J U D G M E N T

Thursday, 29 April 2004

1. LORD JUSTICE THORPE: Mr Justice Bennett will give the first judgment.

2. MR JUSTICE BENNETT: The appellant appeals from the order of His Honour Judge Hamilton, sitting at the County Court in Luton, given on 18 February 2004, whereby he (i) refused the appellant's application for an adjournment, (ii) found that the appellant had breached orders of the Luton County Court of 22 February 2001 and (iii) imposed a total sentence of 18 months' imprisonment on the appellant. The appellant was not present, nor was he legally represented. In fact he was serving a sentence of imprisonment in Her Majesty's Prison in Winchester for a quite unrelated matter. He was due to be released from that sentence on 19 February 2004, that is the day after the hearing in front of the learned judge.

3. In December 2000 the respondent began proceedings against the appellant for a non-molestation order and an occupation order in respect of 10 Vestry Close, Luton. It was alleged that there was a long history of harassment and violence. The respondent sought orders to prevent him from coming to the property at Luton, except for contact with his children, now aged 9, 7 and 3.

4. On 22 February 2001 the order was made forbidding the appellant from using or threatening violence against the respondent, or harassing, molesting or pestering her. The appellant was further forbidden from entering certain parts of Luton as highlighted on a map annexed to the order except for the purposes of contact or attending any of the children's schools or nurseries as authorised by the Luton Borough Council, who, by then, had obtained interim care orders in respect of each of the three children. A power of arrest was attached pursuant to section 47 of the Family Law Act 1996.

5. On 5 November 2001 a further order was made whereby the appellant was committed to prison for six months, but that was suspended until 5 November 2003 provided that the appellant abided by the order of February 2001 and did not enter Luton.

6. On 7 August 2003 the respondent issued an application seeking the committal of the appellant to prison on the grounds that on 5 August he had attempted to push a bottle of perfume through the letterbox at 10 Vestry Close, pushed his way in, assaulted the respondent and was threatening and abusive to her. That application contained an important provision, namely, that he had to attend court and that the hearing would take place on 18 February 2004 at the County Court in Luton, and the address was given. It also strongly advised the appellant to obtain legal representation. On 7 August the respondent swore an affidavit in support.

7. That application was not served upon the appellant immediately because it is said he could not be traced. However, on 5 February 2004, the respondent issued a further application to commit the appellant in respect of further alleged incidents on Christmas Eve 2003, 4 January and 14 January 2004. It was alleged that on Christmas Eve the appellant had come to Vestry Close and tried to force his way in. An hour later it is said he returned and knocked and kicked on the doors of the house. On 4 January it was said that the appellant was seen in Vestry Close. On 14 January the respondent took the youngest child to her nursery school. It is alleged that the appellant took hold of the child's other hand and tried to pull her away from the respondent.

8. On 4 or 5 February the application issued on 5 August 2003 and 5 February 2004 were sent to the appellant in Winchester Prison together with a letter from the respondent's solicitors making it clear that the hearing was in the Luton County Court on 18 February and that he should attend personally or an order might be made in his absence, and that he should seek legal advice as a matter of urgency. We have a transcript of part of the proceedings in front of the learned judge on 18 February. The judge rightly, in my judgment, confirmed with the respondent's solicitor, Mrs Oldham, that the appellant had been served with both applications. Mrs Oldham told the judge that when the appellant was served he had told the process server that he would be out of prison by the time of the hearing but was unlikely to attend, and that she, Mrs Oldham, had contacted a lady at T.V. Edwards who had acted for the appellant in the past. Mrs Oldham told the judge that she was told that on the preceding Monday the appellant had contacted a person at T.V. Edwards asking for representation. Mrs Oldham was asked to convey to the judge the request of the appellant for an adjournment so that he could get legal advice. The learned judge then asked Mrs Oldham what she wanted him to do and whether or not he should proceed in the appellant's absence, to which the answer was in the affirmative. Accordingly, the learned judge then proceeded to hear the matter. He found that the appellant was in breach, and sentenced him as I have already set out.

9. The appellant would contend that, having been served in Winchester Prison, he did try to obtain legal advice and indeed had tried to initiate a process to obtain a production warrant so he could be present on 18 February. Furthermore, it is said that legal advice was not in fact obtainable by him until 2 March and no production warrant was ever issued.

10. So far as the alleged breaches are concerned it is to be noted that at the moment the appellant has not put forward any explanation or defence as to the events of 5 August 2003. But as to the events on Christmas Eve 2003 and in January 2004 his defence appears to be that he was not present and that those incidents did not happen.

11. The appellant appeals to this court. His submission is a simple one, that his rights under Article 6 of the European Convention were not complied with, given that he could not be present and that he was not then able to have any legal representation. The authority which is cited on behalf of the appellant is Re K (Contact: Committal Order ) [2002] EWCA Civ 1559; [2003] 1 FLR 277. That was a decision of the Court of Appeal in which the appellant had been found to be in contempt and a committal order made when she was not in receipt of legal representation. At paragraph 20 of the judgment Hale LJ (as she then was) said this:

"20. Miss Auld has concentrated on a point of principle: should the order have been made at all when the mother did not have legal representation? This, she argues, is a breach the mother's rights under Art 6 of the ... (European Convention). It is clear from the passage that I have quoted that this aspect troubled the judge.

21. These proceedings are undoubtedly a criminal charge for the purpose of Art 6. This means that the mother is entitled to the additional protection in Art 6(3), which includes at para (c):

'To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.'

Miss Auld relies on the case of Benham v United Kingdom (1996) 22 EHRR 293 at 324, where it is said that when deprivation of liberty is at stake the interests of justice in principle call for legal representation. She also draws attention to the equality of arms principle more generally. The father is trying to have the mother committed to prison and he has the benefit of legal representation."

In the course of her judgment her Ladyship also posed the question whether legal representation would have made any difference, and concluded that it undoubtedly would have in that case. Accordingly the appeal was allowed.

12. Regrettably, in my judgment, this case was not drawn to the attention of the learned judge. Mrs Azim, who appears for the respondent today, has said, properly in my judgment, that it ought to have been drawn to the learned judge's attention. I am entirely confident that had it been drawn to the learned judge's attention he would not have made the order that he in fact did. He, I am sure, would have then considered whether or not to have adjourned the matter for a short time (say, a matter of seven days) to enable the appellant to be present in person and with legal representation if so advised. In my judgment, where the matter is, in effect, a criminal charge, then the authority of Re K is most important and should be followed and might in these circumstances have made a difference to the outcome. I say that because if the appellant had been legally represented then, if necessary, the respondent could have been cross-examined and witnesses called on his behalf. Furthermore, the appellant would have had the benefit, if legally represented, of having a skilled advocate able to put before the court any matters in mitigation. That of course would have been most important, given the background of this case. For my part I cannot see that there would have been any prejudice to the respondent in the matter being adjourned for a short time as I have indicated.

13. Accordingly, in my judgment, the appeal should be allowed. The order made by the learned judge ought not to have been made.

14. We have been told by Mr Miller, counsel for the appellant, that he will live at an address in London, that he will follow a course at a suitable college and that he fully recognises that it would be incredibly foolish of him to put himself in a position whereby it could be said that he was further breaching the injunction. We have been told that there is a date available in the Luton County Court before Her Honour Judge Pearce, who has knowledge of this case, on 28 May 2004.

15. For my part, I would propose that the appeal be allowed, that the appellant be released from custody and the matter be heard in front of Her Honour Judge Pearce on 28 May.

16. LORD JUSTICE KEENE: I agree and I agree with the order which my Lord has proposed.

17. LORD JUSTICE THORPE: I also agree. Accordingly, the appeal is allowed and the applications remitted for rehearing in the Luton County Court.

(Appeal allowed; no order for costs, save there be an assessment of the publicly funded costs of both parties).