Jonathan David Rowland & Anor. v Kevin Gerald Stanford

A contemnor may be discharged where there is a legally recognised reason for discharge, but the power is not an unfettered discretion. On an application following imprisonment for contempt, the court should assess the case holistically, including punishment already served, the effect on the rule of law, contrition, the steps taken towards compliance, what the contemnor can reasonably do in his circumstances, proposed future conduct, time served and any special factors. The questions identified in CJ v Flintshire Borough Council are overlapping evaluative questions, not a mechanical checklist. Where substantial compliance has occurred but further information can fairly be provided after release, the court may grant release and impose further time for compliance.

The defendant had been committed to prison on three counts of contempt for failing to comply with an order requiring the imaging of an archive, production of communications and an affidavit concerning the archive and its disclosure to third parties. The sentences were concurrent eight-month terms, with half attributed to past contempts and half to continuing contempts.

At an adjourned hearing, the defendant applied for discharge. Imaging had been completed, a search protocol had been agreed and a further affidavit had been sworn. The remaining dispute concerned whether the affidavit sufficiently addressed the second part of the order, and the defendant’s attempted reliance on privilege against self-incrimination. The central issue was whether the contempt had been satisfactorily purged so as to justify release.

1. Power and governing approach. The court’s inherent power to discharge a person committed for contempt was preserved by Contempt of Court Act 1981, section 14(1). Its exercise required a reason for discharge known to law. The contemnor had to advance that reason.
2. Assessment of early discharge. The overlapping questions identified in CJ v Flintshire Borough Council [2010] 2 FLR 1224 remained relevant, although the earlier case concerned a prohibitory order and the present case concerned a mandatory order. They were to be treated as windows on a case-specific problem rather than as a tick-list. The court considered whether the punishment for past contempts had been served, whether early release would prejudice the rule of law, whether there was genuine contrition, what steps had been taken towards compliance, what the defendant could reasonably do in prison, what future conduct was proposed, the time served and any special factors.
3. Application to compliance. The imaging exercise and search protocol sufficiently addressed paragraphs 1 and 2 of the order. The first part of paragraph 3 had also been met by a good-faith affidavit which went as far as could reasonably be expected in the circumstances. The second part remained incomplete, but the defendant’s imprisonment prevented him from properly reviewing the imaged data. It was fairer and more effective for him to provide a route map through that data after release than to require guesswork while incarcerated.
4. The defendant’s attempted reliance on privilege against self-incrimination was vague, late and unsupported by identification of a specific offence. He abandoned any further reliance on the privilege. A further order would therefore require completion of the outstanding affidavit within 28 days and would not retain the earlier proviso.
5. The defendant had served the custodial period attributed to his historic contempts and had satisfactorily purged the contempt to the extent required. He was ordered to be released and discharged. The claimants recovered the costs of the two hearings, summarily assessed at £80,000, reflecting a reduction for proportionality.