Delaney v Delaney
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Date | 1996 |
| Year | 1996 |
| Court | Court of Appeal (Civil Division) |
SIR THOMAS BINGHAM, MR AND SIR JOHN BALCOMBE
Contempt – contemnor committed to prison following finding of guilt against him – committal to fixed date – contemnor to be returned to court on fixed date for sentence – whether court had jurisdiction to remand in custody pending sentence.
On 30 August 1995, an order was made against the husband forbidding him from committing any violence against his wife and from threatening, harassing or pestering her. The order (to which a power of arrest was attached), was determined on 6 September 1995. At the further hearing on 6 September 1995, the matter was disposed of on the husband's undertakings, which were to remain binding until decree absolute or further order.
On 26 September 1995, the wife issued a notice for the husband to show cause why he should not be committed to prison for contempt, alleging violence of a potentially serious kind, including a threat to kill her. The allegations were denied in part by the husband. On 5 October 1995, a county court Judge found the husband guilty of contempt. The husband was committed to prison until 20 October 1995, on which date he would be sentenced, the adjournment enabling a report from the probation service to be obtained in the meantime, as the Judge was concerned about the effect which the sentence might have upon the children of the two parties. The order, as drawn, did not appear to give the husband an opportunity to apply to the court to purge his contempt and seek his release.
The husband appealed contending that the order which the Judge had made did not amount to a sentence for a fixed term, as required by s 14(1) of the Contempt of Court Act 1981, or that, if it was such a sentence, the Judge had exhausted his sentencing powers on 5 October and could not impose any further sentence upon the husband when he returned to court on 20 October.
Held – allowing the appeal: Cases arose in which there was an immediate need to protect the victim of a contempt against further aggressive and unlawful conduct on the part of a contemnor and it was important that such orders should be effective. There were cases, however, where it might be difficult for the Judge to determine the appropriate sentence. The order made on 5 October was intended to be an order committing the husband to prison and it was clearly the intention of the Judge that the husband should be returned to court on 20 October to be sentenced or further sentenced for his contempt. There was, however, no power (aside from cases of contempt in the face of the court) to detain or remand in custody either pending proof of contempt or after proof and before sentence, and the order made by the Judge was accordingly bad. Where the sentencing Judge was uncertain what term of imprisonment to fix then, subject always to the contemnor's right to apply to purge,
he could impose a sentence at the top end of the appropriate bracket whilst at the same time directing that the matter be restored for further hearing after a suitable period. At that hearing the Judge could affirm the original order and leave the contemnor in prison or indicate an earlier date for release than that originally fixed (subject in both instances to the contemnor's right to purge) or the Judge could order the immediate release of the contemnor. In the present case the committal order was defective as it did not specify a fixed term of imprisonment as required by s 14(1) of the Contempt of Court Act 1981 nor did it inform the contemnor of his right to apply to purge his contempt. As a result of the defects in the committal it would be quashed. The Judge had rightly found that this was a very serious contempt which could well have led to more serious violence and justified a substantial sentence. However, the story had moved on since it was before the Judge. The husband had served the equivalent of a sentence of seven-and-a-half weeks; this had been a salutary experience for him, and the welfare officer had reported that he was deeply remorseful and expressed his genuine regret for his breach of his undertaking. In the circumstances a sentence would be imposed of six months' imprisonment suspended for 18 months or until decree absolute or expiry of the undertaking whichever was the soonest.
Statutory provisions referred to:Administration of Justice Act 1960, s 13.
Contempt of Court Act 1981, ss 12 and 14.
County Courts Act 1984, s 118.
Criminal Justice Act 1967, ss 67 and 104.
Criminal Justice Act 1991, ss 33, 40, 41, 44 and 45.
Domestic Violence and Matrimonial Proceedings Act 1976, s 2.
Family Proceedings Rules 1991, r 3.9.
RSC Ord 52, r 8(1).
Cases referred to in judgment:B (Minors) (Wardship: Power to Detain), Re[1994] 2 FCR 1142.
D (A Minor), Re (unreported), 15 April 1994.
Duo v Osborne (formerly Duo)[1992] 2 FCR 583; [1992] 1 WLR 611.
Howes v Howes[1992] 2 FCR 287.
Lamb v Lamb (1983) 5 FLR 278.
Linnett v Coles [1987] QB 555; [1986] 3 WLR 843; [1986] 3 All ER 652.
M v P (Contempt of Court: Committal Order)[1993] 1 FCR 405; [1993] Fam 167; [1992] 3 WLR 813; [1992] 4 All ER 833.
Practice Direction (Contempt of Court: Committal) (unreported), 23 January 1980.
Practice Direction (Domestic Violence: Procedure on Arrest) [1991] FCR 589; [1991] 1 WLR 278; [1991] 2 All ER 9.
Roberts v Roberts [1991] FCR 590.
Vaughan v Vaughan [1973] 1 WLR 1159; [1973] 3 All ER 449.
Yager v Musa [1961] 2 QB 214; [1961] 3 WLR 170; [1961] 2 All ER 561.
Phillipa Eade for the applicant husband.
James Munby, QC as amicus curiae.
The wife did not appear and was not represented.
SIR THOMAS BINGHAM, MR.The fundamental issue arising in this appeal is whether a Judge sitting in a 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, L JJ 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 summarized 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...
To continue reading
Request your trial
-
Wilkinson v S and another
...3 All ER 283, [1975] QB 73, [1974] 3 WLR 314, CA. Barnet London BC v Hurst[2002] EWCA Civ 1009, [2002] 4 All ER 457. Delaney v Delaney[1996] 2 FCR 13, [1996] 1 All ER 367, [1996] QB 387, [1996] 2 WLR 74, CA. DPP v Channel Four Television Co Ltd [1993] 2 All ER 517, DC. Hale v Tanner[2000] 3......
-
Harris v Harris (No 2)
...for the conditional order made by the judge. The appeal would, accordingly, be allowed. Cases referred to in judgmentsDelaney v Delaney[1996] 2 FCR 13, [1996] QB 387, [1996] 1 All ER 367, [1996] 2 WLR 74, [1996] 1 FLR 458, Villiers v Villiers[1994] 2 FCR 702, [1994] 2 All ER 149, [1994] 1 W......