Delaney v Delaney
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,SIR JOHN BALCOMBE,THE MASTER OF THE ROLL |
| Judgment Date | 24 October 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J1024-10 |
| Date | 24 October 1995 |
| Court | Court of Appeal (Civil Division) |
[1995] EWCA Civ J1024-10
(His Honour Judge Sheerin)
Before: The Master of the Rolls (Sir Thomas Bingham) and Sir John Balcombe
IN THE SUPREME COURT OF JUDICATURE
Pro Forma
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CAMBRIDGE COUNTY COURT
MISS P EADE (instructed by Messrs Ruston & Lloyd, Newmarket) appeared on behalf of THE APPELLANT
MR J MUNBY QC (instructed by The Official Solicitor) appeared as AMICUS CURIAE
Tuesday 24 October 1995
THE MASTER OF THE ROLLSThe fundamental issue arising in this appeal is whether a judge sitting in the County Court, who has convicted a party of contempt in breaching an order of, or an undertaking given to, the court can in effect remand that party in custody pending consideration of the appropriate sentence for contempt. This issue was last before the court (Henry and Thorpe LJJ and myself) on 16 October. Counsel representing the contemnor on that occasion presented a cogent argument to the effect that no power to remand in custody existed. The court felt that that issue might be of considerable practical importance and accordingly invited the Official Solicitor to instruct an amicus to address us on the question, with particular reference to the public interest considerations involved. The Official Solicitor responded with impressive speed and we are grateful to Mr Munby QC who has appeared as amicus this morning and discharged his task with his customary learning and fairness.
The facts giving rise to this issue were summarised by me in my judgment on 16 October and in effect I repeat this summary. On 30 August 1995 Mrs Delaney applied, in the Cambridge County Court, for an injunction against her husband Mr Delaney to restrain him from assaulting, molesting or otherwise interfering with her. She supported that application with an affidavit, sworn on 30 August, in which she gave an account of a history of serious violence between herself and her husband. The matter came before the court on that very day, 30 August, and an order was made forbidding Mr Delaney from committing any violence against his wife and from threatening, harassing or pestering her. That order was to remain in force until 6 September, unless earlier revoked, and a power of arrest was attached to the order. At that hearing on 30 August Mrs Delaney gave oral evidence going beyond what was contained in her affidavit and the judge accordingly ordered that that additional evidence should be put into affidavit form, which it duly was. Mr Delaney swore an affidavit in answer some days later, admitting that there had been some violence in his relationship with Mrs Delaney, but challenging her account of the facts in a number of respects and offering to give undertakings. When the hearing took place on 6 September the matter was disposed of on undertakings by Mr Delaney not to use violence to his wife, not to threaten, harass or pester her and not to communicate with her, save through her solicitors. Those undertakings were to remain binding until decree absolute or further order. The court explained to Mr Delaney the likely consequences if he broke his undertaking and he signed the form to indicate that he understood the effect of a breach of his undertaking, and further understood that such breach might lead to his being sent to prison.
The matter did not, unhappily, end there. On 26 September events took place which caused Mrs Delaney to issue a notice to show cause why Mr Delaney should not be committed to prison for contempt. She swore an affidavit in which she described violence of a potentially serious kind. Put very shortly, she deposed that Mr Delaney hid himself in the back of her car. When she came to put some articles in the car his presence became known. She says that he pushed her, threatened her with some scissors, said that he had a gun in the boot and would kill her, and that he grabbed her. According to her, Mr Delaney kept on repeating that he would kill her and that if her father came out he would stab her. Mr Doyle, Mrs Delaney's father, witnessed certain parts of this unhappy scene. Mr Delaney filed a notice denying the allegations made by Mrs Delaney in part and he swore an affidavit.
The matter came before His Honour Judge Sheerin in the Cambridge County Court on 5 October. The judge heard evidence from Mrs Delaney and from her father, Mr Doyle, and he also heard evidence from Mr Delaney. He delivered a judgment in which he largely accepted the account given by Mrs Delaney and her father. The judge considered it more likely than not that Mr Delaney threatened to kill his wife with a gun. He rejected Mr Delaney's evidence and he observed that it was hard to imagine a more serious case. The learned judge then heard mitigation and towards the end of his judgment said this:
"I take a very serious view of these events. It was deliberate and frightening. It could have had more serious consequences. I do not doubt that emotional difficulties contributed substantially to the parties being here. But there is a lack of restraint and ability to behave under strain which also led to this. There was a breach of an order that had been made to prevent these events becoming serious. I am concerned about the children and so I have not made up my mind about the sentence.
A custodial sentence is inevitable. I commit the respondent to Bedford Prison, to come before me for sentence on Friday 20 October 1995 at 10 am. He will then be sentenced. I will need a prepared report of the probation service dealing with sentence and welfare of the children. The seriousness of the occasion is such that it demands custody now."
The order was then made. It is on County Court Form N79, headed 'Committal or Other Order upon Proof of Disobedience of a Court Order or Breach of an Undertaking' and it ordered that Mr Delaney be committed for contempt to Her Majesty's Prison at Bedford until 20 October 1995 or until lawfully discharged, if sooner, and that a warrant of arrest and committal be issued forthwith. The form itself then contains a sentence which is deleted in the form of the order as drawn up, but which as printed reads "And the contemnor can apply to the (court) (judge) to purge his contempt and ask for release". It was then ordered that Mr Delaney be produced by the Governor of Bedford Prison at Cambridge County Court on Friday 20 October at 10 am. On the back of the form in the appropriate box it is entered that the court was satisfied, having considered the facts disclosed by the evidence, that Mr Delaney had been guilty of contempt of court by breaking his undertaking given on 6 September, of which details were given. It continues: "And for the particular contempt the court imposed the penalty of: custodial sentence forthwith to be further considered on Friday 20 October 1995."
The judge's reasons for making the order that he did are quite plain. He regarded this as a very serious case of contempt and that was obviously a just conclusion. Secondly, he judged that Mr Delaney was a man who, in his then emotional state, would be liable to repeat the serious breach which he had committed if he remained at liberty. The judge had in mind the necessity to protect Mrs Delaney and felt that that end was best achieved if Mr Delaney was out of circulation for a period.
However, the judge was concerned about the position of the children. As he recorded in his judgment, there were two children, a daughter aged 10 who at that time had been living with Mrs Delaney, and a son of 13 who had been living with Mr Delaney. The judge no doubt was primarily concerned to ensure that the orders of the court were observed and that those for whose protection the orders had been made should be appropriately protected. But he also, as his remarks indicated, thought it proper to have some regard to the effect on the children and the family as a whole and felt that it would assist him in imposing the appropriate sentence if he had the assistance of a welfare report on Mr Delaney's circumstances.
That order made by the judge was the subject of criticism by Miss Eade who appeared on 16 October for Mr Delaney and still represents him. Her fundamental and main submission was that the order which the judge had made did not amount to a sentence for a fixed term, which is what section 14(1) of the Contempt of Court Act 1981 requires and so, she submitted, it was not a lawful sentence under the Act. If, however —and this was the other part of her pincer argument —it was a sentence for a fixed term, then the learned judge had exhausted his sentencing power and could not, when Mr Delaney returned on 20 October, impose a further sentence upon him. To do so, she submitted, would conflict with Lamb v Lamb, an authority to which I shall make further reference.
On 16 October the court recognised the force of Miss Eade's argument and was concerned as to whether there might be a lacuna in the powers of the court. The court felt that cases do arise in which there is an immediate need to protect the victim of a contempt against further aggressive and unlawful conduct on the part of a contemnor, bearing in mind that, where courts make orders to protect parties who have successfully invoked the jurisdiction of the court, it is important that those orders should be effective. Otherwise the processes of law fall into disrepute. The court was, however, mindful that cases do arise where it may be very hard for a judge to determine the appropriate sentence, even though the enforcement of orders is the prime object and the personal circumstances of the contemnor are a...
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