Harris v Harris

On an application by a civil contemnor to purge contempt, the court may order release, refuse release, or defer release. It has no jurisdiction to release the contemnor conditionally while suspending the unserved balance of an earlier committal sentence for a future period.

The power in Rules of the Supreme Court, Order 52, rule 7(1), to suspend execution concerns the original committal order. It does not authorise a later partly immediate and partly suspended sentence. Any purported variation of a committal sentence must also be plainly and indisputably ameliorative.

The applicant had been sentenced by Munby J to ten months’ imprisonment for repeated breaches of injunctions in family proceedings. On his third application to purge his contempt, Munby J ordered his immediate release but suspended the unserved part of the sentence for nine months, conditional upon compliance with the injunctions.

The applicant appealed. There was no challenge to the judge’s discretion if the power existed. The central issue was whether a court, when granting an application to purge contempt, could impose a suspended sentence for the unserved balance of the original committal sentence and, if so, for how long.

1. Appeal allowed. Thorpe LJ delivered the leading judgment. Waller and Mantell LJJ agreed. The conditional release order was set aside and replaced with an order for the applicant’s unconditional release.
2. Thorpe LJ held that an application to purge contempt has a limited character. The court may grant release, refuse it, or defer it. It may renew protective orders, make fresh protective orders, or require undertakings, but it may not create a new suspended custodial liability from the unserved balance of an existing sentence.
3. The court accepted that the common law permits flexibility in committal matters, as illustrated by Delaney v Delaney [1996] QB 837. That flexibility has limits. A contemnor cannot be sentenced twice for the same contempt and the original sentence cannot be increased.
4. Rules of the Supreme Court, Order 52, rule 7(1), permits suspension of execution of the original committal order. In the court’s view, the choice between immediate execution and suspension is made at the sentencing hearing and does not arise afresh on an application to purge. The order below was, at best, of uncertain character and was more properly viewed as imposing a fresh penalty.
5. Further, even if the order could be characterised as a variation, its alleged amelioration was not self-evident. The benefit of earlier release had to be balanced against the continuing threat of imprisonment during future liberty and the uncertainty surrounding the operation of Criminal Justice Act 1991, section 45.
6. Waller LJ added that a conditional suspension added little in practice. If further contempt occurred, the court could take account of the unserved part of the earlier sentence and the breached assurances when sentencing, subject to the overall two-year limit.

• Court of Appeal (Civil Division). In the present appeal, Harris v Harris [2001] EWCA Civ 1645, the court allowed the appeal and substituted unconditional release for conditional release.
• High Court, Family Division. Munby J granted the applicant’s third application to purge contempt on 14 June 2001. He ordered immediate release while suspending the unserved balance of the committal sentence for nine months on conditions. Reasons were handed down on 21 June 2001.
• Earlier procedural steps. A prior appeal against the committal sentence was dismissed on 2 May 2001. On 2 July 2001, permission was granted to appeal the conditional-release order while other applications for permission were refused.