ANOTHER CIVIL CONTEMPT OF COURT OVERTURNED: BREACHES OF REQUIREMENT FOR A FAIR HEARING MEANT ORDER MUST BE QUASHED

I am starting to lose count of the number of times the Court of Appeal has overturned decisions committing people to prison because of very basic and fundamental failures of procedure.  It is as though all the strictures against fair hearings disappear when there are committal proceedings in the civil courts. We see this again in the decision today in  Douherty v The Chief Constable of Essex Police [2019] EWCA Civ 55.

“The effect of these breaches, singularly and cumulatively, was to deprive the appellant of valuable safeguards the purpose of which is to ensure a fair hearing. The appellant did not receive such a hearing. As a result the order for committal must be quashed”

THE CASE

The appellant appealed against a decision committing him to prison for breach of “Gang Injunction”.

THE JUDGMENT OF THE COURT OF APPEAL

After rehearsing the facts relating to the committal in detail the Court of Appeal allowed the appeal.  A number of procedural errors were identified.

    1. The appellant attended the county court on the morning of 2 October 2018 having spent his first night in custody and expecting to be represented by a lawyer. By the time he appeared before the judge it was clear to all that he had no legal representation in proceedings in which his liberty was at stake. He had received no advice from his own lawyer as to the nature of the contempt proceedings. The terms of the injunction were lengthy and represented less than a model of drafting clarity. There was a real risk that the appellant would not fully or properly understand the nature, detail and consequences of the committal proceedings.
    2. When the appellant appeared in court Ms Philpott immediately raised with the judge whether or not she was prepared to proceed with the appellant as he was unrepresented. It is clear that Ms Philpott and the judge believed that the appellant would be eligible for legal aid and thus legal representation. The judge noted that legal representation would be helpful to the appellant, an observation which had to be correct given the nature of the proceedings. This was not so urgent a hearing that an adjournment could not be granted. The judge appears not to have acknowledged at the outset of the proceedings the real need for an adjournment in order to permit the appellant to obtain legal aid and legal representation. At the conclusion of the appellant’s evidence the judge did raise the possibility of an adjournment to enable the appellant to obtain legal representation. It was too late. From the start of the hearing, the judge was aware of the alleged breaches of the injunction, she would have been aware of the consequences of such breaches directly affecting the liberty of the appellant. Given the age of the appellant, the absence of previous convictions and thus experience of the courts together with the risk to his liberty, the judge should have adjourned the proceedings to enable the appellant to obtain legal aid and legal representation.
    3. The respondent accepts that the documents upon which it relied for the purpose of these proceedings did not strictly comply with the relevant Application Notice as required by CPR Part 23. The documents which comprise the bundle for the court did include details of the alleged breaches, the statement of DC Phillips and the original injunction. This court is not in a position to resolve the issue of whether the appellant saw and received these documents from Ms Philpott prior to going into court or whether he saw the same only when giving evidence. In any event, it is not suggested on his behalf that the failure to provide these documents in the prescribed form is a material error such as to undermine the fairness of these proceedings.
    4. The judge having decided that the hearing would proceed, and having told the appellant that she could hear from him as a litigant in person, should have informed him of his right to remain silent. Nothing was said to the appellant by the judge or Ms Philpott to inform him of this fundamental right.
    5. The appellant having elected to give evidence, the next step for the judge was to warn him about self-incrimination. No such warning was given. This failure compounded the failures to allow him legal representation and the failure to inform the appellant of his right to remain silent.
    6. At the conclusion of the appellant’s evidence the judge invited him to add anything to his evidence. He said that he was sorry and promised not to break his injunction again. That represented the totality of his mitigation. No mention is made during the hearing of the appellant’s age nor of his absence of previous convictions. Those facts are absent in the sentencing remarks of the judge which can only be described as succinct. No questions were asked by the judge as to the appellant’s background and circumstances. In such a relatively young offender these are matter which properly should have been before the court. The judge gave no reasons as to why a custodial sentence was appropriate. She made no reference to other means of disposal. The absence of appropriate legal representation resulted in the appellant being deprived of the opportunity to properly put before the court mitigation which represented all the relevant facts and was focused upon the appropriate disposal of the matter.
    7. The point is made by the respondent that even if the appellant had been advised of his right to remain silent and warned of self-incrimination the outcome would have been no different. To that submission I note the approach of the court in the matter of L (a child) (above). Sir James Munby P rejected the respondent’s argument that even if there had been a separate hearing of the contempt application the result would have been the same. He observed that the appellant may have been a very lucky man but went on to state that “…there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards in the circumstances of this case”. A similar approach was taken by Sir Brian Leveson P in Re West where the court recognised that the failure of process invalidated the conclusion reached by the judge. Sir Brian Leveson P stated: “We recognise that it is likely to have made little difference but we are not prepared to assert that; it is far more important to underline the vital importance, where issues of contempt arise in circumstances of this nature, of following the approach laid down by the Crim PR.” It is apparent from the authorities that the courts adopt a fairly strict approach and are reluctant to countenance arguments that procedural failings that go to the fairness of proceedings are immaterial.
    8. I accept the appellant’s submission that there were four breaches of procedure at the appellant’s committal proceedings. They were caused by the failure of the judge to:
i) Adjourn the proceedings to permit the appellant to obtain legal aid and legal representation;
ii) Advise the appellant of his right to remain silent;
iii) Warn the appellant of the risk of self-incrimination prior to giving evidence; and
iv) For a second time, not adjourning the proceedings to afford the appellant the opportunity to obtain legal representation such as to enable properly informed and focused mitigation to be made on his behalf.
  1. The effect of these breaches, singularly and cumulatively, was to deprive the appellant of valuable safeguards the purpose of which is to ensure a fair hearing. The appellant did not receive such a hearing. As a result the order for committal must be quashed.
  2. The appeal is allowed. The contempt application is remitted for a further hearing before a different judge.