Wilkinson v Lord Chancellor's Department & Anor

The Court of Appeal dismissed the appellant's challenge to two committal orders made after violent and abusive conduct in the course of Family Division proceedings. The court held that the inherent power of the superior courts to punish contempt in the face of the court can justify a short remand beyond the end of the court day where that delay is necessary to secure a fair summary hearing (legal representation, reflection, opportunity to apologise), and that a brief delay until the next working day was lawful on the facts. The court applied common-law principles governing summary contempt and concluded that the Convention rights relied on (articles 5 and 6) added no new principle to the established common law in this area. It also held that a judge who had witnessed the contempt could, in appropriate circumstances, continue to hear mitigation and sentence without giving rise to a real possibility of bias. Finally, the court held that a suspended committal order is nevertheless a committal order for the purposes of CPR 52.3(1)(a) and so may be appealed without permission.

Background and parties: The appellant (father) was committed to prison after a violent and abusive outburst in a directions hearing before Bracewell J in proceedings under the Children Act 1989 and the Family Law Act 1986. The Lord Chancellor's Department was joined because the appellant sought damages for alleged wrongful detention under the Human Rights Act 1998; the Official Solicitor intervened because of his role in contempt cases.

Nature of the application: The substantive appeal challenged the lawfulness of detention from 18 to 22 October, alleged breaches of article 5 and article 6 of the European Convention on Human Rights, asserted procedural defects (delay in informing the appellant of reasons, inadequate facilities to prepare a defence, lack of choice as to representation) and contended that the trial judge should not have tried and sentenced the appellant because she had witnessed the events. There were also eleven related applications for permission to appeal various orders in the long-running children and family-law proceedings, including a challenge to a later suspended committal.

Issues framed:

• whether the High Court had power to remand a person arrested for contempt in the face of the court beyond the end of the day, and if so within what limits;
• whether the judge who had witnessed the alleged contempt could properly hear mitigation and sentence without breaching article 6(1) or creating an appearance of bias;
• whether the appellant's article 5 and article 6 rights had been breached by the manner of arrest, detention and procedure; and
• whether a suspended committal order counts as a committal order under CPR 52.3(1)(a) for the purpose of the right to appeal without permission.

Court's reasoning and findings: The court reviewed authorities on summary punishment for contempt and distinguished between jurisdictional limits and good practice. It accepted that while remand pending a civil committal is generally not permitted, contempts in the face of the court are different and a short detention to enable a fair summary procedure (provision of legal representation, a period for reflection and to enable the contemnor to apologise) can be lawful. On the facts, the delay until the next working day was lawful because the appellant was unfit to instruct counsel. The judge had considered referral to a colleague but reasonably continued to hear mitigation because the facts were not in dispute; applying the fair‑minded and informed observer test from Re Medicaments and Porter v Magill, a real possibility of bias was not established. The procedural complaints raised were either answered by the transcript and the hearing on 22 October or not shown to have caused prejudice. The sentence of six months for a violent and prolonged attack in court was within the statutory maximum and not excessive in context. In relation to other applications, the judges below had been careful and their decisions stood. The court finally held that a suspended committal is a committal order for CPR 52.3(1)(a) and so may be appealed without permission.

Appeal dismissed. The High Court has inherent power to detain pending a summary hearing for contempt in the face of the court for as long as is necessary to secure a fair summary procedure; a short delay until the next working day was lawful on the facts because the appellant was unfit to instruct his lawyer. The trial judge who had witnessed the conduct did not create a real possibility of bias by hearing mitigation and sentencing where the facts were not in dispute. Procedural ECHR complaints were not made out. A suspended committal order is a committal order for the purposes of CPR 52.3(1)(a) and may be appealed without permission.

Appeal from committal orders made by Mrs Justice Bracewell in the Family Division sitting in Manchester (orders of 18 and 22 October 2001). Permission to appeal out of time was granted by Ward LJ and Lady Justice Hale on 16 April 2002. Related proceedings arose in Manchester County Court, Liverpool County Court and other county courts; the Official Solicitor intervened in the Court of Appeal proceedings.