Alan Wilkinson and Lord Chancellor's Department and official Solicitor
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hale |
| Judgment Date | 04 February 2003 |
| Neutral Citation | [2003] EWCA Civ 95 |
| Docket Number | Case Nos: B1/2002/0006; 1305; 1306; 1307; 1308; 1309; 1310; 1636; 1637; 2591; 2592; 2593 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 February 2003 |
[2003] EWCA Civ 95
The Lord Chief Justice
Lady Justice Hale and
Lord Justice Latham
Case Nos: B1/2002/0006; 1305; 1306; 1307; 1308; 1309; 1310; 1636; 1637; 2591; 2592; 2593
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mrs Justice Bracewell), MANCHESTER COUNTY COURT
(HHJ David Harris QC)
LIVERPOOL COUNTY COURT
(HHJ Morgan, HHJ Duncan)
The Appellant appeared in person
The 1 st respondent mother did not appear and was not represented
Clive Sheldon (instructed by Lord Chancellor's Department) for the 2 nd Respondent
Hugo Keith (instructed by Official Solicitor) for the Intervenor
This is the judgment of the court. There are before us one substantive appeal and eleven applications for permission to appeal, although for reasons which will appear, in our judgment one of these should have been listed as a substantive appeal. [They all arise directly or indirectly out of proceedings between a father and mother relating to their children. We therefore direct that nothing calculated to lead to their identification may be published. This does not include the name of the appellant, their father, whose surname they do not bear.]
The main appeal
This is an appeal against two committal orders made by Bracewell J, in the Family Division of the High Court sitting in Manchester on 18 and 22 October. It raises issues of principle and practice concerning the powers of the High Court to deal with contempt in the face of the court.
On Thursday 18 October 2001, Bracewell J was giving judgment in a directions hearing in proceedings under the Children Act 1989 and under the Family Law Act 1986 relating to the children. She had decided that the two be consolidated and heard in the county court. While she was attempting to deliver her judgment, the appellant interrupted with foul and abusive language directed at the mother and her solicitor. The transcript records the following: 'You are fucking dead … You are fucking dead. She's fucking dead … I'll be fucking dead 'cause I'm going to the fucking devil and I'll take that bitch with me… ' There was more in that vein until the judge announced that she would retire for five minutes for him to decide whether or not to be quiet. He continued: 'Get me fucking taken out'. Then after the court adjourned: 'You're fucking dead. I'll kill you, you —… You fucking bastard. You think I'm laughing. Listen, I know where you live up fucking Sandbach and I'll burn your fucking house down and cut your (inaudible) off as well'.
The transcript then records that the appellant left court but returned to it. The judge described what happened next in the course of the hearing on 22 October:
"He was plainly out of control. He swept away the carafe of water, threatened the respondent's solicitor, and moved to attack the solicitor and the respondent, both of whom were obviously extremely frightened, and they covered their head with their hands in order to protect themselves. A police officer and two security guards by this time were in attendance, and they attempted to physically restrain [the appellant], with the assistance of [counsel for the respondent] and my clerk. I observed what happened during the course of a very violent struggle. [The appellant] had his arm round the neck of the police officer in such a tight arm lock that he was plainly unable to breathe and was in danger of losing consciousness. That was apparent from the change in his colour and demeanour and the way he was gasping for breath. It was a very violent and somewhat protracted struggle, and it required five people eventually to contain [the appellant] and to subdue him."
The judge therefore ordered that he be arrested and continued: 'He is remanded in custody forthwith and I shall assign a barrister to represent him and he will be dealt with for contempt in the face of the court.' She then continued with her judgment.
Mr Devlin, a very experienced and highly regarded solicitor, was assigned to represent the appellant and went to see him in the cells. Mr Devlin describes his state as 'catatonic', unable or unwilling to speak. He had been banging his head against the wall of the cell. It was not possible to get instructions from him in that state. The Official Solicitor has been informed that the court staff were of the view that he could not properly be contained in a court cell.
It was in those circumstances that the judge made the first of two orders under appeal. This was a warrant committing the appellant to HMP Manchester 'for a period yet to be determined for contempt of court. At the present to be remanded in custody.' The judge intended to hear the case as soon as possible and had arranged for it to be fitted in as soon as he and his solicitor were ready. Mr Devlin tried to arrange to see the appellant in prison but for reasons we do not know was unable to do so. The Official Solicitor understands that he was distressed in prison and so was not brought to court on Friday 19 October. On the Saturday he asked to see a solicitor with a view to applying for bail and seeking medical attention.
The case came back before Bracewell J on Monday 22 October. The judge acknowledged that she would be relying on her own recollection, but stated that counsel for the mother and the judge's clerk, both of whom had made witness statements, and the police officer involved were available to give evidence that afternoon if required. The judge also made it clear that the appellant had the right to give evidence if he wished. Mr Devlin assured the court that the appellant did not wish to do so or to challenge any description of what had occurred. The judge then gave the account quoted in paragraph 4 above so that Mr Devlin could address her on it.
Mr Devlin reiterated that, although the appellant could not recall saying or doing everything described, he did accept that his behaviour was absolutely and completely unacceptable. In mitigation Mr Devlin argued that the appellant had been so encouraged by appearing before a family judge of her eminence in a long running children dispute where he felt that his voice was not being heard. He was overcome by disappointment when it was sent back to the county court. He had recognised over the weekend that over the years the case had been going on he
'has become totally and utterly obsessed with the litigation, that it has become a campaign which has taken over his life … he realises that his behaviour will have caused his ex-partner to be terrified and that she will continue to be terrified of him. He feels that there are times when she is deliberately obstructive towards him, but even then he was able to say that he recognised that this may be his own perception of her, because he is so eaten up with the desire to see his children, which he is eventually realising is not going to happen.'
Mr Devlin urged upon the judge that the appellant had learned his lesson and that further immediate imprisonment was not required.
The judge went on to sentence him to six months' imprisonment. She explained:
"Mr Devlin has said everything that could possibly be said on your behalf … I have no doubt that you are obsessed with your litigation, as Mr Devlin has said, and that the litigation has been ongoing since 1998. It is, however, totally unacceptable for the business of the court to be disrupted in the way which occurred last Thursday. It was an extremely frightening incident for everyone who was in the court, and not just for those who were directly having to participate in order to try to restrain you. It was a prolonged piece of conduct on your part, and it was only because there were five people present that they eventually were able to subdue you …"
The appellant appears to have tried to launch an appeal while in prison but there was confusion over the appropriate court and forms. The Official Solicitor wrote informing him of his right to apply to purge his contempt. This he did and his application was granted on 19 November 2001. He was released that day. His application to this court for permission to appeal out of time was granted by Ward LJ and myself on 16 April 2002, in part because of the importance of the issues raised.
The Official Solicitor has intervened in the proceedings because of his role in relation to those imprisoned for contempt of court. We are most grateful to him, and to Mr Keith who represents him, for the helpful information and arguments he has put before the court. He does not, however, act for the appellant and has not taken instructions from him.
The appellant's grounds of appeal allege breaches of articles 5 and 6 of the European Convention on Human Rights and he seeks an award of damages for his wrongful detention. Accordingly the Lord Chancellor's Department has been joined to the proceedings pursuant to section 9(4) of the Human Rights Act 1998. Evidence has been filed both from Mr Devlin and from Mr Solly, a solicitor in the Department who met with the judge to discuss what had happened. Mr Sheldon, for the Department, has made representations on both the article 5 and article 6 aspects of the appeal, although in respect of a judicial act done in good faith there is only a claim for damages for breach of article 5.
Arguments in the appeal
Of the various arguments raised by the appellant, two are supported by the Official Solicitor and clearly have more substance than the others. While they can be put in terms of the ...
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