Clarke v Clarke

In contempt proceedings, the applicant bears the burden of proving the alleged breach to the criminal standard. A factual error concerning one alleged incident does not automatically invalidate findings concerning other incidents where those findings rest on an independent evidential basis. However, an erroneous finding cannot safely stand where the judge misunderstood material evidence, even if the error might otherwise be treated as a slip. The appellate court may therefore delete the unsafe finding while upholding separable findings that remain properly supported.

An order made by Leeds County Court on 13 May 2004 prohibited the appellant from using violence against his estranged wife and children and from intimidating, harassing or pestering them. His Honour Judge Kamil found that the appellant had breached the order on three occasions, involving alleged conduct on 23, 24 and 28 May 2004. He found the appellant in contempt, but adjourned sentence pending a psychiatric report.

On appeal, the appellant argued that the judge had misunderstood the evidence of Pauline Evans concerning the 24 May incident and that the mistake undermined all three findings. The central issue was whether the error required all findings to be set aside or could be confined to the incident directly affected by it.

1. Disposition. The appeal was allowed to a limited extent. The finding relating to the 24 May incident was deleted. The findings relating to the incidents on 23 and 28 May were upheld. The appellant’s publicly funded costs were subject to detailed assessment.
2. Error concerning the second incident. The judge misunderstood Pauline Evans’s evidence. She had seen the appellant’s car on Church Balk Lane, an adjacent road, and had not seen him driving in Grove Lea Walk. The judge therefore wrongly treated her evidence as placing him in the relevant street and as corroborating the second allegation.
3. Effect on the remaining findings. The mistake did not vitiate the findings concerning the first and third incidents. The judge was entitled to assess the credibility of Mrs Clarke and to prefer her evidence. The first incident had an independent evidential basis, including evidence that Mrs Clarke had left her mother’s address and remained in telephone contact with her sister. The third incident had been reported contemporaneously, and the evidence of Mrs Clarke and her sister was consistent in material respects.
4. Criminal standard and safety of the finding. Although the judge’s error might arguably have been treated as a slip, these were contempt proceedings in which the burden remained on the applicant and proof was required to the criminal standard. It was unsafe to uphold a finding where the judge had made an error of fact about material evidence. Fairness required the unsafe finding to be removed, while permitting genuinely separable findings to stand.

1. Court of Appeal (Civil Division) — On 5 July 2004, the appeal was allowed to the limited extent of deleting the finding concerning the 24 May incident. The findings concerning the 23 and 28 May incidents were upheld.
2. Leeds County Court — On 9 June 2004, His Honour Judge Kamil found three breaches of the order made on 13 May 2004, found the appellant in contempt, remanded him in custody and adjourned sentence pending a psychiatric report.
3. Permission to appeal — Scott Baker LJ granted permission on the papers on 29 June 2004 and directed that the appeal be expedited.