APPLICATION TO COMMIT REFUSED BECAUSE THE DEFENDANT WAS NOT IN BREACH OF THE ORDER: WORDS ARE IMPORTANT: THE NEED FOR REPRESENTATION IN COMMITTAL PROCEEDINGS

A constant, worrying, theme on this blog has been the need for (and funding of) representation of defendants in civil committal proceedings.  These concerns run alongside the many and manifest procedural errors that applicants (and sometimes judges) make when committal proceedings are underway.  An example of the need for representation is contained in the judgment of Mr Justice Macdonald in London Borough of Wandsworth v Lennard [2019] EWHC 1552 (Fam).   This case is important because it shows the highly technical nature of committal proceedings and also considers the appropriate approach for the court to take when construing an injunction.

THE CASE

The defendant was a parent in care proceedings and dissatisfied with the local authority’s conduct.  An injunction had been obtained

1. Mr Neil Lennard is prohibited from behaving in the following ways:

(a) Using offensive, foul, threatening words or behaviour towards Alana Bobie or Grace Okoro-Anyaeche as employees of the applicant local authority working in the Children Looked After Team 2.

(b) Sending offensive, foul or threatening communications, emails or messages to Alana Bobie or Grace Okoro-Anyaeche as employees of the application local authority working in the Children Looked After Team No (2) by texting or using the internet or social media to communicate.

2. This order shall remain in force until 5 July 2019 or further order.”

THE ALLEGED BREACH

The defendant attended the town hall where he misbehaved towards two staff members (not the staff members named in the injunction).

The committal application read that the defendant was in breach of the order because he:

“Failed to comply with the order made on 6 July 2018 and are in contempt of court. The London Borough of Wandsworth alleges that on 13 February 2019 you breached the order as follows:
1. In respect of paragraph 1B (sic) by that you used offensive, foul, threatening words towards Grace Okoro-Anyaeche”

THE JUDGE’S REJECTION OF THE APPLICATION TO COMMIT

The judge rejected the application to commit on a preliminary issue. The people named in the injunction were not present when the defendant went to the town hall.
    1. I am of course, I make clear, not engaged in an exercise of statutory construction. My task is to decide whether there has been a breach of the order of 6 July 2018 having regard to the terms of the order and the evidence before the court. Having considered the helpful submissions of counsel and the documentary evidence available to the court, I am satisfied that Mr Wauchope has made good his submission that there has not been a breach in this case having regard to the plain terms of the order.
    2. The order prohibits Mr Lennard from using offensive, foul, threatening words or behaviour towards Grace Okoro-Anyaeche. It is not disputed that at the time (as he accepts) Mr Lennard used words that were at least “foul”, Grace Okoro-Anyaeche was not present. In those circumstances, was the spoken foul language directed by Mr Lennard “towards” the social worker for the purposes of the protective injunction from which she benefited? I am satisfied that the answer is no.
    3. Using the word “towards” in its wider sense, it is possible to construe Mr Lennard’s spoken words as having been directed towards Grace Okoro-Anyaeche in that she was plainly the subject of some of those words. However, using the word “towards” in its narrower, and in my judgment, plain sense, the words spoken by Mr Lennard could not have been used towards Grace Okoro-Anyaeche because she was not present at the time and the statements made were verbal in nature. It might, I suppose, be said that the words spoken by Mr Lennard could be taken to have been used towards Grace Okoro-Anyaeche in that, whilst she was not present to hear them, what was said was passed on to her by others.
    4. Having given careful consideration to the matter, and in the context of the alleged breach in question being the use by Mr Lennard of verbal abuse, I conclude that I favour the narrow interpretation of the word “towards” in this context and take Parker J’s order to mean that Mr Lennard is prohibited from using offensive, foul, threatening words or behaviour in the presence of and in the direction of Grace Okoro-Anyaeche. Conduct such as, for example, Mr Lennard publishing his abuse on social media and Grace Okoro-Anyaeche thereafter reading the same, or posting a letter to her with the same result, would be caught in these circumstances. However, verbal abuse by Mr Lennard direct at Grace Okoro-Anyaeche when she is not present will not. On the local authority’s single pleaded allegation, the court here is concerned here with words spoken about, but in the absence of, Grace Okoro-Anyaeche.
    5. I take the view I do on the proper interpretation of the word “towards” in these circumstances primarily by reason of the fact that a breach of this injunction carries with it penal consequences. On the one hand, I must, of course, be conscious of the protective function of injunction, and that that protective function argues for a broad, purposive application of its terms. The court grants an injunction to provide protection and relief in circumstances where it is satisfied that such protection and relief is merited. However, against this, the injunction carries with it very serious penal consequences and can, within the current context, result in the imprisonment of the person bound by the injunction for a period of up to two years. The long list of procedural requirements that I set out at the beginning of this judgment further illuminates the strict approach the court takes to the examination of breaches that can result in a term of incarceration.
    6. Within this context, and again accepting I am not engaged in an exercise of statutory construction, I bear in mind the words of Lord Justice Taylor in Atkin at p 204 that where the exercise is one looking at wording and deciding what the plain and natural meaning of the words is, in circumstances where the provision in question is a penal provision any doubt is to be resolved in favour of the person subject to that penal provision. Once again, it is the meaning of a provision with penal consequences with which the court is here concerned, namely the order of Parker J dated 6 July 2018 with its attached penal notice.
    7. Within this context and having regard to the terms of the order made by Parker J, it seems to me that given the type of conduct alleged in the single allegation of contempt, namely verbal abuse, in order to find a breach, the conduct in question needs to have occurred in the presence of, and to have been directed at the person protected by the injunction. I accept this is a narrow interpretation rather a broad, purposive interpretation of the word “towards” and that this construction may be said to reduce the protective efficacy of the injunction. However, I am also clear that the penal consequences of the injunction argue against extending the effect of the injunction to words that were not spoken in the presence of the person protected by that order.
    8. I am reinforced in this view by examining the nature of the behaviour that caused Parker J to make the injunction of 6 July 2018 in the first place, namely the alleged behaviour of Mr Lennard directed towards those named in the injunction. Whilst it may be the case that spoken words will be passed on, once again given the penal consequences of the order there would be obvious difficulties in committing a person to prison on the basis of words that they had spoken being passed on by a third party to the person protected by the injunction who was not themselves present.
CONCLUSION
  1. Having been invited by counsel today to deal with the question of whether there has in fact been a breach as a preliminary point, I am satisfied for the reasons I have given that, in circumstances where Grace Okoro-Anyaeche was not present on the one occasion on which the local authority relies in its application to commit, and where she is the only person named in that application, that it cannot be said that Mr Lennard has breached the terms of the injunction. In circumstances where that is the only breach alleged, I must conclude that the application of the local authority is not proved to the requisite standard and that application must stand dismissed.

THE JUDGE’S CONSIDERATION OF THE TECHNICAL REQUIREMENTS OF COMMITTAL APPLICATIONS

The judge also considered the strict procedural requirements for committal proceedings. This is a useful summary for anyone involved in a committal application.
    1. The process of committal for contempt is a highly technical one. It is important, in circumstances where the liberty of the citizen is at stake, to recall the strict procedural requirements of a properly constituted committal hearing that have to be complied with.
    2. Having regard to FPR 2010 r 37 and the authorities, and in particular Re L (A Child) [2016] EWCA Civ 173, the checklist of cardinal requirements which it will be prudent for the court to remind itself of prior to the commencement of any committal hearing at which it is alleged that the contempt is founded on the breach of a previous order, and which requirements I have today reminded myself of for this hearing, can be expressed as follows:
(a) The committal application must be dealt with at a discrete hearing and not alongside other applications.
(b) The order, the breach of which the alleged contempt is founded upon, must contain a penal notice in the required form and in the required location on the order.
(c) The order, the breach of which the alleged contempt is founded upon, must be proved to have been personally served on the defendant or it must be proved that the defendant has otherwise made fully and properly aware of its terms in accordance with the rules.
(d) The alleged contempt must be set out clearly in a notice of application or document that complies with FPR 2010 r 37, FPR r 37.10(3) requiring that the summons or notice identify separately and numerically each alleged act of contempt.
(e) The application notice or document setting out separately each alleged contempt must be proved to have been served on the defendant in accordance with the rules. FPR 2010 r 37.27 requires a period of 14 clear days after service. 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.
(f) The defendant must be given the opportunity to secure legal representation as he or she is entitled to.
(g) 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 should ordinarily be held in open court.
(h) Consideration must be given to whether the allocated judge should hear the committal or whether the committal application should be allocated to another judge.
(i) The burden of proving the alleged breaches lies on the person or authority alleging the breach of the order.
(j) The defendant is entitled to cross examine witnesses, to call evidence and to make a submission of no case to answer.
(k) The alleged breaches must be proved to the criminal standard of proof, i.e. beyond reasonable doubt. A deliberate act or failure to act (actus reus) with knowledge of the terms of the order (mens rea) must be proved.
(l) The defendant must be advised of his or her right to remain silent and informed that he is not obliged to give evidence in his own defence.
(m) Where a breach or breaches are found proved on the criminal standard the committal order must set out the findings made by the court that establish the contempt.
(o) Sentencing must 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.
(p) 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.
(q) 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.
(r) The court should briefly explain its reasons for the disposal it decides.