B (Algeria) v Secretary of State for the Home Department

Where the basis on which a court sentenced a person for contempt was flawed, an appellate court must assess afresh whether imprisonment is appropriate in light of the facts correctly understood. The sentence itself is not inevitably wrong.

The appellate court may determine the proper sentence where it has all relevant facts. Remittal is required only where fresh investigation of new facts is needed and should be undertaken at first instance. If the flawed reasoning did not influence the term selected, the appellate court may assess that term by asking whether it was manifestly excessive.

Committal may serve coercive and penal purposes. Imprisonment may therefore be appropriate to punish contempt even where it will not induce compliance.

B, an Algerian national who had withheld his true identity, deliberately disobeyed an order of the Special Immigration Appeals Commission requiring identifying particulars and consent to DNA testing. SIAC committed him to prison for four months for contempt.

The Court of Appeal, in [2011] EWCA Civ 828, held that SIAC had misappraised the psychiatric evidence concerning the risk that imprisonment would cause B to relapse into paranoid psychosis. The majority nevertheless dismissed his appeal. It concluded that imprisonment was justified as punishment and that arrangements existed for hospital transfer if he relapsed. Etherton LJ would have remitted the case to SIAC.

The appeal concerned whether the Court of Appeal had deferred improperly to SIAC, whether it was entitled to assess the sentence by asking if it was manifestly excessive, and when a flawed or procedurally unfair contempt sentence must be remitted.

1. Appeal dismissed unanimously. Lord Kerr delivered the judgment, with which Lord Neuberger, Lady Hale, Lord Sumption and Lord Carnwath agreed.

2. Once an appellate court finds that the basis of a contempt sentence was flawed, it must assess afresh whether imprisonment is the proper disposal on a correct understanding of the material circumstances. The original sentence is not necessarily wrong merely because the sentencing court gave erroneous reasons. Affirming it does not endorse those reasons.

3. The fresh assessment need not be conducted by the original court. Where the appellate court possesses all relevant facts, it may determine the proper sentence itself. Remittal is suitable where new facts require fresh investigation and it is necessary or desirable for that work to be undertaken at first instance. The Court of Appeal could evaluate the medical evidence reliably and was entitled to decide the sentence.

4. Committal may seek to induce compliance, punish disobedience, or achieve both purposes. Existing restrictions upon a contemnor’s liberty are immaterial where committal can reasonably be expected to secure compliance. They are also unlikely to carry substantial weight where imprisonment is required as punishment.

5. The Court of Appeal had undertaken the required fresh assessment. It effectively accepted that imprisonment would not coerce B into revealing his identity. It also proceeded on the basis that imprisonment created a real risk of psychotic relapse, but held that this did not preclude a prison sentence because arrangements permitted transfer to hospital if the risk materialised. The majority justified committal as punishment for grave and deliberate contempt.

6. An appellate court should not invariably test a sentence selected on a flawed basis only by asking whether it was manifestly excessive. That approach may be inappropriate where the erroneous reasons influenced the sentence’s length. Here, however, SIAC selected four months to reflect the seriousness of the contempt, rather than its mistaken view of the medical risk. The Court of Appeal could therefore consider whether that term was manifestly excessive.

7. The first certified question required no answer. On the second, remittal is necessary only where fresh investigation of new facts is required and should be undertaken by the first-instance court.

• United Kingdom Supreme Court: Dismissed B’s appeal and upheld the Court of Appeal’s decision.
• Court of Appeal: In [2011] EWCA Civ 828, the majority dismissed the appeal against committal despite finding that SIAC had erred in its assessment of the psychiatric evidence. Etherton LJ would have remitted the case.
• Special Immigration Appeals Commission: Committed B to prison for four months for deliberate and contumelious refusal to comply with its order to provide his true identity and other particulars.