Begum v Anam

Committal proceedings involving possible imprisonment amount to a criminal charge for the purposes of article 6 of the European Convention on Human Rights. Where liberty is at stake, the interests of justice in principle call for legal representation.

A court should not determine such proceedings in the respondent’s absence where a short adjournment would permit attendance and legal advice, representation could materially affect the evidence or mitigation, and an adjournment would cause no material prejudice. An order made without those safeguards may be set aside and the applications remitted for rehearing.

The respondent obtained non-molestation and occupation-related orders against the appellant, followed by a suspended committal order. She later issued applications alleging further breaches. The appellant was served while imprisoned for an unrelated matter and requested an adjournment to obtain legal advice, but no production warrant was issued.

His Honour Judge Hamilton refused the adjournment, heard the applications while the appellant was absent and unrepresented, found breaches and imposed a total sentence of 18 months’ imprisonment. The appellant appealed on the ground that the procedure had infringed his rights under article 6 of the European Convention on Human Rights. The central issue was whether the judge should have adjourned the committal proceedings to enable the appellant to attend and obtain representation.

1. Appeal allowed unanimously. The committal order should not have been made while the appellant was absent and unrepresented. The applications were remitted to the Luton County Court for rehearing, and the appellant was to be released from custody.

2. Mr Justice Bennett held that the committal proceedings were, in effect, a criminal charge for article 6 purposes. The authority of Re K (Contact: Committal Order) [2002] EWCA Civ 1559 was important and should be followed. When deprivation of liberty is at stake, legal representation is in principle required by the interests of justice.

3. The county court should have considered a short adjournment so that the appellant could attend and obtain legal representation if advised. Representation might have changed the outcome. Counsel could have cross-examined the respondent, called evidence for the appellant and presented mitigation relevant to sentence.

4. A short adjournment would not have prejudiced the respondent. The failure to place Re K before the county court contributed to the erroneous decision to proceed. The order finding breaches and imposing imprisonment was therefore set aside.

5. Lord Justice Keene and Lord Justice Thorpe agreed with Mr Justice Bennett’s judgment and proposed order. The applications were remitted for rehearing before Her Honour Judge Pearce. There was no order for costs, apart from assessment of both parties’ publicly funded costs.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 578, the court unanimously allowed the appeal, set aside the committal order, directed the appellant’s release and remitted the applications to the Luton County Court for rehearing.

2. Luton County Court: His Honour Judge Hamilton refused an adjournment, found breaches of the earlier orders and imposed a total sentence of 18 months’ imprisonment while the appellant was absent and unrepresented.