Harris v Harris
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE WALLER,LORD JUSTICE MANTELL |
| Judgment Date | 08 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1645 |
| Docket Number | B1/2001/1420 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 November 2001 |
[2001] EWCA Civ 1645
Lord Justice Thorpe
Lord Justice Waller and
lord Justice Mantell
B1/2001/1420
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
(MR JUSTICE MUNBY)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mark Twomey (instructed By Messrs Thornleys Of Plymstock, Devon Pl9 7az) Appeared For The Applicant.
Richard Ritchie (instructed By The Treasury Solicitors Of London) Appeared As Amicus Curiae.
The Respondent Did Not Appear And Was Not Represented.
For about the last three years Mr Harris has been an embattled litigant in the family justice system. With the passage of time the battle has intensified. Very considerable sums of public money have been spent, principally on the issue of contact. Many judges of the Family Division have had a hand in the case. On many occasions orders have been made restricting Mr Harris' ordinary rights in order to protect either his former wife or his children. Self-evidently Mr Harris has never accepted the court's authority and there have been numerous breaches leading to regular applications for committal. The last Family Division judge to deal with the case was Munby J. He delivered a comprehensive judgment reviewing the whole history of the proceedings on 22 March 200On the following day for various breaches of injunctions he imposed sentences, including a sentence of ten months imprisonment.
Many of the judges of this court have also dealt with the case and on 2 May 2001 my lord, Lord Justice Waller, presided in a constitution that dismissed Mr Harris' appeal against that prison sentence. In the interim Mr Harris had made two unsuccessful applications to Munby J to purge his contempt. Mr Harris applied for permission to appeal other orders made by the judge on 22 or 23 March and that application was refused by another constitution of this court on 2 July.
However on 14 June Mr Harris made his third application to Munby J to purge his contempt. In letters written to the judge Mr Harris had sought immediate release alternatively release on the basis that the remaining part of his sentence should be suspended. Munby J, who has particular expertise in this field, recognised that an application for conditional release under a suspended sentence of imprisonment raised a difficult point of law and accordingly invited the Attorney General to instruct counsel on the application as a friend of the court. Thus on 14 June the judge heard from Mr Harris in person and Mr Richard Ritchie instructed by the Attorney General.
After hearing submissions the judge acceded to Mr Harris' alternative application. The order dated 14 June and perfected on 19 June reads in its essential paragraph:
"It is ordered that the applicant having today conditionally purged his contempt be released forthwith today (14 June 2001) from prison on terms that and it is further ordered that execution of the remaining part of the said sentence of imprisonment be suspended for nine months until 14 March 2002 when this order and the committal order shall cease to have effect on condition that until 14 March 2002 the applicant complies with the following terms namely that the applicant obeys the terms of the injunctions contained in the injunction order."
The judgment explaining the judge's reasons for finding jurisdiction to make and for making that order were subsequently handed down on 21 June 2001. On 2 July this court, whilst refusing all other applications for permission to appeal, granted permission to appeal the order of 14 June, if permission were required. Subsequently the Attorney General was asked to instruct Mr Ritchie to repeat his assistance to the court on the point of law. Fortunately Mr Harris has received legal aid for this hearing and his case has been exceptionally well put by Mr Twomey. Mr Ritchie has equally performed his function in exemplary fashion in presenting the arguments for and the arguments against the conclusion that the order of Munby J rests on a secure legal foundation. There has been no challenge to the judge's exercise of discretion. Mr Twomey conceded that if the judge had the power to make the order it was plainly within the discretionary range.
Thus this appeal raises the short point: can a court releasing a contemnor on his application to purge his contempt impose a suspended sentence in respect of the unserved balance of the prison sentence and, if yes, for what period can the court order the suspension to run.
As I understand it Mr Harris' original complaint was that the suspended sentence which he had invited should not have been made to run beyond 22 August (the realistic date of his release from the sentence imposed on 23 March) or certainly beyond 22 January 2002 (the theoretical date of his release). However Mr Twomey attacked the judge's conclusion root and branch. His first and simple submission is that a contemnor applying to purge his contempt faces only three possible outcomes:
i) Immediate release
ii) Deferred release at a stated future date
iii) The refusal of his application
If the outcome is either ii) or iii) above then the order giving effect to that conclusion will clearly state his continuing right to reapply to purge. Whilst Mr Twomey accepts that the court has power to renew orders for protection, make fresh orders for protection or require undertakings from the applicant in acceding to the application to purge, he submits it has no power to vary the original sentence, other than in the manner indicated above, and has no power to impose a fresh sentence.
His second submission is that in the event that the court did have such jurisdiction, it did not permit the suspension of the sentence beyond the period that the contemnor would actually have spent in prison had he served his sentence, alternatively, beyond the length of the original sentence as formally declared. Mr Twomey's third submission was that the elaboration devised by the judge was impermissible since the original order of committal of 23 March 2001 simply stated in a short paragraph following the sentencing paragraphs:
"And the contemnor Mark Dean Harris can apply to the judge to purge his contempt and ask for release."
That simple statement supported the submission that on an application to purge the judge's options were matchingly simple.
Mr Ritchie directed his written argument to points raised in Mr Twomey's second ground. However in his oral submissions he dealt with Mr Twomey's fundamental attack on jurisdiction stressing that, apart from limited statutory restrictions, the powers exercised by the judge were unbounded common law powers and in the absence of direct authority it was permissible, and indeed praiseworthy for a judge to evolve the common law imaginatively to increase the flexibility and sophistication of the court's powers. Having set out with great fairness the arguments for and against the appeal Mr Ritchie sought to uphold the judge simply because we received the contrary argument from Mr Twomey.
Before coming to my conclusions I will...
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