P (by Her Litigation Friend, the Official Solicitor) v Dahlia Griffith
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 02 October 2020 |
| Neutral Citation | [2020] EWCOP 46 |
| Court | Court of Protection |
| Docket Number | Case No: 1344811T |
| Date | 02 October 2020 |
[2020] EWCOP 46
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice MacDonald
(Sitting in Public)
Case No: 1344811T
Ms Sarah Simcock (instructed by the Official Solicitor) for the Applicant
Mr Adam Tear (of Scott-Moncrieff & Associates Ltd) for the Respondent
Hearing dates: 29 September and 2 October 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
In this matter, I am concerned with an application by P acting through her litigation friend the Official Solicitor for an order committing Ms Dahlia Griffith to prison for contempt arising out of her alleged interference with the due administration of justice. On 31 January 2020 the court granted P permission to make her application for committal of Ms Griffith. The applicant is represented by Ms Simcock of counsel. Ms Griffith has not attended the hearing in circumstances I will come to below but is represented by her solicitor advocate, Mr Adam Tear.
The grounds for the application to commit Ms Griffith are set out as follows in the application form issued on behalf of P:
“[Dahlia Griffith] falsified a court order and presented this in support of her request in order to obtain disclosure of confidential medical records of P. [Dahlia Griffith] conduct in falsifying a court order is a contempt of court, being an interference with the due administration of justice, as well as a breach of the court order(s) of HHJ Hilder of 22 August 2019 dismissing [Dahlia Griffith's] application for disclosure of P's medical records.”
The evidence in support of the application for committal is before the court in the form of an affidavit of Nicola Mackintosh QC (Hon), an affidavit of Kris Jackson and an affidavit of Marian Shaughnessy. At the last adjourned final hearing I directed, with the consent of all parties, a further statement from Nicola Mackintosh QC dealing with those questions that Mr Tear on behalf of Dahlia Griffith wished to put to Ms Mackintosh, Mr Tear having confirmed that the scope of the challenge he was instructed to make to the evidence filed and served with respect to the committal application was sufficiently limited to render this a just and proportionate approach.
The process of committal for contempt is a highly technical one. Within this context it is important, in circumstances where the liberty of the citizen is at stake, to recall at the very outset the strict procedural requirements of a properly constituted committal hearing that have to be complied with, which principles apply with equal force in the Court of Protection.
Within this context, and in addition to having regard to the provisions of the Court of Protection Rules 2017 r. 21.28, I have also borne in mind the following requirements:
i) The committal application must be dealt with at a discrete hearing and not alongside other applications.
ii) The alleged contempt must be set out clearly in a notice of application or document, the summons or notice identifying separately and numerically each alleged act of contempt.
iii) The application notice or document setting out separately each alleged contempt must be proved to have been served on the Respondent in accordance with the rules. Where the committal hearing is adjourned personal service of the adjourned hearing is required unless the respondent was in court at the time of the adjournment.
iv) The Respondent must be given the opportunity to secure legal representation as he or she is entitled to.
v) The committal hearing must be listed publicly in accordance with the Lord Chief Justice's Practice Direction: Committal / Contempt of Court – Open Court of 26 March 2015 (and as amended on 20 August 2020) and should ordinarily be held in open court.
vi) Consideration must be given to whether the allocated judge should hear the committal or whether the committal application should be allocated to another judge.
vii) The burden of proving the alleged contempt lies on the person or authority alleging the contempt.
viii) The Respondent is entitled to cross examine witnesses, to call evidence and to make a submission of no case to answer.
ix) The alleged contempt must be proved to the criminal standard of proof, i.e. beyond reasonable doubt.
x) The Respondent must be advised of his or her right to remain silent and informed that he or she is not obliged to give evidence in his or her own defence.
xi) Where a contempt is found proved on the criminal standard the committal order must set out the findings made by the court that establish the contempt.
xii) Sentencing should proceed as a separate and discrete exercise, with a break between the committal decision and the sentencing of the contemnor. The contemnor must be allowed to address the court by way of mitigation or to purge his or her contempt.
xiii) The court can order imprisonment (immediate or suspended) and / or a fine, or adjourn consideration of penalty for a fixed period or enlarge the injunction.
xiv) In sentencing the contemnor the disposal must be proportionate to the seriousness of the contempt, reflect the court's disapproval and be designed to secure compliance in the future. Committal to prison is appropriate only where no reasonable alternative exists. Where the sentence is suspended or adjourned the period of suspension or adjournment and the precise terms for activation must be specified.
xv) The court should briefly explain its reasons for the disposal it decides.
In this case, I am satisfied that each of the aforesaid procedural imperatives has been met. In this case, the court is also faced with a preliminary issue in circumstances where Ms Griffith has again failed to attend the final hearing of the committal application notwithstanding that she has had proper notice of the same, she also having failed to attend the final hearing listed on 1 September 2020. On that occasion, having been informed by Mr Tear that Ms Griffith was stating she was too ill to attend court, I adjourned the final hearing to allow her to provide medical evidence to that effect. Ms Griffith failed to supply that evidence and her further failure to attend the first stage of this hearing remained unexplained despite attempts by Mr Tear to contact her ahead of the matter being called on.
The relevant legal principles on whether the court can proceed with a committal hearing in the absence of the Respondent were summarised by Cobb J in Sanchez v Oboz [2015] EWHC 235 (Fam). Namely:
i) Whether the Respondent has been served with the relevant documents, including the notice of this hearing.
ii) Whether the Respondent has had sufficient notice to enable her to prepare for the hearing.
iii) Whether any reason has been advanced for the respondent's non-appearance.
iv) Whether by reference to the nature and circumstances of the respondent's behaviour, they have waived their right to be present (i.e. is it reasonable to conclude that the respondent knew of, or was indifferent to, the consequences of the case proceeding in their absence).
v) Whether an adjournment would be likely to secure the attendance of the Respondent, or at least facilitate their representation.
vi) The extent of the disadvantage to the Respondent in not being able to present her account of events.
vii) Whether undue prejudice would be caused to the applicant by any delay.
viii) Whether undue prejudice would be caused to the forensic process if the application were to proceed in the absence of the respondents.
ix) The terms of the overriding objective to deal with cases justly, expeditiously, and fairly.
In considering these factors, the court must bear in mind that committal proceedings are essentially criminal in nature and the court should proceed in the absence of the accused with great caution, that findings of fact are required before any penalty can by imposed and the presumption of innocence applies penalty of imprisonment for a proven breach of an order is one of the most significant powers of a judge exercising the civil/ family jurisdiction and that Arts 6(1) and 6(3) ECHR are actively engaged, entitling the respondent to, inter alia, a ‘fair and public hearing’ and to ‘have adequate time and the facilities for the preparation of his defence.’
Having given careful consideration to the factors articulated in Sanchez v Oboz I am satisfied it is appropriate to proceed with the final hearing of the committal application in the absence of Ms Griffith. Ms Griffith has had proper notice of these proceedings and has had proper notice of this hearing, which was listed to provide a further period of 14 days' notice to Ms Griffith following the adjourned hearing on 1 September 2020. Within this context, I am satisfied that Ms Griffith has had sufficient notice to enable her to prepare for the hearing and, as I have noted, she remains legally represented at this hearing. In addition to no credible reason being advanced for her failure to appear today, Ms Griffith has also failed to provide any medical evidence in support of her contention that she was too ill to attend the adjourned committal hearing on 1 September 2020. Within this latter context, I have no confidence that a further adjournment would be likely to secure her attendance. At the last hearing, and again at this hearing, Mr Tear confirmed that Ms Griffith intended to exercise her right to silence in respect of the contempt alleged and would rely on the challenges made by Mr Tear to the evidence deployed by the applicant. Within this context, any disadvantage to Ms Griffith of not being able to give her account of events is mitigated....
To continue reading
Request your trial
-
Dahlia Griffith v P (by her Litigation Friend the Official Solicitor)
...to prison for contempt of court. 2 The background is fully set out in the judgment of MacDonald J (‘the Judge’), which is to be found at [2020] EWCOP 46. The Appellant is a relative of P, a woman who is in a specialist hospital with a permanent disorder of consciousness. There were proceedi......
-
Committal for Contempt of Court: Hayes v Butters
...8. The Court also took into account the judgment of Macdonald J in P (by her Litigation Friend, the Official Solicitor) -v- Griffith [2020] EWCOP 46. The judge stated that in sentencing the contemnor the disposal must be proportionate to the seriousness of the contempt, reflect the court’s ......