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Case No: 2000/0253/B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ORDER OF
HIS HONOUR JUDGE MOSTYN QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 7 April 2000
B e f o r e :
LORD JUSTICE SIMON BROWN
and
LADY JUSTICE HALE
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SAMANTHA
GRIFFIN
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Claimant/Respondent
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and -
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LAWRENCE
DAVID GRIFFIN
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Defendant/Appellant
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Miss Cheryl Jones (instructed by Messrs Debo & Co, London N4) for
the Apellant)
Miss Delphine Breese-Laughran (instructed by David Levene & Co,
London N2) for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
LADY JUSTICE HALE:
1. This case raises a difficult question concerning the terms upon which the
court may suspend an order for committal for contempt of court. In short: is an
order suspended for so long as the contemnor complies with another order of
indefinite duration invalid?
2. On 15 March 2000, Assistant Recorder Mostyn QC, sitting in the county court
jurisdiction of the Principal Registry of the Family Division, committed the
appellant to prison for a total of six months, made up of two consecutive
terms: (1) four months for breaches committed on 29 October 1999 of an order
under Part IV of the Family Law Act 1996 made by His Honour Judge Downes on 1
June 1999; and (2) two months under a suspended sentence, also imposed by His
Honour Judge Downes on that date, activated because of a breach of the same
order committed on 18 June 1999.
3. The appellant and respondent married on 28 December 1994. They have two
daughters, one now nearly six and the other just four. A psychiatric report
reveals that the appellant has a long history of anxiety and depression with
some psychotic symptoms and a very long history of drug abuse and misuse of
alcohol. Proceedings between them began with Family Law Act orders with a power
of arrest made on 10 June 1998. Thereafter there were four arrests and four
committal hearings, two of which resulted in suspended committal orders,
although the parties did not finally separate until February 1999.
4. On 1 June 1999 there was a fifth committal hearing. His Honour Judge Downes
found proved two separate breaches of the most recent order, made by His Honour
Judge Callman on 4 February 1999. He ordered that the appellant
'. . . be committed for contempt to prison for a total period of 2 months. The
order is suspended and will not be put into force if and so long as the
contemnor complies with the following terms: the respondent complies with the
terms of the non-molestation and occupation orders of even date.'
5. The order is internally inconsistent in that the record of contempts proved
imposes concurrent penalties of one month's imprisonment for each breach, but
it is clear from the transcript of the judgment that His Honour Judge Downes
intended to impose two months' imprisonment for each breach and no point is now
taken upon that.
6. The non-molestation and occupation orders made that same day were expressed
to last 'until further order of the court' although the power of arrest which
was attached to all the substantive prohibitions in the order was to last until
1 December 1999. Hence the term of imprisonment was effectively suspended
indefinitely.
7. On the afternoon of 29 October 1999 an incident took place outside a public
house involving the respondent wife, her new partner Andrew Ross, the two
little girls, and the appellant. The police were called and the appellant was
arrested both for breach of the Family Law Act orders and for various criminal
offences. Next day His Honour Judge Levy attended at Paddington Green Police
Station for a committal hearing. He adjourned it to 1 November and remanded the
appellant in custody.
8. The matter came before Assistant Recorder Mostyn QC on 1 November. The wife
had filed an affidavit of that date. This dealt in detail with the events of 29
October and mentioned some of the background but did not deal with all the
alleged breaches which had taken place since 1 June 1999. The matter was
adjourned for 24 hours to allow her to serve a Notice to Show Cause detailing
her additional allegations later that day. That Notice dealt, among other
things, with an alleged breach on 18 June 1999.
9. The matter came back before Assistant Recorder Mostyn QC on 2 November. He
adjourned the committal application until 13 March 2000 and released the
appellant on conditional bail until then. The parties were ordered to file
their own affidavits and those of any witnesses upon whom they intended to rely
on or before 16 November 1999. Neither party was to call any witness who had
not made an affidavit so filed and served. The tape of the police interview of
the appellant was to be transcribed, agreed, filed and served. A further order
under the Family Law Act with power of arrest was made until 13 March 2000.
10. The appellant filed his own affidavit, dated 15 November 1999, and another
from a friend who had been with him on 29 October 1999. The respondent wife did
not file any more evidence until March 2000. She then filed two affidavits
dated 3 March 2000, one dealing with events before 2 November 1999, and one
dealing with events after. She also filed affidavits from Andrew Ross, her
mother, her sister, and a friend.
11. The hearing took place on 13 and 14 March 2000 before Assistant Recorder
Mostyn QC (sitting as a Deputy High Court Judge but not on this occasion
exercising the High Court jurisdiction). Objection was taken to the late filing
of the respondent's evidence and the judge excluded the affidavits from the
respondent's mother, sister and friend. An objection to the interview
transcript was withdrawn. The judge heard oral evidence from the parties and
from Andrew Ross. Objection was taken to Mr Ross's evidence and the judge
excluded certain parts of it which were new but admitted those parts dealing
with events of 29 October 1999 which in his view contained no element of
surprise as the essence had been put to the respondent during his police
interview. The judge found the alleged breach on 18 June 1999 and some of the
allegations about the incident on 29 October 1999 proved.
12. On 15 March 2000, having heard argument about the validity of the suspended
committal order made by His Honour Judge Downes, the judge made the committal
orders but stayed them for 14 days pending an appeal. The appeal came before
this Court on 28 March 2000, when it was dismissed for reasons to be given
later.
13. Miss Jones, on behalf of the appellant, has attacked both parts of the
order, but the attack on the first can be dealt with shortly. She complains
that the judge should not have admitted the late filed evidence, as to the
incident on 29 October 1999, and in particular the oral evidence of Mr Ross.
However, as the account given above shows, the judge gave careful consideration
to the extent to which the appellant might have been prejudiced by the late
filing of evidence. He excluded some of this evidence even though it concerned
allegations already dealt with in some detail in the Notice to Show Cause and
had been served more than a week before the hearing. This was pre-eminently a
matter for the trial judge and there is no basis for the suggestion that the
appellant did not receive a fair trial as a result.
14. The same applies to the first ground upon which the second part of the
order, the activation of the suspended sentence, is impugned. The respondent's
first affidavit, dated 1 November 1999, dealt with the events surrounding the
appellant's arrest on 29 October, but not with the other specific incidents
between 1 June 1999 and that date which were contained in the Notice to Show
Cause. These, including the incident on 18 June 1999 which the judge found
proved, were dealt with in her affidavit of 3 March 2000 and her oral evidence.
The Rules of the Supreme Court, Ord 52, rule 4(2), require that the notice of
motion, stating the grounds of the application 'and accompanied by a copy of
the affidavit in support' must be served personally upon the person sought to
be committed. Ord 52, rule 4(3), allows the court to dispense with service of
the notice of motion if it thinks it just so to do. The County Court Rules, Ord
29, rule 1(4), require the proper officer, at the request of the judgment
creditor, to issue a notice which must be personally served. Under Ord 29, rule
1(4A)(c), the request must be supported by an affidavit stating the grounds on
which the application is made. Ord 29, rule 1(7), allows the court to dispense
with service of the notice if it thinks it just and proper so to do. If the
court is able to dispense with service of the notice it must be able to allow
later service or amendments to the supporting affidavit. The touchstone is
whether the person sought to be committed has had a fair trial: has he had
proper notice of the allegations which he has to meet, the opportunity of
considering and challenging the evidence upon which those allegations are made,
and the opportunity of calling his own evidence in rebuttal? In this case, the
answer to all of those questions is clearly 'yes'.
15. Miss Jones' other ground of challenge, however, is more difficult. The
power to suspend committal orders is dealt with in the Rules of the Supreme
Court 1965, Ord 52, rule 7(1) (which is expressly applied to the enforcement of
orders made on applications under Part IV of the Family Law Act 1996 by the
Family Proceedings Rules 1991, rule 3.9A(5)(a)). This reads:
'The Court by whom an order of committal is made may by order direct that the
execution of the order of committal shall be suspended for such period or on
such terms or conditions as it may specify.'
16. In Bluffield v Curtis [1988] 1 FLR 170, this court allowed an appeal
against an order which was suspended without reference either to a period of
suspension or to the terms and conditions upon which it was suspended, the
contemnor having by then complied with the terms of the order which he had
broken.
17. There can be little doubt that if the appellant in this case had appealed
to this court against the order made by His Honour Judge Downes, he would have
succeeded, at least to the extent that this court would have set a fixed limit
to the term for which the suspended sentence would be hanging over his head. In
Pidduck v Molloy [1992] 2 FLR 202, the trial judge had made an order in
essentially the same terms as the present, suspended for 'so long a period as
the defendant complied with the terms of the new injunction'. Lord Donaldson of
Lymington MR, at p 205, said this:
'The first point which is taken is that it is not right to suspend a term of
imprisonment for an indefinite period. It is accepted by Mr Smith on behalf of
the defendant that suspension for a period of 12 months would be reasonable,
but it is said by Mr Sasse that that should have been 2 years. It is certainly
right that a sentence of imprisonment has to be suspended for a finite period
and on the facts of this case I think that an appropriate period would be 12
months.'
18. Section 13 of the Administration of Justice Act 1960 provides for appeals
from any order or decision of a court in the exercise of jurisdiction to
publish for contempt of court and in subsection (3) that the appeal court may
reverse or vary the decision of the court below. This not only permits
substantive variations of the order but also, in appropriate cases, enables the
court to cure procedural defects both preceding and following the making of a
committal order: see Nicholls v Nicholls [1997] 1 WLR 314, CA. However,
the court hearing an application to activate a suspended committal order does
not have the powers of a court of appeal from that order. The Assistant
Recorder in this case could have varied the linked Family Law Act order so that
it ran for a definite period, but he could not thereby validate the suspended
committal order if that order was itself invalid.
19. There is, however, an important distinction between an order which the
court in the exercise of its discretion ought not to make, and an order
which is invalid because the court has no power to make it. In saying
that a sentence of imprisonment 'has to be' suspended for a finite period, Lord
Donaldson doubtless had in mind the statutory power to suspend sentences of
imprisonment imposed in criminal cases. This was first introduced by section 39
of the Criminal Justice Act 1967:
'A court which passes a sentence of imprisonment for a term of not more than
two years for an offence may order that the sentence shall not take effect
unless, during the period specified in the order, being not less than one year
and not more than three years from the date of the order the offender commits
in Great Britain another offence punishable with imprisonment . . . '
20. There is ample authority, in reserved judgments of the Court of Appeal,
that section 39 (or its amended successor in section 22 of the Powers of
Criminal Courts Act 1973, which among other things reduced the maximum period
of suspension to two years.) which does not apply to committal for contempt of
court, whether that contempt is criminal (see Morris v Crown Office
[1970] 2 QB 114, CA) or, as here, civil (see Lee v Walker [1985] QB
1191, CA) in nature.
21.The power to commit to prison for contempt of court is a common law power
which has never been fully regulated by statute or even by rules of court. The
committal itself could be for an indefinite duration until the maximum term of
two years was set by section 14(1) of the Contempt of Court Act 1981. Before
then, it was a common practice to commit a contemnor for an indefinite period
until he had purged his contempt. The power to suspend a committal order was
not mentioned in the Rules of the Supreme Court 1883. The Rules of the Supreme
Court 1965 ended the confusing distinction between enforcement by writ of
attachment and enforcement by committal (see the 'unhappy' history set out in
the Annual Practice 1965, vol 1, pp 1071 et seq) and provided only for
committal. The learned editors of the Annual Practice 1967 explain (at p
687), of Ord 52, rule 7, 'This rule is new though it states the practice'. In
Lee v Walker [1985] 1 QB 1191, at pp 1199 - 1200, Cumming-Bruce LJ,
giving the judgment of the court, stated:
'We do not accept that RSC, Ord 52, r 7 conferred a new jurisdiction upon the
High Court. In our view the context of the rule was procedural, and prescribed
the procedure for the exercise of a power of suspension of committal orders
which has never been doubted.'
22. He went on to explain that one way of doing this was to direct that the
order should lie in the office for a stated time and should not issue if the
contemnor complied with the stated conditions within that time. That method
would not, of course, be apt to deal with a condition, such as the one in this
case, that the contemnor refrain from certain activities. Other methods are
explained by Lord Denning MR in Morris v Crown Office [1970] 2 QB 114,
at p 125. The Court also held in Lee v Walker that a county court had
the same powers of suspension as did the High Court.
23. There is nothing in the notes dealing with committal in the earlier
editions of the Annual Practice, or in the later notes to Ord 52, rule
7, to suggest that it was the invariable practice to suspend only for a finite
period. Indeed, the only relevant case cited in the current notes is Re
W(B)(An Infant) [1969] 2 Ch 50, CA. The order in that case was for
committal for six months, suspended for as long as the contemnor obeyed an
injunction to keep away from a ward of court. That injunction was of unlimited
duration, although it would inevitably end when the ward reached the age of
majority. The case is important for current purposes because it decided that
the judge hearing an application to activate such a suspended sentence has a
discretion whether or not to do so and may substitute some alternative penalty
instead.
24. Against that background, it is most unlikely that Lord Donaldson in what
appears to have been an unreserved judgment in Pidduck v Molloy [1992] 2
FLR 202 meant to say that an order such as this is invalid. It is much more
likely that he was expressing what is now, in the light of the introduction of
suspended sentences in the criminal law, the generally accepted view, that an
offender should not have such a sentence hanging over him indefinitely. The
extract quoted above suggests that argument was directed to the length of the
suspension rather than to the validity of the order. Ord 52, rule 7 is not
mentioned.
25. Pidduck v Molloy has been applied in at least two unreported
decisions of this Court: Hill v Hay, 4 November 1993, and Rigby v
Hudson, 15 December 1994. Both of these were appeals against the suspended
order itself and did not take the jurisdictional issue any further. Both
emphasised that the purpose of imprisonment for contempt is two-fold: to punish
past disobedience and to encourage future obedience. In Hill v Hay,
Leggatt LJ emphasised the former, and observed that where there is no
continuing relationship between the parties it is important that the defendant
know for how long he will remain subject to the committal. Rigby v
Hudson, on the other hand, was a harassment case in which Balcombe LJ
emphasised the latter purpose. In that case, the committal was suspended for
five years. Neither of these cases is inconsistent with the view that an order
such as was made in this case can but in general should not be made.
26. Ord 52, rule 7(1) is expressed, as Assistant Recorder Mostyn QC pointed
out, in the alternative. On the face of it, the order in this case could fall
within either. It was for a 'period', albeit a period specified by reference to
the contemnor's good behaviour. It was also upon specified terms. Following the
views expressed in Bluffield v Curtis [1988] 1 FLR 170 and Pidduck v
Molloy [1992] 2 FLR 202, most such orders are now made for a fixed period
and on terms. It would be odd indeed if the use of the word 'or' between
'for such period' and 'on such terms' were thought to exclude what is now the
general practice with negative conditions of this sort.
27. I would not, of course, wish to cast doubt upon the consistent line of
authority that orders should not, as a matter of practice, be suspended
indefinitely. However, the reasons for setting a finite limit in ordinary
criminal cases are not so powerful here. The order will only be activated if
the contemnor fails to comply with what should be a precisely defined order:
the problem in criminal cases (before suspension became exceptional) was that
it might be activated on the commission of any prisonable offence, no matter
how minor or how unrelated to the matter for which the suspended sentence had
been imposed.
28. Furthermore, if an order such as the one in this case does give rise to any
injustice, there are at least three opportunities to cure it. First, the
contemnor may appeal against the order and the Court of Appeal may set an
appropriate limit to the suspension. If such an order were indeed invalid he
would be better advised to do nothing at all. Although the applicant for
committal also has a right of appeal it is quite unreal to expect her to do so
unless she wishes to argue that the order should not have been suspended at
all, or should have been suspended for longer, or should have been for a longer
term. Secondly, at least in Family Law Act and similar cases, a later court may
vary or discharge the order to which the suspended committal is linked, thus
setting a limit to the suspension. Thirdly, these orders are not activated
automatically but only upon application to the court. The court hearing such an
application has a discretion: it can ask itself, as did the Assistant Recorder
in this case, what would have been an appropriate limit to the suspension. If
the alleged breach falls outside that limit then the order will not be
activated. If it falls within it, then it may be.
29.In this case, the breach took place within 18 days of the order. Had His
Honour Judge Downes set a term to the suspension it would inevitably have been
much longer than that. The Assistant Recorder was entirely right to hold that
there had been no injustice to the appellant. There would, indeed, have been
considerable injustice to the respondent had it not been possible to bring this
committal into effect.
30. For those reasons, this appeal should be dismissed.
LORD JUSTICE SIMON BROWN:
31. I agree.
Order: Appeal dismissed. Minute of order to be prepared by
Counsel.
(Order does not form part of the approved judgment)
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