Wilkinson v Lord Chancellor's Department & Anor

The High Court has an inherent power to detain a person accused of contempt in the face of the court beyond the end of the court day where a short delay is necessary to arrange a fair summary hearing. The detention must be no longer than necessary. If the hearing cannot take place the next day, good practice requires the case to be brought back, or mentioned in open court, so that the reasons for delay are recorded and bail can be considered.

A judge who witnessed the contempt may hear it where the fair-minded and informed observer would not see a real possibility of bias. A suspended committal is a committal order for rule 52.3(1)(a) of the Civil Procedure Rules 1998; it may therefore be appealed without permission.

The appellant was committed by Bracewell J for six months after a violent and prolonged outburst during family proceedings. He was arrested on 18 October 2001, detained until 22 October, and then sentenced following a summary hearing at which the conduct was admitted.

He appealed, alleging unlawful detention and procedural unfairness under the European Convention on Human Rights. The court also considered applications concerning later children and non-molestation proceedings. One purported permission application was in fact an appeal from an eight-month suspended committal order made by HHJ Duncan.

The principal issues were the permissible duration of detention before a summary contempt hearing, apparent bias where the same judge heard the contempt, and whether a suspended committal required permission to appeal.

Decision

1. The court dismissed the appeal from Bracewell J’s committal orders. It also dismissed the appeal from the suspended committal order and refused permission to appeal on all the remaining applications.

2. The High Court’s inherent jurisdiction permits the immediate detention of a person who has committed, or apparently committed, contempt in the face of the court. The court distinguished the absence of a general power to remand for civil contempt explained in Delaney v Delaney [1996] QB 387. Once a judge properly elects to use the summary procedure, a short delay to secure representation, allow reflection and arrange a fair hearing is lawful. It would be illogical if the court could impose imprisonment immediately but could not delay briefly to make the process fairer.

   In ordinary cases, the hearing should occur that day or the next. If it cannot, the alleged contemnor should be returned to court, or the case mentioned in open court, so that the delay is explained and bail considered. The failure to do so here was regrettable. On the evidence, however, the appellant remained unable to instruct his solicitor and the delay to the next working day was lawful, though at the outer limit of what was lawful or acceptable.

3. The same judge could determine the contempt. Applying the apparent-bias test in Re Medicaments and Related Classes of Goods [2001] 1 WLR 700, the court held that a fair-minded and informed observer would not find a real possibility of bias. The facts were not disputed; the judge had considered whether to refer the matter; and the hearing concerned mitigation and sentence. Referral to another judge may nevertheless be wise where delay permits it.

4. The remaining Article 5 and Article 6 complaints failed. The appellant had been told the nature of the alleged contempt, had competent representation, admitted the conduct, and suffered no injustice from the warrant’s wording. The six-month sentence was not excessive given the gravity of the violence and threats in court.

5. A suspended committal is an order committing a person to prison, even though imprisonment awaits a further order. It is consequently a committal order within rule 52.3(1)(a) of the Civil Procedure Rules 1998 and may be appealed without permission. The appeal from the eight-month suspended order nevertheless lacked merit.

• Court of Appeal (Civil Division): dismissed the appeal from Bracewell J’s immediate committal order, dismissed the appeal from HHJ Duncan’s suspended committal order, and refused the remaining permission applications: [2003] EWCA Civ 95.

• High Court, Family Division: Bracewell J ordered the appellant’s detention on 18 October 2001 and, on 22 October 2001, committed him to prison for six months for contempt in the face of the court.

• County Courts: HHJ Harris made children-proceedings and case-management orders. HHJ Duncan later made an eight-month committal order, suspended for one year, for breach of a non-molestation order.