Griffith v P (By Her Litigation Friend the Official Solicitor)

An appeal against committal for contempt may be decided in the appellant’s absence where the appellant has had every opportunity to be represented and has no good reason for not attending. A careful finding of deliberate contempt and a balanced sentencing exercise may justify immediate custody even where harm is limited and there is no violence or personal gain. Lack of acceptance, remorse or apology is material. A contemnor may apply to the trial court to purge the contempt, and a genuine apology will be carefully reviewed.

P, a woman with a permanent disorder of consciousness, was represented by the Official Solicitor in Court of Protection proceedings. After the proceedings ended, the appellant sent a purported court order to a hospital, obtaining P’s medical records directly despite earlier unsuccessful applications for disclosure.

Following a committal hearing at which the appellant did not attend, Mr Justice MacDonald found contempt proved and imposed 12 months’ immediate imprisonment. The appellant appealed out of time, challenging the procedure, the finding of contempt and the proportionality of the sentence. The Official Solicitor adopted a neutral position. The central issues were whether the appeal should proceed in the appellant’s absence and whether the committal order or sentence disclosed any appealable error.

Appeal dismissed. Time for appealing was extended, and the appeal was determined in the appellant’s absence.

1. The appellant had every opportunity to obtain representation and had chosen to represent herself. The medical evidence did not establish that she was unable to attend court. There was therefore no good reason to adjourn or defer the appeal.
2. MacDonald J had directed himself carefully on the law and procedure governing committal for contempt, including the helpful summary in Sanchez v Oboz [2015] EWHC 235 (Fam). He had also addressed the appellant’s arguments that she had not falsified the order, had acted in good faith and had not interfered with the administration of justice. His finding of deliberate contempt was supported by compelling reasoning and was inevitable on the evidence.
3. The sentencing exercise was careful, balanced and proportionate. Relevant mitigation included the appellant’s motivation in the context of difficult family proceedings, the limited harm to P, the absence of violence or personal gain, the impact of imprisonment during the pandemic and her good character. Against that stood the seriousness of interference with the administration of justice, the deliberate nature of the contempt and the absence of remorse or any appreciation of its gravity.
4. Although 12 months was a long sentence, immediate custody was necessary and the custody threshold had been crossed. The grounds based on default judgment, delay, the overriding objective and Wednesbury unreasonableness disclosed no error.
5. Peter Jackson LJ added that contemnors have an opportunity to seek to purge their contempt by applying to the trial court. Acceptance of contempt and a genuine apology should be carefully reviewed. Coulson LJ observed that recent changes to CPR Part 81 would simplify contempt procedure, but detailed assessment of the facts, law and sentencing factors would remain necessary.

• Court of Appeal (Civil Division): In [2020] EWCA Civ 1675, time for appealing was extended and the appeal against committal and the 12-month custodial sentence was dismissed.
• Court of Protection: In [2020] EWCOP 46, Mr Justice MacDonald found the appellant in contempt for deliberate forgery of a court order and imposed immediate imprisonment for 12 months.