His Majesty's Attorney General v Elavi Dowie

A court may impose a sentence for contempt consecutively to an existing criminal sentence where the contempt warrants a separate penalty. The court must observe the totality principle and consider the distinct purposes of the sentences.

Costs in committal proceedings are governed by the ordinary principles of reasonableness and proportionality. Costs normally follow the event, but the court must make an order that is fair, just and reasonable. Although consideration of the contemnor’s means is not invariably required, it is necessary where inability to pay is apparent and likely to persist. The court must explain why it nevertheless makes the order.

The appellant covertly recorded private family proceedings and published three videos containing the recordings on YouTube. The Attorney General brought committal proceedings alleging breaches of section 9(1) of the Contempt of Court Act 1981 and section 12 of the Administration of Justice Act 1960.

MacDonald J found the appellant guilty of contempt in [2022] EWFC 25. He subsequently committed him to eight months’ imprisonment, consecutive to an existing eight-year criminal sentence, and ordered him to pay £9,400 towards the Attorney General’s costs in [2022] EWFC 33.

The appellant challenged the procedure, findings of contempt, custodial penalty and costs order. At the hearing he pursued only the costs challenge, but the other grounds had not been formally withdrawn. The principal live issue was whether the judge had properly exercised the costs discretion without considering the appellant’s means.

1. The appeal was allowed only in relation to costs. The appeals from the findings of contempt and the custodial penalty were dismissed. The £9,400 costs order was replaced by an order for £2,500, not enforceable without permission from a Family Division judge.

2. The committal and sentencing hearings were public. An inadvertent statement by a court clerk could not alter that fact. The use of a video link caused no unfairness. The refusal to permit cross-examination of the Attorney General’s legal adviser was a lawful and plainly correct case-management decision because the relevant facts were undisputed. The allegations of prejudgment and judicial bias were also unfounded.

3. Pernicious and persistent contempt involving covert recordings and publication of deeply private family material will almost always warrant imprisonment. The eight-month term was amply justified by the aggravating features and limited mitigation.

4. The High Court possessed a common-law power to impose the contempt sentence consecutively to the existing criminal sentence. The sentences addressed different wrongdoing and served different purposes. One punished offences against the victims; the other punished interference with the administration of justice and promoted deterrence. The combined sentences did not infringe the totality principle.

5. Under Part 44 of the Civil Procedure Rules 1998, costs in committal proceedings are governed by reasonableness and proportionality. Costs normally follow the event, and a contemnor will ordinarily bear them in addition to any penalty. The governing requirement is nevertheless an order that is fair, just and reasonable. Means may be considered but need not invariably be investigated.

6. Here, the appellant was already serving a lengthy sentence and had no apparent present or future means. Those circumstances required the judge to consider his means and explain why a substantial order was nevertheless appropriate. The absence of any indication of how that discretion had been exercised was an error of approach.

7. The court declined to determine whether contempt under section 9(1) of the Contempt of Court Act 1981 or section 12 of the Administration of Justice Act 1960 requires an intention to interfere with the administration of justice. The first-instance ruling was unnecessary because such intention had been proved. The issue should await a case in which it affects the outcome and receives full argument.

1. Court of Appeal (Civil Division): By [2022] EWCA Civ 1574, dismissed the appeals from the findings of contempt and the custodial sentence, but allowed the costs appeal. It substituted a £2,500 costs order whose enforcement required judicial permission.
2. High Court, Family Division: MacDonald J found the appellant guilty of contempt in [2022] EWFC 25. In [2022] EWFC 33, he imposed eight months’ imprisonment consecutive to the appellant’s existing sentence and ordered him to pay £9,400 in costs.