Hammerton v Hammerton
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Lord Justice Wall,Lord Justice Laws,Lord Justice Lloyd |
| Judgment Date | 12 April 2007 |
| Neutral Citation | [2007] EWCA Civ 248,[2007] EWCA Civ 465 |
| Docket Number | Case No: B4/2005/2138,Case No: B4/2007/0713 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 April 2007 |
[2007] EWCA Civ 248
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WOOLWICH COUNTY COURT
His Honour Judge Collins
WO0500010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Wall and
Lord Justice Moses
Case No: B4/2005/2138
Mr Charles Hale (instructed by Messrs Edwards Duthie) for the Appellant
Hearing date: 22 nd February 2007
Background
On 26 th and 27 th July 2005 His Honour Judge Collins CBE heard two applications concerning William Hammerton. The first was the application for contact with two of his children. The second was an application by his former wife for his committal to prison for breach of an undertaking given on 21 st December 2004 and for breach of an order made by the Woolwich County Court on 23 rd February 2005. Mr Hammerton was unrepresented. The judge chose to hear both applications at the same time. On the second day of the hearing, 27 th July 2005, the judge made an order for indirect contact. There is no appeal against that order. At the same time he committed Mr Hammerton to prison for three months. Mr Hammerton appeals against that decision.
The appeal was out of time but since the appellant was without legal representation whilst he was in prison we extended time. There was subsequent delay due to the difficulty the solicitors, who are instructed now, had in obtaining the necessary papers. Chief amongst these difficulties is the absence of any tape recording of a crucial part of the judge's judgment.
But this appeal concerns grave errors in procedure, which affected the whole of these proceedings. We do have a transcript of the proceedings and are, therefore, able to trace a series of procedural errors which deprived the appellant of the protection to which he was entitled before being sent to prison. These errors stem from a combination of the fact that the appellant was unrepresented and the decision of the judge to hear both Mrs Hammerton's application for committal and Mr Hammerton's application for contact at the same time. Before dealing with those errors I should identify such facts as are necessary for the disposal of this appeal.
The Facts
Mr and Mrs Hammerton were married on 1 st October 1977 and had five children, of which only two were the subject of the application by the appellant for contact. The parties separated in 2002. The last date the appellant had direct contact with the children was on 26 th December 2003. On the 9 th January 2004 the appellant issued his application for contact in the Woolwich County Court. The parties were divorced by decree absolute on 27 th August 2004.
The appellant undertook:—
“…not to contact or communicate with the Applicant, the Applicant's mother or father, nor her solicitors in any way whatsoever, neither send nor deliver to them any package or other missive and shall not encourage any other person to do so except through his own solicitors”.
On 23 rd February 2005 the Woolwich County Court ordered that the appellant was:—
“forbidden to use or threaten violence against the applicant Beverly Hammerton and must not instruct, encourage or in any way suggest that any other person should do so, and is forbidden to intimidate, harass, or pester the applicant Beverly Hammerton and must not instruct, encourage or in any way suggest that any other person should do so”.
On 6 th July 2005 Mrs Hammerton filed a Notice to Show Cause alleging nine breaches of the undertaking or the order. His Honour Judge Collins found only eight of the nine proven so it is unnecessary to set out more than those eight:—
“2. On 14 th May 2005 the Respondent received a letter directly from the Appellant;
3. On 31st May 2005 the Appellant telephoned the Respondent's solicitors on at least 12 occasions being threatening and abusive;
4. On 31 st May 2005 the Appellant telephoned the Respondent's parents over 30 times shouting abuse;
5. On 31 st May 2005 the Appellant attended at the Respondent's parents' home knowing that the Respondent was present at the property. The Appellant forced entry by kicking the door in and was abusive and made threats to the Respondent;
6. On 6 th June 2005 the Appellant telephoned the Respondent's solicitors on 2 occasions making threats;
7. On 7 th June 2005 the Appellant telephoned the Respondent's solicitors over 50 times being threatening and abusive;
8. On 7 th June 2005 the Appellant attended the Respondent's solicitors' office threatening and abusing members of staff;
9. On 14 th June 2005 the Appellant telephoned the Respondent's solicitors' office being threatening and abusive.”
The allegations identified at 2 and 5 concern breaches of the order. All the other allegations alleged breaches of the earlier undertakings.
As I have already recalled, the judge found those eight allegations proved and committed the appellant to prison for a period of three months.
Principles Relating to Committal
I should set out a number of principles in relation to committal hearings which are well settled. Those relevant to this appeal are:—
i) By virtue of s. 6 of the Human Rights Act 1998, it is unlawful for a court, as a public authority for the purposes of s. 6(3) of the 1998 Act, to act in a way incompatible with defendant's rights enshrined in article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). If any authority was needed for such a proposition, which it is not, it was expressed recently in R v Mustaq [2005] 2 Cr.Ap.R.32 p 485 at para 53 p 506. The need to ensure that the conduct of committal proceedings in family cases follows the precepts of the Human Rights Act 1998 is central to the Practice Direction (Family Proceedings: Committal) 2001 1 WLR 1253. This Practice Direction applied to the proceedings before HH Judge Collins in July 2005.
ii) Proceedings for committal are a criminal charge for the purposes of article 6 (see Re K (Contact: Committal Order) 2003 1 FLR 277 at para 21 p 282). Thus the defendant to such proceedings has the right enshrined in article 6(3)(c):—
“to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
That right is reinforced by the jurisprudence of the European Court of Human Rights in recognising that the interests of justice, in principle, call for legal representation when deprivation of liberty is at stake ( Benham v United Kingdom [1996] 22 EHRR 293 at 324). Such a right exists even where a defendant has parted company with one set of lawyers (see Re K per Hale LJ para 23) and see also Butler-Sloss P in Re: G (Contempt Committal) [2003] 2 FLR 58 at para 22 p 65). The obligation to afford a defendant representation imposed by virtue of article 6(3)(c) is not, however, unlimited. A defendant's intransigence in unreasonably failing to co-operate with whatever legal assistance is offered, or in refusing it, may make it impossible for legal assistance to be continued (see Re K per Mance LJ para 34). But absent such unreasonable behaviour, both article 6 and the decisions of this court make it plain that a defendant is entitled to be represented. If he is unrepresented then an adjournment should, save in circumstances of extreme urgency, be granted so that representation may be obtained.
iii) Since committal proceedings involve a criminal charge against a defendant, the burden of proving guilt lies on the person seeking committal (see article 6.2 of the Convention).
iv) A defendant to committal proceedings is not obliged to give evidence. His right against self-incrimination under article 6.1 applies with equal force to committal proceedings in the family courts as to any other criminal charge (see Re G para 22 and e.g., Saunders v United Kingdom [1996] 23 EHRR 313 and recently Lord Roger in R v Mustaq para 53 page 506).
v) In the event that the facts constituting contempt are proved, the seriousness has to be marked by reference not merely to the intrinsic gravity of the conduct, but also to secure compliance in the future. The courts must bear in mind that in family cases different considerations apply from other contempts; the parties are subject to heightened emotional tensions and there is often a need for family members to continue to be in contact with one another (see Hale v Tanner [2002] FLR 883 at paras 25 and 29 and Aquilina v Aquilina [2004] EWCA Civ 504 at para 10).
The Hearing: Procedural Errors in Proving Contempt
Despite these principles, neither the 1998 Act, nor the European Convention on Human Rights, nor the Practice Direction, still less any authority were drawn to the attention of the judge at any stage. This was no doubt, in part, due to the fact that Mr Hammerton was unrepresented. The judge was under an obligation, himself, to comply with provisions of the 1998 Act but was, perhaps, diverted from recollection of the well-established principles I have identified, by the fact that all the relevant files were lost in the Document Exchange in the transfer from Woolwich County Court to the Central London Civil Justice Centre. Counsel appearing for Mrs Hammerton on the first day was unfit to attend on the second and her substitute did not himself remind the judge of the relevant principles and authorities. It would be unfair to make any ad hominem criticism of him since Mrs Hammerton was unrepresented in these proceedings and we have had no explanation as to why the usual assistance offered by opposing counsel to a litigant in...
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