to whether the content of Mr Menon KC’s closing speech breached the court’s directions and rulings, even though Johnson J stated that he would be ‘exceptionally slow’ to find that any professional advocate had committed a contempt of court, and that he had started from the position that it was highly unlikely that Mr Menon KC would deliberately disobey an instruction from the court (para. 16).
As to the actus reus of contempt, it was accepted that a barrister’s conduct, including disregarding the judge’s ruling when addressing the jury, can in principle amount to contempt. Johnson J stated that the alleged breaches were not isolated or technical, but serious and repeated, and that there was a case to answer as to whether the closing speech had subverted both the jury’s role and the court’s rulings (paras. 17-19). We emphasise that we are not commenting in this article on whether the allegations against Mr Menon KC are in fact wrong or right: that is a matter for the contempt proceedings to determine in due course.
As to the mens rea, Johnson J held that it was not necessary to decide at that stage whether it must be shown that Mr Menon KC intended to create a real risk of impeding the administration of justice, or whether it was sufficient to show that Mr Menon KC knew of the court’s rulings and deliberately said what he did (para. 22). That too would be a matter for the substantive contempt proceedings (para. 24).
Turning to whether contempt proceedings were in the public interest, Johnson J considered factors weighing against instituting proceedings, such as the need for defence counsel to be given latitude when discharging their professional responsibilities and the impact on both the defendant’s right to a fair trial and counsel’s freedom of speech rights under Articles 6 and 10 of the ECHR.
Johnson J nonetheless indicated that the public interest fell strongly in favour of the institution of contempt proceedings (para. 34). Key factors were the importance of the court being able to enforce its own directions, the fact that the proceedings concerned the alleged content, structure and effect of Mr Menon KC’s closing speech rather than an isolated remark, and the fact that there are further trials in the same proceedings at which the court must be able to give and enforce clear rulings as to the permissible scope of advocacy before the jury.
In terms of what step should be taken, Johnson J did not consider that this was an appropriate case to refer to the Attorney General (as such cases tend to concern publications, recordings or jury misconduct) and held that referral to the BSB would lead to delay and would be a delegation of the court’s responsibility for enforcing its own orders.
The referral to and decision of Nicklin J
Johnson J directed a court officer, pursuant to rule 48.5(4)(a) of the Criminal Procedure Rules (“CrimPR”), to report the incident to a Presiding Judge in order for the Presiding Judge to decide whether to institute contempt proceedings (Johnson J having held that it would be inappropriate for him to try the matter himself given that the alleged contempt concerned breaches of orders and directions that he had given).
The matter was reported to Nicklin J, who emphasised that he was not deciding whether Mr Menon KC was guilty or not. His task was to decide whether there was sufficient material to justify the institution of contempt proceedings. He held that Mr Menon KC would face contempt proceedings because there was evidence raising a prima facie case of contempt and it was in the public interest for contempt proceedings to be instituted.
Nicklin J considered the importance of fearless advocacy and stated that a court must exercise real caution before instituting contempt proceedings of this kind, but ultimately held that it is fundamental to the rule of law that orders and rulings made by judges in criminal trials are obeyed, and that it is not for participants to decide whether a judge’s orders are correct.
The charges against Mr Menon KC can be found here. A substantive trial of the contempt allegations is due to take place later in July. Again, we emphasise that we are not commenting on the substance of the allegations against Mr Menon – that will be for the court in the contempt matter to determine.
But how does the case against Mr Menon KC fit in with other cases against lawyers accused of breaching court orders or directions?
The context: criminal contempt proceedings involving allegations against barristers or solicitors in the course of proceedings
Although this is believed to be the first instance of contempt proceedings being instituted against a barrister for allegedly disobeying a judge’s order in a closing speech, there is some history of criminal contempt proceedings against barristers and solicitors arising out of their behaviour in the course of civil or criminal proceedings- whether in court or in connection with draft judgments.[4]
Contents of a closing speech
In Ex parte Pater (1864) 122 ER 842, a defence barrister clashed with an interventionist jury foreman. After warning the foreman during the trial that ‘you had better not get into collision with me, Sir’, the barrister said in his closing speech:
‘I thank God there is more than one juryman to determine whether the prisoner stole these articles, for if there was only one, and that one the foreman, from what has transpired today there is no doubt what the result would be.’
The barrister refused to withdraw this observation at the judge’s invitation and instead repeated it. After the trial concluded, the Presiding Judge held the barrister in contempt of court and fined him £20. On appeal to the Court of King’s Bench, the court stated that there was no precedent for finding a barrister in contempt for words spoken by him in discharge of his duty, and acknowledged that ‘the case was one of very great importance, as affecting the independence of the bar and the discharge of the duties of advocates’.
However, the court found that the Presiding Judge’s conclusion was not so unreasonable and wrong that he had no jurisdiction to impose a fine on the barrister. In other words, the court upheld the punishment for contempt.
Non-attendance
In the Nigerian case of Izuora v The Queen [1953] AC 327, a barrister was ordered to attend the handing-down of a judgment but failed to do so. He was found in contempt and fined £10. That finding was quashed by the Privy Council. Lord Tucker stated that not every act of discourtesy to the court, or a breach of counsel’s duty to his client, amounts to contempt. The barrister’s conduct did not cross the line from discourtesy to contempt.
In Weston v Central Criminal Courts Administrator [1977] QB 32, a solicitor was held in contempt for failing to attend a trial and for refusing to apologise for that failure. The facts were complex and fell into confusion before the judge. They started with the solicitor feeling aggrieved when his client’s trial was listed with very little warning. When the solicitor did not attend (but his client did) the judge ordered the solicitor to attend also. When the solicitor still did not turn up, the court issued a bench warrant to force the solicitor to come to court. The terms of the warrant showed that the judge regarded the solicitor as being in contempt. When the solicitor was finally brought before the court, the judge ordered him to pay costs.
The judge’s finding was overturned by the Court of Appeal, applying Izuora v The Queen, on the basis that:
- When the solicitor initially failed to appear to defend his client, this had been a breach of his duty to his client and the court. However, the solicitor had not intended to hinder the or delay the hearing. He had been motivated by his perception that the case was not ready for trial and that it was unfair to his client to proceed. The solicitor therefore had not crossed the line from discourtesy to contempt (p. 43).
- When the solicitor then failed to appear when ordered to do so, the order had not in fact been properly served upon him (p. 44). In those circumstances his non-attendance could not be seen as a contempt of court.
Lord Denning MR stated that the proper way to deal with the solicitor’s conduct would be to report it to the Law Society (p. 44).
In Re West (Ian Stuart) [2014] EWCA Crim 1480; [2014] 2 Cr App R 28, a barrister was found in contempt for failing to return to an adjourned Crown Court preliminary hearing, despite being ordered to do so, and was fined £500. That finding was overturned by the Court of Appeal again on the basis of procedural error – because the court’s notice to the alleged contemnor fell short of the requirements in CrimPR Part 62 (now Part 48).[5]
Accordingly, the Court of Appeal did not need to decide whether the barrister had intended by his conduct to delay the hearing. However, the court was prepared to observe that:
- The judge had the power to order a legal representative to attend court;
- The barrister – who had engaged in argument with the judge to the extent of asking the judge to apologise to him – had committed “serious misconduct of a type that is wholly inimical to the proper discharge of his professional duties and, furthermore, in total disregard of his duty to the court” (para. 42).
The court also observed that: “The law of contempt is available to provide a fair trial, to ensure compliance with the court’s orders and to protect the proper administration of justice, the sole purpose of the jurisdiction being “to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented” (para. 43).
Although the procedural errors meant that the “arrogant”[6] barrister escaped from contempt, he was referred instead to the BSB.
Breach of embargo
Although not strictly arising from what happened in court itself, breach of judgment embargo cases are close relatives of the other cases considered above, albeit with the additional feature of a written prohibition making clear that judgments may not be disclosed beyond very limited permitted recipients at the top of every draft.
In Attorney General v Crosland [2021] UKSC 15; [2021] 4 WLR 103, an unregistered barrister who had represented a charity in proceedings concerning an environmental challenge to plans to expand Heathrow Airport had deliberately breached a judgment embargo as an act of civil disobedience. The Supreme Court had no difficulty holding the barrister in contempt.
In R v Counihan [2024] EWCA Crim 799, a barrister and a solicitor each disclosed the contents of an embargoed judgment to their lay clients. The Court of Appeal took the breaches extremely seriously but ultimately determined that it was not necessary to institute contempt proceedings.
The mens rea requirement – intention to interfere with the due administration of justice?
It is notable that in the Menon case, Johnson J expressly declined to decide whether an intention to create a real risk of impeding the administration of justice forms part of the mental element of a criminal contempt of court arising from alleged disobedience of a trial judge.
The mens rea of criminal contempt has bedevilled the courts for many years, not least because of the variety of facts giving rise to contempt proceedings, which sometimes involves breaches of court orders or directions and sometimes involves other types of conduct.
The schedule to Nicklin J’s order articulating the contempt charges reflects some of that uncertainty or debate. It sets out particulars of the alleged contempts and alleges that Mr Menon KC ‘acted deliberately, in the knowledge of the Court’s rulings and directions’ but that further or alternatively, Mr Menon KC ‘deliberately breached those rulings and directions knowing that this conduct would create, or was capable of creating, a real risk of impeding the administration of justice’ (emphasis added).
In Weston v Central Criminal Courts Administrator, Lord Denning MR suggested that, at least in the case of non-attendance at a hearing without the additional feature of an order requiring attendance, such a specific intent may be required:
‘I have no doubt that if a solicitor deliberately fails to attend with intent to hinder or delay the hearing, and doing so he would be guilty of a contempt of court. … But in this case the conduct of the solicitor was not done with intent to hinder or delay the hearing…’ (emphasis added, p. 43).
In Re West– again concerning non-attendance at a hearing, albeit one the barrister had been ordered to attend and where he engaged in argument with the judge, the Court of Appeal cited with approval the words of Lloyd LJ in Attorney General v Newspaper Publishing plc [1988] Ch 333:
‘the mens rea required in the present case is an intent to interfere with the course of justice. As in other branches of the criminal law, that intent may exist, even though there is no desire to interfere with the course of justice. Nor need it be the sole intent. It may be inferred, even though there is no overt proof. The more obvious the interference with the course of justice, the more readily will the requisite intent be inferred’.
Although its comments on this point were obiter and the facts were more extreme than in Weston, the Court of Appeal in Re West appeared not to treat a finding of specific intention as necessary for a finding of contempt.
In Crosland, the Supreme Court directly addressed the mens rea requirement of criminal contempt in the context of an embargo breach (which can be conceptualised as a species of disobeying a court order). It concluded that it was not necessary to prove an intention in that type of case to interfere with the administration of justice (although in any event the court was satisfied that the respondent had such an intention).
In reaching this view, the Supreme Court cited Solicitor General v Cox [2016] EWHC 1241 (QB); [2016] 2 Cr App R 15, where the Divisional Court held that a specific intent to interfere with the due administration of justice was not required for a finding of criminal contempt in a case where the respondents had taken photos in court despite notices telling court users not to do so. There, the court stated that the deliberate breach of a court order of which the contemnor had notice would suffice, before commenting that “it is not necessary that the person additionally intended by his breach to interfere with the administration of justice” (emphasis added, para. 73). Whilst it can be argued that the case removed the need for some sort of “ulterior motive” on its facts, it did not remove the need for the contemnor to have deliberately acted in breach of a court order.
The Court of Appeal in Counihan did not explicitly engage with the mens rea requirement for criminal contempt, but one factor taken into account in the court’s decision that it was not necessary to institute proceedings was that the lawyers were not conscious that they were breaching the embargo when they did so.
Conclusion and looking ahead
Practitioners in this area will no doubt follow the outcome of the substantive proceedings against Mr Menon KC with interest because of the issues that the case throws up.
One tricky issue where a court is considering laying contempt charges against a professional is where the court’s jurisdiction should end, and the professional regulators’ role should begin. That is why many cases to date have culminated in referrals to regulators rather than full blown contempt proceedings.
It is also to be hoped that the judgment in Mr Menon KC’s matter brings further clarity as to the mens rea requirement for different types of conduct in criminal contempt, although the highly fact-specific and exceptional circumstances of these proceedings mean that any conclusions as to the law may be of limited relevance outside of the rare context of allegations of contempt regarding a barrister’s closing speech.
© Helen Evans KC, Samuel Cuthbert, Ryan Fincham, 4 New Square Chambers, July 2026
This article is not intended as a substitute for legal advice. Advice about a given set of facts should always be taken.
[1] Described in the later judgment of 22 June 2026 here.
[2] This concept was recently considered by the Court of Appeal in Webster v R [2026] EWCA Crim 9, a case where posters displayed in the vicinity of the court building had told jurors they had a right to acquit for any reason they chose, and protestors near the entrance to the court building had held placards stating: “JURORS YOU HAVE AN ABSOLUTE RIGHT TO ACQUIT A DEFENDANT ACCORDING TO YOUR CONSCIENCE”. The trial judge had directed the jury that “it is a criminal offence for a juror to do anything from which it can be concluded that a decision will be made on anything other than the evidence in the case” and suggested that the posters and placards mis-stated the law. The defendants in the original trial were convicted (for criminal damage at JP Morgan Chase Bank in connection with an “Extinction Rebellion” protest) and sought to appeal on the basis that the trial judge had gone too far in those directions. The Court of Appeal upheld the convictions.
[3] See the factual summary in the Court of Appeal’s judgment here.
[4] The expression “criminal contempt” refers to behaviour that interferes with the administration of justice. It is to be contrasted with “civil contempt” which relates to a breach of a court order directed to the contemnor and made to protect a private party’s rights.
[5] Even though the procedural default by the court was likely to have made little difference to the outcome, the court held that it was ‘far more important to underline the vital importance, where issues of contempt arise in circumstances of this nature, of following the approach laid down by the CrimPR’ (para 35).
[6] At para. 52 the court said “Mr West’s conduct constituted wilful and deliberate disobedience of an order of the court as an act of defiance which is serious misconduct of a type that is wholly inimical to the proper discharge of his professional duties and, furthermore, in total disregard of his duty to the court. He has shown breathtaking arrogance and his demand that the judge apologise to him was more than merely impertinent. This conduct should be considered by the Bar Standards Board to which we direct that a copy of this judgment should be sent.”
