Togher v Commissioners of Customs and Excise

In civil contempt proceedings where imprisonment is an appreciable risk, an unrepresented defendant should be asked whether legal representation is wanted. The court must ensure that the proceedings are fair, including a proper opportunity to challenge late evidence and to present mitigation. A committal finding may be unsafe where the absence of representation prevents such safeguards and there is material doubt about important evidence. An ambiguous disclosure order cannot support committal on a construction which the parties and court have effectively waived by allowing further time for compliance.

Mr Togher sought an extension of time to appeal from Hidden J’s order committing him to 15 months’ imprisonment for contempt. The alleged contempt consisted of failing to swear and serve an affidavit disclosing his assets under a restraint and disclosure order. The High Court proceedings involved late affidavits, disputed access to documents and no legal representation for Mr Togher. The appeal concerned the fairness and safety of the committal finding, the effect of alleged non-compliance with an earlier order, and the length of sentence.

1. Appeal allowed. The extension of time was granted and the committal order was discharged.
2. Per Walker LJ, with Keene LJ agreeing, personal service and the formal requirements for a committal motion had been satisfied. However, where there was an appreciable risk of imprisonment, an unrepresented defendant should be asked whether legal representation was wanted. This principle had been stated in Newman v Modern Bookbinders [2000] 2 AER 814.
3. The absence of representation mattered because an advocate could have challenged the late affidavits, sought cross-examination or an adjournment, and addressed mitigation. Mr McLellan’s evidence was important to the conclusion that the disclosure order had been complied with and that Mr Togher’s excuses were false. Subsequent doubts about that evidence, combined with the procedural deficiencies, meant that the finding of contumacious contempt was unsafe.
4. Lightman J concurred in the result on a separate ground. The disclosure order was ambiguous as to whether it required a complete affidavit within 14 days or the best particulars then available. The parties and the court had proceeded on the former construction while allowing further time. The Commissioners had therefore waived reliance on the original 14-day limit and had obtained no fresh order imposing a later deadline. The original order could not retrospectively support committal for failure to comply within that period.
5. Costs were to be agreed, or otherwise dealt with summarily by written submissions.

• Court of Appeal (Civil Division): allowed the appeal from Hidden J’s committal order, granted an extension of time, and discharged the order.
• High Court, Queen’s Bench Division (Crown Office List): Hidden J committed Mr Togher to 15 months’ imprisonment for contempt on 15 November 1995.