Harris v Harris (No 2)
| Jurisdiction | England & Wales |
| Judgment Date | 2001 |
| Date | 2001 |
| Court | Court of Appeal (Civil Division) |
Contempt of court – Committal – Application to purge contempt – Whether court releasing contemnor having jurisdiction to impose suspended sentence in respect of unserved balance of prison sentence.
The appellant, who had a long history of litigation in the family justice system, principally on the issue of contact, was sentenced to ten months’ imprisonment for contempt of court involving various breaches of injunctions made to protect the appellant’s former wife and children. The appellant’s appeal against that sentence was dismissed, and two applications to purge his contempt were refused. He made a third application to purge his contempt, seeking either immediate release or, alternatively, release on the basis that the remaining part of his sentence should be suspended. The judge acceded to the application on the second basis, and ordered that the appellant should be released forthwith on terms that the execution of the remaining part of his sentence be suspended for nine months on condition that the appellant obeyed the terms of the injunctions contained in the injunction order. The appellant appealed against that decision, submitting that a contemnor applying to purge his contempt faced only three possible outcomes, namely, immediate release; deferred release at a stated future date; or the refusal of his application, and that the court had no power to vary the original sentence or to impose a fresh sentence. Counsel instructed as amicus curiae argued that apart from limited statutory restrictions, the powers exercised by the judge were unbounded common law powers and that, 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.
Held – The judge did not have jurisdiction to make the order as drawn. The application to purge a contempt was rooted in quasi-religious concepts of purification, expiation and atonement. On such an application the judge might only say yes, no, or not yet. It was of great importance that the powers of the court and the rights of the contemnor should be as clear and as certain as was consistent with the need to design orders that did justice and reflected the infinite variety of fact and circumstance displayed by individual cases. Whilst the power to create, sometime after the imposition of the original sentence, a sentence partly immediate and partly suspended would arguably be a useful refinement, the gain would be outweighed by the introduction of complications to a contemnor’s judgment as to whether or not to apply to purge, and could risk an increase of litigation in an already over-burdened field. Moreover, it could not be said with
any certainty that the order made by the judge represented a variation of the original sentence rather than the imposition of a fresh penalty. The only power to suspend was the power under RSC Ord 52 r 7(1) to suspend the execution of the first order of imprisonment. The court’s choice was only between a warrant to be immediately executed or a warrant to be suspended. That choice was made at the sentencing hearing and did not recur. Furthermore, even if the order made by the judge could be accepted as a variation of the original order committing the appellant to prison, it was by no means clear that it was a variation by way of amelioration. The principle that variation had to be by way of amelioration was important, and the amelioration had to be self-evident and almost irrefutable. In the instant case, the judge having clearly been satisfied that there had been a measure of atonement, the only realistic disposal was to substitute an order for unconditional release 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, CA.
Villiers v Villiers[1994] 2 FCR 702, [1994] 2 All ER 149, [1994] 1 WLR 493, [1994] 1 FLR 647, CA.
AppealThe appellant, Mark Harris, appealed from the decision of Munby J on 21 June 2001, ordering the appellant be released from custody for contempt of court on terms that the remaining part of his sentence be suspended.
Mark Twomey for the applicant.
Richard Ritchie appeared as amicus curiae.
The respondent did not appear and was not represented.
THORPE LJ.[1] 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...
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