Medway Council v Root (2)

In committal proceedings for contempt, the applicant must prove the alleged breach to the criminal standard. A court may rely on the surrounding circumstances, legal representation and the clarity of an undertaking to determine whether the respondent understood its nature and effect. Where that understanding is established, deliberate non-compliance with the undertaking constitutes a breach. Publication of information prohibited by a reporting restriction order may constitute a separate breach.

Medway Council applied for the respondent to be committed for contempt. The application alleged breaches of an undertaking given on 12 December 2016 and of a reporting restriction order made on the same day. The undertaking required removal of Facebook posts concerning care proceedings and prohibited further publication until a later hearing.

The respondent accepted making the relevant posts and failing to remove them, but disputed understanding the undertaking and reporting restrictions. She relied on ill health and failure to take medication. The central issues were whether she understood the undertaking and whether the identified publications breached the undertaking and the reporting restriction order.

1. The Local Authority bore the burden of proving the alleged breaches beyond reasonable doubt, applying the criminal standard required in contempt proceedings (para [17]).
2. The court was sure that the respondent understood the nature and effect of the undertaking when she gave it. She was represented by counsel, had been separately informed by the judge of the undertaking’s meaning and consequences, was able to give instructions, and had no apparent incapacity at the hearing. The undertaking was written in clear and simple terms (paras [19]-[20]).
3. The respondent’s Facebook post on 13 December 2016 demonstrated that she understood the promise made to the court. Her subsequent decision not to comply was a change of mind rather than a failure to understand the undertaking. Her later assertion of illness was rejected (paras [21]-[22]).
4. The court was sure that the respondent made the Facebook posts on 13 December 2016, 22 December 2016 and 20 February 2017. All three posts breached the undertaking because she had not removed the material and had published further material concerning the proceedings. The posts on 13 December 2016 and 20 February 2017 also breached the reporting restriction order (para [23]).
5. The Local Authority therefore proved the alleged breaches of both the undertaking and the reporting restriction order. The judgment records the finding of breach; no separate sentencing order is stated in the supplied text.