CIVIL CONTEMPT: THE KANGAROO COURTS OF THE JUSTICE SYSTEM: THE DANGERS OF NOT FOLLOWING THE CORRECT PROCEDURE
In January this year I wrote “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.” There is something very fundamentally dangerous and wrong about the system operating for civil contempt of court. All the safeguards that defendants normally have appear to disappear and there is a danger that some judges are taking on the role of prosecutor and not adjudicator. These concerns are highlighted, again, in the decision of the Court of Appeal earlier this week in Re M (A Child). This is far from being an isolated case.
RE M(A CHILD)
In a decision on 03/09/2019 (I still have to see the full transcript), the Court of Appeal overturned a decision that a paralegal was in contempt of court. The paralegal had placed documents from the family court into a bundle for an immigration hearing. The family court judge found him in contempt and sentenced him to 6 months in prison, suspended.
The Court of Appeal identified a number of serious errors.
- The hearing did not take place in open court.
- The appellant had not been given proper notice that he was accused of contempt of court.
- Specific allegations had not been put.
- It had not been sufficient to proceed simply because the appellant had agreed.
- The judge had not been shown the disclosed documents so it was not possible for him to gauge the seriousness of the alleged breach.
- The judge did not appear to consider whether it was the appellant who was the real culprit.
- The judge compelled the appellant to go into the witness box, contrary to the principle that he could not be compelled to give evidence.
Not one of the five conditions set out in Re L (A Child) had been met . The order was held to be “manifestly unfair”. The judge’s order was quashed.
THIS IS NOT A ONE OFF
If this were an isolated incident it would be a matter of concern. However it is not.
- In Hughes Jarvis Ltd v Searle & Anor  EWCA the Court of Appeal overturned a decision committing a witness to prison because he had spoken to others during the course of giving his evidence. Again there was a wholesale failure to apply the basic procedural safeguards.
“Her failure to observe and apply these safeguards led to a hearing which was neither fair nor impartial and I would for those reasons alone set the committal orders aside.”
The decision to put the witness in custody overnight was held to be “a misuse of judicial power.”
- In Douherty v The Chief Constable of Essex Police  EWCA Civ 55 a finding of contempt was set aside by the Court of Appeal because of procedural failings. There were four significant breaches of procedure.
“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.”
- In LL -v- Lord Chancellor  EWCA Civ 237, the Court of Appeal held that the procedure adopted on committal amounted to a “gross and obvious procedural irregularity” so as to enable the claimant to pursue damages against the Lord Chancellor. The appellant had (wrongfully) spent nine weeks in prison. An earlier judgment of the court, in the substantive proceedings, ( EWCA Civ 905)
“So far as this appeal is concerned, I would reiterate that proceedings for committal are a criminal charge for the purposes of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (“the Convention”); the burden of proof lies on the person seeking committal; and a defendant is not obliged to give evidence and this is a matter of which he should be warned. The father was given no such warning, however. To the contrary, he was asked to give evidence and was immediately cross-examined, first by Mr Jarman and then by the judge. This was, it seems to me, wholly wrong. Appearing as he was in person, the judge ought first to have explained to him the nature of the proceedings and that he was not obliged to give evidence at all. Then, if he wished to give evidence he should have been given an opportunity to give evidence on his own account before being subjected to cross-examination. The father was denied the warning to which he was entitled and then subjected to a procedure which was the inverse of what it should have been.”
- In Devon County Council -v- Kirk  EWCA Civ 1221 the applicant was only rescued from unlawful imprisonment by tenacious counsel acting pro bono