James, R (On the Application Of) v HM Prison Birmingham & Ors

A civil contemnor has no statutory entitlement to credit for time spent on remand. The prison authorities have no power to deduct that period from the term of committal. A committing judge may reflect the remand period by reducing the fixed term imposed, but is not obliged to do so.

The committal order must state a fixed term on which the prison can rely. An unrecorded judicial intention cannot alter the order, and a later correction cannot operate retrospectively to prejudice prison authorities that relied on its original terms.

The different treatment of civil contemnors and convicted prisoners does not contravene articles 5 or 14 of the European Convention on Human Rights. Civil contempt has a coercive function which materially distinguishes it from punishment following criminal conviction.

The claimant was remanded in custody after his arrest for breaching a gang injunction and was subsequently committed to prison for three months for civil contempt. Although the committing judge intended the seven days on remand to be taken into account, the original committal order and warrant did not record that intention. The prison authorities therefore calculated the release date without deducting those days.

Lewis J refused permission to seek judicial review in [2013] EWHC 4657 (Admin). Laws LJ subsequently granted permission and retained the claim in the Court of Appeal.

The claimant contended that domestic law required the judge or prison authorities to credit time spent on remand. Alternatively, he argued that the absence of credit made the detention unlawful under article 5(1)(b), or discriminatorily treated civil contemnors compared with convicted prisoners contrary to article 14.

1. The application for judicial review was refused. The prison authorities were entitled to rely on the original committal order, which imposed three months' imprisonment without providing for the seven remand days to count. The judge's unrecorded intention could not alter the order. Under rule 40.7(1) of the Civil Procedure Rules 1998, a later correction could not operate retrospectively where that would prejudice third parties which had relied on the original order.

2. Sections 240ZA and 305 of the Criminal Justice Act 2003 exclude civil committals from the statutory scheme under which remand time counts towards a criminal sentence. The authorities, including Delaney v Delaney [1996] QB 387, establish that remand time does not automatically reduce a contemnor's sentence. The prison authorities consequently had no power to perform the deduction.

3. A judge committing a person for civil contempt may reflect time spent on remand by reducing the term imposed, but is not obliged to do so. The order must comply with section 14 of the Contempt of Court Act 1981 by specifying a fixed term. The amended formulation of three months with a fixed seven-day credit satisfied that requirement because both components were fixed. The preferable course is to state the resulting term directly, such as “three months less seven days”.

4. Article 5(1)(b) was not infringed. The remand was lawfully ordered under section 43(5) of the Policing and Crime Act 2009. Domestic law neither promises remand credit to civil contemnors nor requires a committing judge to allow it. The discretion to reduce the committal term therefore did not make the detention arbitrary.

5. Article 14 was also not infringed. It is not a freestanding prohibition and, in the absence of an article 5 violation, the required connection with another Convention right was absent. The court was bound by domestic authority that prisoner status was not “other status”, notwithstanding the later Strasbourg decision. In any event, a civil contemnor is not relevantly analogous to a person imprisoned following criminal conviction. Civil committal has a coercive function because the contemnor may secure earlier discharge by complying with the court's order.

Gloster and Arden LJJ agreed with Beatson LJ.

1. Court of Appeal (Civil Division): Permission having been granted by Laws LJ, the court considered the retained judicial review claim and refused it unanimously: [2015] EWCA Civ 58.
2. High Court, Administrative Court: Lewis J refused permission to apply for judicial review: [2013] EWHC 4657 (Admin).