Horgan v Horgan

A person arrested under a power of arrest must be brought before the court within 24 hours, and a custody remand under Family Law Act 1996 schedule 5 may not exceed eight clear days on each occasion. The court must carefully consider bail and give reasons for refusing it. Administrative failures causing unlawful custody must be taken into account when sentencing for contempt. Sentences for contempt serve both to mark disobedience to the court and to secure future compliance. The sentence must therefore reflect time unlawfully spent in custody and avoid double punishment.

The appellant appealed against a Reading County Court order committing him to prison for contempt of an injunction restraining violence, intimidation, harassment and pestering of his wife. The injunction followed allegations of violence and threatening telephone calls. Before the committal hearing, the appellant was repeatedly remanded in custody for periods exceeding the statutory eight-day limit, and administrative failures prevented his timely production before the correct court.

The trial judge found four breaches proved to the criminal standard and imposed consecutive periods of imprisonment, suspended. The central issues were the legality and consequences of the custody remands, the treatment of time spent on remand, the adequacy of the evidence, and whether the sentences were excessive.

1. Appeal allowed. The findings that four breaches of the injunction were proved were upheld. The periods of imprisonment were reduced to 14 days for each of the first two breaches and one month for each of the remaining two breaches, suspended until 1 March.
2. Under Family Law Act 1996 schedule 5 paragraph 2(5), a person remanded in custody after arrest under a power of arrest may not be remanded for more than eight clear days. The orders made on 24 April and 10 May, which exceeded that period, were unlawful and infringed the requirement in Article 5(1) of the Convention that detention be in accordance with a procedure prescribed by law.
3. On the true construction of section 47 and schedule 5, the court may make further remands. The eight-day limit applies to each remand, rather than imposing an absolute aggregate limit. Lord Justice Potter expressly agreed with that construction.
4. At each stage after arrest the court must consider carefully why bail should not be granted and give reasons for refusing it. Custody should not be continued for lengthy periods without a strong case involving interference with the administration of justice, serious risk of further criminal activity, or serious further breach of the injunction. The need for proper representation may justify an adjournment, but does not remove the statutory limits or the need to protect liberty.
5. The committal proceedings required proof beyond reasonable doubt. The judge was entitled to accept the wife’s evidence, reject the appellant’s explanations, and take account of the history insofar as it explained her fear. The references to earlier convictions did not demonstrate an error of approach.
6. Sentencing for contempt has a dual purpose: to mark the court’s disapproval of disobedience and to secure future obedience. Time spent on remand must be taken into account, particularly where part of the custody was unlawful, so that the contemnor does not serve effectively double time. The approach in McKnight v Northern [2001] EWCA Civ 2028 was applied.

The transcript was directed to be provided to the Chief Clerk of Reading County Court.

• Court of Appeal (Civil Division): allowed the appeal from the order of His Honour Judge Critchlow in Reading County Court dated 24 May 2002. The convictions for contempt were upheld, but the sentences were reduced.