Wilkinson v S and another
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Date | 2002 |
| Court | Court of Appeal (Civil Division) |
Contempt of court – Criminal contempt – Jurisdiction – Summary committal – Whether High Court having power to remand for more than one night pending summary determination of proceedings for contempt in face of court – Whether appropriate for such proceedings to be determined by judge who witnessed contempt – Human Rights Act 1998, Sch 1, Pt I, art 6(1).
Contempt of court – Appeal – Appeal against committal order or other order made in exercise of jurisdiction to punish for contempt – Suspended committal order – Whether contemnor requiring permission to appeal against suspended committal order – CPR 52.3(1)(a).
The appellant father was engaged in proceedings with the respondent mother in relation to their children. In the course of those proceedings, a directions hearing took place on a Thursday in the High Court. While the judge was attempting to deliver her judgment, the father interrupted with foul, abusive and threatening language directed at the mother and her solicitor. He attempted to attack the solicitor, and was restrained only after a violent struggle. The judge ordered his arrest, and he was taken to a court cell. A solicitor, assigned to represent the father, found him unable or unwilling to speak, and accordingly could not obtain instructions. The judge then made an order committing the father to prison pending summary determination of an alleged contempt in the face of the court. The father was not brought to court the next day, but the case came back before the judge on the following Monday. At the hearing, the solicitor assured the court that the father did not wish to challenge any description of what had occurred the previous Thursday. The judge proceeded to sentence the father to six months’ imprisonment. After purging his contempt and being released, the father appealed both against the initial remand in custody and the subsequent committal order. On the appeal, the Official Solicitor, who intervened in the proceedings because of his role in relation to those imprisoned for contempt of court, contended that the court had power to detain only overnight in respect of a remand pending determination of summary committal proceedings, and that, even if the contempt could not be dealt with next day, the contemnor should be brought back to court and the question of bail considered. The Official Solicitor and the father also questioned whether the judge should have dealt with the contempt proceedings herself. In particular, the father contended that, having witnessed the incident, the judge could not be an impartial tribunal for the purposes of art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights
Act 1998). The father also applied for permission to appeal against several other orders made in the proceedings, including a suspended order for committal for breach of a non-molestation order. The issue arose as to whether a suspended order for committal constituted a ‘committal order’ for the purposes of CPR 52.3(1)(a), in which case permission to appeal would not be required.
Held – (1) Where the High Court had remanded a person in custody pending summary determination of an alleged contempt in the face of the court, a delay could not be unlawful if it were no longer than was necessary to make arrangements for a summary trial in which the rights of the contemnor could be properly protected. It would be illogical to hold that a judge could impose up to two years’ imprisonment virtually on the spot but not wait a short time in order to achieve a fairer procedure. As a matter of good practice, however, if the case could not be heard the next day, the judge should ensure that the alleged contemnor was brought back to court in any event or, if that were not possible, inquiries were made and the case mentioned in open court, so that the reasons for any further delay were both known and recorded, and the question of bail could be considered. In the instant case, it was regrettable that that had not been done. There was, however, material from which it could be inferred that the matter had not proceeded on the Friday because the father had not been fit to instruct his lawyer. It could also be inferred that if the father had been brought back to court, or the case mentioned, the next day, the judge would not have released him. In those circumstances, a delay until the next working day was not unlawful, but that was the very limit of what could be either lawful or acceptable.
(2) Although in many cases where there had perforce to be a delay between the alleged contempt and the summary trial it would be wise for the judge to refer the matter to one of her colleagues, the procedure did not, strictly speaking, offend the rule of natural justice that no one was to be a judge in her own cause. The prosecution was not aimed at protecting the judge personally but protecting the administration of justice. The issue was one of the appearance of bias, the test for the purposes of art 6 of the Convention being whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased. In the instant case, there was no dispute as to the essential facts of what had occurred and it was accordingly open to the judge to continue to deal with the matter herself. A fair-minded observer would not conclude that there was a real possibility of bias. The appeal would therefore be dismissed.
(3) A suspended committal order was a committal order for the purposes of CPR 52.3(1)(a), and could therefore be appealed against without permission. Although a suspended committal order did not immediately deprive the contemnor of his liberty, it hung like a sword of Damocles over his head, putting his liberty at much greater risk than did the order that he had been found to have breached. To the extent that there was any doubt about the meaning of the rules, it should be resolved in favour of the citizen whose liberty had thus been put in jeopardy. It followed in the instant case that the application for permission to appeal against the suspended committal order should have been brought as a substantive appeal. The appeal itself, however, would be dismissed.
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Balogh v Crown Court at St Albans [1974] 3 All ER 283, [1975] QB 73, [1974] 3 WLR 314, CA.
Barnet London BC v Hurst[2002] EWCA Civ 1009, [2002] 4 All ER 457.
Delaney v Delaney[1996] 2 FCR 13, [1996] 1 All ER 367, [1996] QB 387, [1996] 2 WLR 74, CA.
DPP v Channel Four Television Co Ltd [1993] 2 All ER 517, DC.
Hale v Tanner[2000] 3 FCR 62, [2000] 1 WLR 2377, [2000] 2 FLR 879, CA.
Medicaments and Related Classes of Goods (No 2), Re [2001] ICR 564, [2001] 1 WLR 700, CA.
Morris v Crown Office [1970] 1 All ER 1079, [1970] 2 QB 114, [1970] 2 WLR 792, CA.
Nicholls v Nicholls[1997] 3 FCR 14, [1997] 2 All ER 97, [1997] 1 WLR 314, CA.
Porter v Magill[2001] UKHL 67, [2002] 1 All ER 465, [2002] 2 AC 357, [2002] 2 WLR 37.
R v Dodds [2002] EWCA Crim 1328, [2003] 1 Cr App R 60.
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R v MacLeod (2000) Times, 20 December, CA.
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R v Schot, R v Barclay [1997] 2 Cr App R 383, CA.
R v Secretary of State for the Home Dept, ex p Stevens, R v Secretary of State for the Home Dept, ex p Holness (21 May 1997, unreported), DC.
Sierra Leone Government v Davenport[2002] EWCA Civ 230, [2002] CPLR 236.
W (B) (an infant), Re [1969] 1 All ER 594, [1969] 2 Ch 50, [1969] 2 WLR 99, CA.
Appeal and applications for permission to appealThe appellant, Alan Wilkinson, appealed with permission of Ward and Hale LJJ granted on 16 April 2002 from (i) the order of Bracewell J made in the High Court at Manchester on 18 October 2001 remanding him in custody pending the summary determination of proceedings for contempt in the face of the court in proceedings between him and the first respondent, S, the mother of his children, relating to their children, and (ii) from order of Bracewell J on 22 October 2001 sentencing him to six months’ imprisonment for that contempt. The appellant also made 11 applications for permission to appeal other orders made in the proceedings, including a suspended committal order made by Judge Duncan in the Liverpool County Court on 25 November 2002. The Lord Chancellor’s Department was the second respondent, and the Official Solicitor intervened. The facts are set out in the judgment of the court.
The appellant appeared in person.
Clive Sheldon (instructed by the Treasury Solicitor) for the Lord Chancellor’s Department.
Hugo Keith for the Official Solicitor.
The mother was not represented.
Cur adv vult
4 February 2003. The following judgment of the court was delivered.
HALE LJ.[1] There are before us one substantive appeal and 11 applications for permission to appeal, although for reasons which will appear, in our judgment one of these should have been listed as a substantive appeal. They all arise directly or indirectly out of proceedings between a father and mother relating to their children. We therefore direct that nothing calculated to lead to their identification may be published. This does not include the name of the appellant, their father, whose surname they do not bear.
The main appeal[2] This is an appeal against two committal orders made by Bracewell J, in the Family Division of the High Court sitting in Manchester on 18 and 22 October 2001. It raises issues of principle and practice concerning the powers of the High Court to deal with contempt in the face of the court.
[3] On Thursday 18 October 2001, Bracewell J was giving judgment in a directions hearing in proceedings under the Children Act 1989 and under the Family Law Act 1986 relating to the children. She had decided that the two be consolidated and heard in the county court. While she was attempting to deliver her judgment...
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Re G (A Child) (Contempt: Committal Order)
...[1999] 3 WLR 1164, [1999] 2 FLR 573, CA. W (wards) (publication of information), Re [1989] 1 FLR 246. Wilkinson v S[2003] EWCA Civ 95, [2003] 1 FCR 741, [2003] 2 All ER AppealThe father appealed against the decision of Judge Mitchell whereby he (i) ordered that there should be no direct con......