Swindon Borough Council v Webb (t/a Protective Coatings)

A court considering the early discharge of a person imprisoned for civil contempt must determine whether the contemnor has received sufficient punishment and whether the interests of justice favour release. For breach of a prohibitory order, continued detention may serve a protective purpose by reducing the risk of further breaches.

A sincere apology is relevant but does not alone justify discharge. The court should consider all current circumstances, including proportionality, respect for the rule of law, contrition, future compliance and the protection of those benefiting from the order. Ordinarily, the procedure in rule 81.31 of the Civil Procedure Rules 1998 should be followed, with notice to the person or body which obtained the committal warrant.

The council obtained a restraining order against a trader under its consumer-protection enforcement powers. After four breaches were proved in his absence, the County Court committed him to prison for four concurrent terms of four months. Eight days after his arrest, he was brought before a Recorder without an application for discharge having been made and without notice to the council. The Recorder accepted an apology and promise of compliance as purging the contempt and ordered his immediate release.

The council appealed, alleging procedural irregularity, inadequate information, failure to hear the council and undue leniency. By the hearing, the passage of time made a return to prison unrealistic. The central issues were the proper procedure and substantive approach when considering early discharge from imprisonment for civil contempt.

1. Appeal dismissed. The Recorder had failed to give proper consideration to whether the contemnor had received sufficient punishment and whether the interests of justice favoured early discharge. Nevertheless, the order was not set aside because the passage of time meant that doing so could expose the contemnor to an inappropriate return to prison.
2. The procedure prescribed by rule 81.31 of the Civil Procedure Rules 1998 had not been followed. No written application for discharge was made and the council received no notice of the hearing. In cases of this kind, courts should ordinarily insist upon that procedure. Where possible, the application should be listed before the judge who imposed the committal order.
3. A court acting of its own initiative should ordinarily, so far as practicable, notify the person or body at whose instance the committal warrant was issued. That party has a legitimate interest in addressing whether release should occur before the contemnor has served the applicable term.
4. The early-discharge exercise is not directly analogous to appellate review of an unduly lenient sentence. Civil committal has both punitive and coercive purposes. For breach of a prohibitory order, the coercive inquiry must be adapted to consider the protective effect of continued detention and the likelihood that early release would lead to further breaches.
5. The court should consider whether sufficient punishment has been served and whether the interests of justice favour release. Relevant matters include proportionality, respect for the rule of law, the genuineness of contrition, demonstrated ability and resolve to comply, practical arrangements reducing the risk of breach, proposed protection for beneficiaries of the order, time served and any special factors. These matters form a case-specific evaluation, not a checklist requiring favourable answers throughout.
6. A belated apology and promise of compliance are relevant but may be insufficient. A judge needs a legally recognised reason for discharge and should consider new circumstances arising since sentence. Here, the contemnor largely repeated what the Recorder had told him was necessary for release. His apology and undertaking were almost entirely devoid of content and fell well short of the considered contrition demonstrated in Poole Borough Council v Hambridge [2007] EWCA Civ 990.

1. Court of Appeal (Civil Division): The council’s appeal was formally dismissed in [2016] EWCA Civ 152. The court nevertheless held that the Recorder had followed an irregular procedure and had not properly assessed whether early discharge was justified.
2. Swindon Combined Court, Mr Recorder De Freitas: The Recorder accepted that the contemnor had purged his contempt and ordered his immediate release after eight days in custody.
3. Swindon County Court, Judge Ambrose: Four breaches of the restraining order were proved. The defendant was committed to prison for four concurrent terms of four months.
4. Swindon County Court: A restraining order was made in 2006 and amended in 2007 under the council’s consumer-protection enforcement proceedings.