Douherty v The Chief Constable of Essex Police

Committal proceedings for breach of an injunction require scrupulous observance of safeguards protecting liberty. Where an unrepresented respondent is eligible for legal aid and faces imprisonment, the court should adjourn if needed to enable legal advice and representation.

The respondent must be told of the right to remain silent. If the respondent elects to give evidence, the court must warn of the risk of self-incrimination. A further adjournment may be necessary to secure properly informed mitigation. A committal order cannot stand where procedural failures, considered separately or cumulatively, deprive the respondent of those valuable safeguards and of a fair hearing.

The respondent chief constable obtained a gang injunction against the appellant under section 34 of the Policing and Crime Act 2009. The appellant was subsequently arrested and brought before Chelmsford County Court for alleged breaches of several conditions, including conditions concerning presence in Grays Town Centre, possession of a knife, controlled drugs and notification of mobile telephones.

HHJ Murfit dealt with the committal application on 2 October 2018 while the 18-year-old appellant was unrepresented. He gave evidence and made admissions. The judge imposed four consecutive seven-day terms of imprisonment, suspended for 12 months. The appellant appealed as of right under section 13 of the Administration of Justice Act 1960.

The central issue was whether procedural failures in the committal hearing had deprived him of a fair hearing.

Decision

1. The court allowed the appeal, quashed the committal order and remitted the contempt application for a fresh hearing before a different judge.

2. The hearing was not so urgent that it could not be adjourned. The judge knew that the appellant was unrepresented, was likely eligible for legal aid, had spent his first night in custody, was inexperienced in court proceedings, and faced the loss of liberty. In those circumstances, the judge should have adjourned at the outset to enable him to obtain legal aid and representation. Raising that possibility only after he had given evidence was too late.

3. Once the judge proceeded with an unrepresented respondent, she should have informed him of his fundamental right to remain silent. Having elected to give evidence, he should also have been warned of the risk of self-incrimination. The court applied the safeguards articulated in [2016] EWCA Civ 173 and the strict approach to procedural fairness reflected in [2015] 1 WLR 109.

4. The appellant was also denied an effective opportunity to advance mitigation. His age, lack of previous convictions and personal circumstances were not properly explored. The judge gave no reasons for immediate custody or consideration of an alternative disposal. The court additionally noted that, given his age, the appropriate terminology was detention rather than imprisonment, and that the suspension period had not been specified.

5. The four procedural failures, both individually and cumulatively, deprived the appellant of valuable safeguards designed to ensure a fair hearing. The respondent's submission that the result would probably have been the same could not cure that unfairness.

• Court of Appeal (Civil Division) — Allowed the appeal in [2019] EWCA Civ 55, quashed the committal order and remitted the contempt application for a fresh hearing before a different judge.
• Chelmsford County and Family Court — On 2 October 2018, HHJ Murfit found four breaches of the injunction and imposed 28 days' imprisonment, suspended for 12 months.
• Chelmsford County Court — On 25 September 2018, HHJ Lochrane granted the gang injunction under section 34 of the Policing and Crime Act 2009.