The Contempt of Court Act 1981 v Ravinder Balli (also Known as Ravinder Singh)
| Jurisdiction | England & Wales |
| Judge | HH Judge Simon Barker |
| Judgment Date | 15 July 2011 |
| Neutral Citation | [2011] EWHC 1865 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No. 9001 of 2011 |
| Date | 15 July 2011 |
[2011] EWHC 1865 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
The Priory Courts
33 Bull Street
Birmingham
B4 6DS
His Honour Judge Simon Barker QC
(sitting as a judge of the High Court)
Case No. 9001 of 2011
Mr Balbir Singh counsel instructed by Kangs solicitors
JUDGMENT (2)
HH Judge Simon Barker QC:
Background
On 1.7.11, I committed Mr Ravinder Balli, who refers to himself as and wishes to be known as Ravinder Singh (S), to prison for a term of 6 months for his contempt in the face of the court. My judgment in that case is available under the neutral citation number [2011] EWHC 1736 (Ch).
At the outset of this judgment, I should make a correction to the final paragraph of that judgment where I dealt with the effect of the sentence of imprisonment I imposed and said:
"I therefore impose a sentence of 6 months imprisonment for the contempt of court admitted by S. This means, in the ordinary way, ie subject to good behaviour, that 3 months will be served in prison and for the remaining 3 months S will be on licence".
I also referred to release "on licence" at paragraph 24 of that judgment. The observations relating to good behaviour and release on licence are incorrect. S258(2) of the Criminal Justice Act 2003 provides:
"As soon as a person to whom this section applies has served one-half of the term for which he was committed, it is the duty of the Secretary of State to release him unconditionally." (emphasis added).
Thus, the true effect of the sentence I imposed is that (1) irrespective of S's behaviour in prison, he is to be released upon serving 3 months (ie he is to be released on Friday 30.9.11), and further (2) S is not subject to release on licence and therefore is not at risk of being recalled to prison over the unexpired part of the following 3 months (ie to 31.12.11) in respect of the matters the subject of the committal in the event that he commits some other contempt or unlawful act during that period.
For my part, I do not believe that my erroneous explanation has caused any prejudice to S and therefore I do not consider myself to be under an obligation to release S immediately on that account. In my judgment, the sentence of 6 months was lawful; it was my explanation of its effect that was incorrect and contrary to statute. Mr Singh has said that that judgment has been widely circulated; so as to avoid the risk of future confusion, I shall cause my judgment of 1.7.11 to be corrected and to disclose the correction in footnotes.
On 1.7.11, I refused Mr Singh's application that I should suspend the committal of S pending an appeal. My primary reason was that I had no doubt as to the appropriate sanction for the admitted contempts; in addition, it seemed to me that one consequence of suspension pending appeal might be that it would give rise to an argument that such suspension had itself given rise to the raising of hopes, equivalent to a legitimate expectation, that a term of immediate imprisonment would not be imposed and that it would be unjust to dash such hopes; I had in mind, but could not then recall the reference to, a 1960's appeal case. I have now had an opportunity to locate the reference to the authority, it is In re W (B) (An Infant) [1969] 2Ch 50, Winn LJ at p.58.
On 5.7.11, Rimer LJ considered an on paper application to suspend the committal pending appeal, and dismissed the same. Rimer LJ did, however, order the expedition of S's appeal, to be heard as soon as possible after 12.7.11.
On 8.7.11, S's solicitors notified the Court of Appeal that his appeal would not be progressed and that S would instead apply to me to purge his contempt.
S's application to purge his contempt
By an affidavit dated 5.7.11, made with the assistance of HM Prison Service's Legal Services, S states his wish to purge his contempt.
The affidavit is in the following terms:
"I wish to purge my contempt and to be released from prison.
I humbly apologise to this Honourable Court for breaking the Order and I undertake to comply in the future.
I solemnly promise that I will not breach any further Order the Court may make, or the Order now in existence.
I realise the Order must be obeyed.
I have learned my lesson.
I understand that I shall be liable to be sent to prison again if I fail to comply with any further Order that might be made by the Court.
I ask the Court to accept my apologies and allow me to be released".
Without wishing to be unduly pedantic, this text, which appears to me to be in a standard form, is inapposite for the contempts committed by S. S did not disobey or fail to comply with an order.
However, reading between the lines, there is a recognition that the due administration of justice and the rule of law are not to be disregarded, an expression of regret and remorse for the conduct which gave rise to the committal, a recognition that repetition will be likely to lead to further imprisonment, and an expression of desire to atone and have the slate wiped clean.
Purging Contempt ~ Principles
A committal order is an order of last resort; in the context of civil proceedings, it is also draconian. It should only be made where, having regard to all the circumstances, it is absolutely necessary.
By way of temper, a contemnor has an unqualified right to apply to the court to purge his/her contempt and seek an order for immediate release. This is not a 'once only' right, rather it is a continuing right running throughout the duration of the sentence.
The origins of this right appear to be twofold: (1) being rooted in the quasi-religious concepts of purification, expiation and atonement ( Harris v Harris [2002] Fam 253, Thorpe LJ at paragraph 21); and, (2) prior to the coming into force of s. of the Contempt of Court Act 1981, being the means by which release from prison was secured following committal to prison for an unspecified period under common law (the ' price' of release being, as part of the purging, compliance with a mandatory order or a credible promise not to disobey a prohibitive order in the future).
With these considerations in mind, a contemnor's right to apply to purge his/her contempt became enshrined in a procedural rule, currently RSC Ord 52 Rule 8(1), now in the CPR Sch 1, which provides:
"The court may, on the application of any person committed to prison for any contempt of court, discharge him".
There are only three possible outcomes of an application to purge and obtain release: (1) immediate release, (2) deferred release at a stated future date, or (3) refusal of the application ( Harris, Thorpe LJ at paragraph 21, after citing at paragraph 17 and following Delaney v Delaney [1996] QB 387, Sir Thomas Bingham MR at pages 400–1).
Although the court may impose a suspended order of committal (see RSC Ord. 52 Rule 7(1)), on an application to purge it may not vary its sentence so as to suspend, for any period, the unexpired term of the sentence. There are two principal reasons for this: (1) clarity and certainty as to the powers of the court and the rights of contemnors, and (2) overarching this, such a variation is more accurately characterised as the imposition of a fresh penalty, which is not lawful, rather than amelioration of the original penalty ( Harris, Thorpe LJ at paragraphs 21–2).
However, it is permissible to extract an undertaking as a condition of acceding to an application to purge ( Harris, Thorpe LJ at paragraph 16).
Before leaving the principles relevant to an application for release, I should also have in mind the judgment of Court of Appeal in Lightfoot v Lightfoot [1989] 1FLR 414. In matrimonial proceedings, Mr L had defied a court order to pay redundancy and other money due to him into a solicitors' joint account upon receipt, pending further order. Mr L received £30,000, paid all the money into his own account, withdrew £24,000, and claimed to have gambled that sum away. In the context of a committal application in the matrimonial proceedings, the first instance judge did not believe Mr L and, having regard to the flagrancy of the contempt, imposed an 18 month custodial sentence. Giving the judgment of a two judge court, Lord Donaldson MR, with whom Butler-Sloss LJ agreed, said at p.416H – 417C:
"… Sentences for contempt fall into two different categories. There is the purely punitive sentence where the contemnor is being punished for a breach of an order which has occurred but which was a once and for all breach. A common example, of course, is a non-molestation order where the respondent does molest the petitioner and that is an offence for which he has to be punished. In fixing the sentence there can well be an element of deterrence to deter him from doing it again and to deter others from doing it. That is one category.
There is a second category which I might describe as a coercive sentence where the contemnor has been ordered to do something and is refusing to do it. Of course, a sentence in that case has a punitive element since he has to be punished for having failed to do so up to the moment of the court hearing, but, nevertheless, it also has a coercive element".
The point that I notice in that extract, is the observation, in the context of a committal aimed at punishing the contemnor, that "In fixing the sentence there can well be an element of deterrence … to deter others from doing it". Butler...
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