CJ v Flintshire Borough Council

An application for early discharge from imprisonment for civil contempt requires a legal judgment on all the circumstances, rather than an unfettered discretion. For breach of a prohibitory injunction, continued detention may serve a protective, rather than coercive, purpose by reducing the risk of further breach.

The court will normally need to be satisfied that punishment has become proportionate and that early discharge will not significantly prejudice the rule of law. Genuine contrition will usually be necessary but will not by itself justify release. Relevant matters include practical arrangements, steps to prevent further breach, time served and any special factors. The factors are not a tick-list. Detention and any refusal of early discharge must remain necessary and proportionate under ECHR article 5.

The appellant had been committed to prison for 21 months for repeated breaches of an injunction prohibiting unauthorised contact with his minor children. Three months activated an earlier suspended committal order, and 18 months punished further breaches. The injunction had been made following findings that he posed a grave risk of sexual abuse to his children.

HHJ Farmer QC, sitting as a judge of the High Court in the Family Division, refused the appellant’s application for immediate early discharge on 4 March 2010. The judge found that the appellant’s contrition was neither genuine nor realistic, that he had made no effective arrangements to prevent further breaches, and that continued detention was necessary and proportionate to protect the children.

The appellant appealed, challenging the judge’s treatment of the evidence, practical arrangements, contrition and sexual-risk history. He also suggested suspending the unexpired term.

1. Appeal dismissed. The court upheld the refusal of early discharge. The judge had heard the appellant and was entitled to find that his application was not bona fide, that he lacked a firm resolve to avoid further breach, and that early release would accelerate the children’s exposure to the risk which the injunction addressed.

2. Wilson LJ, with whom Aikens LJ and Sedley LJ agreed, held that the analysis of coercive committal in Enfield LBC v Mahoney [1983] 2 All ER 901 required adaptation. In a case of breach of a mandatory order, continued imprisonment may coerce compliance. In a case of breach of a prohibitory injunction, the relevant enquiry is the protective effect of continued detention: whether early discharge is likely to lead to further breach and compromise the safety of those protected by the order.

3. The court identified eight overlapping matters relevant to early discharge. They include proportionality of punishment already suffered, the public interest in upholding the rule of law, genuine contrition, practical steps and arrangements to avoid further breach, additional protective proposals, time served, and special factors. Favourable answers to every question are unnecessary, but the factors must be assessed together. Genuine contrition will usually be necessary but may be insufficient, as illustrated by Johnson v Grant [1923] SC 789.

4. The appellant’s proposed return to a girlfriend living near the children’s foster homes did not reduce the risk. She had been aware of earlier breaches, and there was no reliable evidence that the proposed arrangements would prevent further unauthorised contact. The judge was also entitled to consider the appellant’s failure to take meaningful steps towards addressing the risk which had led to the injunction.

5. Sedley LJ, with Aikens LJ expressly agreeing, held that partial suspension of a sentence of imprisonment for contempt during its currency was unavailable under Harris v Harris [2001] EWCA Civ 1645. Sedley LJ added, obiter, that rule change might merit consideration. Aikens LJ further observed that detention for contempt and decisions on early discharge must be necessary and proportionate under article 5 of the ECHR.

• Court of Appeal (Civil Division) Dismissed the appeal: [2010] EWCA Civ 393.
• High Court, Family Division HHJ Farmer QC refused early discharge on 4 March 2010. The same judge had committed the appellant to prison for 21 months for contempt on 17 November 2009.