Matin v HM Attorney General & Anor

When deciding whether contempt proceedings should be instituted in circumstances affecting a child, the child’s welfare is important but is not automatically paramount. The court must understand the likely consequences of the proposed proceedings, including any necessary involvement of the child as a witness. A decision based on a material factual mistake is unsustainable.

Oral evidence is generally undesirable on an application of this kind, but the first-instance discretion must be exercised on sufficient information. An appellate court may exercise the discretion afresh where exceptional circumstances and subsequent material make remittal inappropriate. A decision confined to unusual facts creates no general immunity from contempt proceedings.

The Attorney-General sought a declaration that the welfare and interests of Forhad Matin did not preclude contempt proceedings against Michael John Pelling arising from an incident outside the Family Division. The President of the Family Division granted the declaration after an expedited hearing and refused an application for Dr Pelling to give oral evidence.

Mr Matin challenged the refusal of oral evidence, the sufficiency of the Attorney-General’s case summary and the President’s understanding of the likely effect of the proceedings on Forhad. The central issue was whether the declaration had been made in the proper exercise of discretion and, if not, whether the Court of Appeal should remit the matter or decide it afresh.

1. Appeal allowed. The President’s declaration was set aside. The appeal concerned only the proposed contempt proceedings arising from the incident outside court 32; publication contempt proceedings concerning an article in the East London Father’s Journal remained unaffected.
2. The case summary was sufficient for the limited purpose of assessing the general nature and gravity of the alleged contempt. Detailed factual challenges were matters for any subsequent contempt proceedings.
3. The first-instance discretion concerning oral evidence was very wide, and oral evidence would generally be undesirable. However, the exceptional chronology meant that the parties had insufficient time to put forward written cases. Dr Pelling’s evidence showed that Forhad would probably have had to give evidence as a front-line witness if the proceedings proceeded to trial.
4. The President’s decision rested on a fundamental factual error. Her conclusion that Forhad, because he lived with his father, did not need to know about the case reflected a false understanding of the likely proceedings. The declaration therefore could not stand.
5. The Court of Appeal exercised the discretion afresh rather than remitting the matter. Having regard to the further 15 months’ hindsight, Forhad’s settled circumstances, the likely detriment of involving him in a re-enactment of the incident and the separation of the conduct contempt from the publication contempt, the declaration was refused.
6. The court considered the procedure derived from Re M (Contact Order: Committal) [1999] 1 FLR 810. Wall J added that the guidance was directed to a judge initiating committal proceedings of his own motion and that the factual differences made general guidance inappropriate. The decision was confined to its extraordinary facts. The possibility that contempt proceedings may involve a child does not itself confer immunity from the contempt process. The respondent was ordered to pay the appellants’ costs of £755.

• Court of Appeal (Civil Division): appeal allowed; the declaration was set aside and the discretion exercised afresh, with the declaration refused.
• High Court, Family Division: the President granted a declaration that the child’s interests did not preclude institution of contempt proceedings against Dr Pelling and refused oral evidence on the application.