Andreewitch v Moutreuil

A court hearing committal proceedings must ensure that the accused knows of the right not to give evidence. It must also warn that silence may produce adverse consequences or inferences. The choice belongs to the accused, including an experienced or apparently willing litigant in person.

A breach does not automatically invalidate the proceedings. The court may waive a procedural defect only if satisfied that no injustice was caused. Failure to explain the right to silence is not merely technical. Where oral evidence materially influenced findings of contempt and it is uncertain whether informed consent would have led to that evidence being given, the court cannot be satisfied that no injustice occurred.

The appellant sought permission to appeal against findings that he had knowingly breached a freezing order by causing a company to pay his personal expenses and legal fees. The committal application had been heard in the High Court by Lieven J. The appellant represented himself, waived legal representation and entered the witness box at the judge's invitation. He was then cross-examined for about two hours.

Although the judge had explained his rights to representation and legal aid, nobody informed him that he was entitled not to give evidence. His oral evidence materially influenced the findings against him. The central issue was whether that omission was a procedural irregularity and, if so, whether the court could be satisfied that it had caused no injustice.

1. Appeal allowed. A person accused of contempt has a right to remain silent and an absolute right not to enter the witness box. The court must ensure that the accused knows that evidence need not be given. It must also warn that adverse consequences or inferences may follow from silence. These messages may be in tension, but the choice belongs to the accused rather than the court or the opposing party.

2. The safeguard is especially important for an unrepresented litigant. It applies equally to an experienced litigant in person and to someone apparently eager to give evidence. A reference to the relevant procedural rules in the opposing party's skeleton argument did not discharge the court's duty. The judge's invitation to enter the witness box was inconsistent with an informed choice.

3. Committal proceedings are capable of leading to punishment and therefore attract special safeguards. Nevertheless, their overall objective remains fairness to the parties and the public interest in maintaining the authority of court orders. Paragraphs 13.2 and 16.2 of the relevant practice directions permit a procedural defect to be waived if the court is satisfied that no injustice was caused. Purely technical defects need not invalidate proceedings.

4. The omission in this case was not technical. The right to silence is a core element of criminal proceedings and proceedings of a criminal character. The findings could therefore stand only if the Court of Appeal was satisfied that the omission caused no injustice.

5. That condition was not met. The freezing order permitted payments of proper company liabilities, so the payments alone did not prove contempt. The judge's conclusion that the appellant knowingly made improper payments depended substantially on her assessment of his oral evidence. His written document could have been signed and admitted without his giving oral evidence. Had he been informed of his choice, he might have remained silent, and the findings might then have differed.

6. The serious procedural irregularity justified permission to appeal and the appeal's allowance. The High Court's order and findings were set aside. The respondent was required to decide within 14 days whether to restore the committal application. There was no order for costs in either court.

• Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was allowed. The High Court's findings and order were set aside. The respondent was given 14 days to decide whether to restore the committal application.
• High Court (Family Division): Lieven J found to the criminal standard that the appellant had deliberately and knowingly breached a freezing order. Sanction was reserved to a later hearing and an indemnity costs order was proposed.