Medway Council v Root

In contempt proceedings, the applicant must prove each alleged breach to the criminal standard. The application must identify each act of contempt separately and in full. Procedural defects may be waived only with regard to fairness and any prejudice caused.

A hyperlink ordinarily communicates the existence or location of material, rather than publishing the material itself, unless the order or surrounding facts make the position clear. Whether spoken words constitute displaying material is fact-dependent. Where repeated breaches continue despite suspended sentences and other measures, immediate custody may be necessary both to mark disobedience and to secure future compliance.

Medway Council applied to commit Sara Jayne Root for 14 alleged breaches of injunctions, a non-molestation order, a reporting restrictions order and a suspended sentence order. The allegations concerned internet publications, videos, tweets, hyperlinks and documents relating to earlier care proceedings concerning two of her children.

The court considered whether the alleged publications had been proved, whether hyperlinks amounted to publication, whether spoken words in a video amounted to displaying material, and whether various documents contained court papers or information relating to the proceedings. Thirteen breaches were found proved on 25 February 2019. The court then determined the appropriate sentence on 6 March 2019.

1. Proof and procedure. The applicant bore the burden of proving each alleged breach to the criminal standard. The respondent was not required to prove anything, and any uncertainty had to be resolved in her favour. The application had to set out fully and separately each alleged act of contempt under rule 37.10(3)(a) of the Family Procedure Rules 2010. The court could waive procedural requirements, but had to consider fairness, prejudice and the interests of justice, applying the guidance in Nicholls v Nicholls [1997] 1 FLR 649.
2. Evidence. The respondent was not a compellable witness. Although the statutory inference provisions did not apply to civil contempt, an adverse inference could be drawn at common law from silence or from an affidavit where the respondent declined to be cross-examined, as explained in Great Future International Ltd v Sealand Housing Corporation [2004] EWHC 124 (Ch). Similar-fact evidence could be admitted where its striking similarity gave it probative value, subject to balancing prejudice, applying DPP v Boardman [1975] AC 421.
3. Hyperlinks and display. Following Crookes v Newton [2011] 3 S.C.R. 269, a hyperlink, without more, was a reference to the existence or location of content and was not publication of the content itself. Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 was distinguishable because the website also contained an article indicating adoption or promotion of the linked material. The question whether spoken words in a video constituted displaying material was fact-dependent.
4. Findings and sentence. The court found 13 breaches proved, involving publications of videos, documents and information identifying or concerning the children. The hyperlink allegations were not proved. The earlier suspended six-month sentence was activated. Three months was imposed for the new breaches, concurrent with each other but consecutive to the activated sentence, producing an immediate custodial sentence of nine months.
5. Purpose of committal. Applying Ansah v Ansah [1977] Fam 138 and Hale v Tanner [2000] 2 FLR 879, committal was a remedy of last resort serving both to mark disobedience and to secure future compliance. Repeated breaches after two suspended sentences meant that no alternative was likely to secure compliance. The respondent could apply to purge her contempt.

The judgment is a first-instance decision. It records that earlier findings and orders concerning the respondent had been challenged unsuccessfully in the Court of Appeal, including an appeal dismissed on 22 November 2017.