Devjee v Patel

Friday 18 August 2006 PATEL and DEVJEE.

LORD JUSTICE KEENE: I shall ask Lord Justice Wall to give the first judgment.

LORD JUSTICE WALL: On 4 July 2006, after a contested hearing, His Honour Judge Waine sitting in the Northampton County Court found that the appellant, Mr Nilesh Devjee had on two occasions breached a non-molestation order made under Part 4 of the Family Law Act 1996 in the same court by Mrs Recorder Wilson on 1 June in favour of the respondent to this appeal, Miss Manju Patel. The two breaches found by the judge were firstly, that on 2 June the appellant had assaulted the respondent outside the employment offices at Wellingborough and knocked her to the ground. The second was that on 18 June just after midnight he had gone to her home and smashed a window with a hammer. For each of those two breaches the judge imposed a sentence of three months' immediate imprisonment, which he made consecutive, plus a total of six months.

In his appellant's notice the appellant invites this court to set aside the judge's order on the ground that it was obtained by means which were procedurally defective, those procedural defects, it being argued, having caused him serious injustice. He further asserts that the judge relied on evidence which should not have been admitted and which was prejudicial as opposed to probative. He also asserts the judge did not afford him a proper opportunity to put his case and did not afford him a fair trial. He was throughout unrepresented. Finally, he asserts that the sentence passed was in any event manifestly excessive in all the circumstances and breached a number of guidelines laid down in this court.

The background to the case is somewhat unusual. According to the statement which the respondent made in support of her initial application for relief, she and the appellant had met some time in 1984 and had a relationship which lasted some 10 years and from which three children had been born, now aged respectively 18, 16 and 14.

In her initial evidence for the order which was made without notice to the appellant, the respondent complained of his conduct towards her during the relationship. That statement was read out during the hearing as part of the process adopted by the judge, to which I shall return later in this judgment. However, it is clear from that statement that the respondent made a number of allegations of serious domestic violence against the appellant. She said that they had parted many times but that she had gone back to him. She complains that she suffered from severe anxiety and depression and was receiving support from her general practitioner and a support worker. Amongst other matters, she deposed receiving some 637 calls on her mobile telephone from the appellant during the past three months.

The procedural history of the case is important, and I will deal with it in a little detail.

On 18 May based on, one assumes, the initial statement ultimately read, the district judge in the Northampton County Court made an order on the respondent's application which as I indicated earlier was without notice to the appellant. That order, which is generally speaking in common form, expressly forbade the appellant from attending the respondent's home in Wellingborough or indeed going into any part of the road itself. The order was expressed to last for one year. A return date was given for 1 June in the Northampton County Court and the appellant was given liberty to apply on 48 hours' notice. The return date on 1 June took place before Mrs Recorder Wilson and as this is the order on which the appellant was committed I will read it out in full:

The appellant was clearly present before Mrs Recorder Wilson on 1 June, indeed his presence in person is recorded, and the evidence is that he was served with the orders themselves on the same day. It appears from a document subsequently repeated by the judge that the appellant acknowledged that he had received service of the order.

The first alleged incident took place on 2 June 2006, and much debate has taken place as to precisely what happened as a consequence of that incident. The judge in his judgment was under the impression that the appellant had been arrested on 2 June following the incident, and indeed during the course of the evidence before the judge at the committal, a police officer who was called confirm that the appellant had indeed been arrested following the incident on 2 June; that he had been interviewed by the police but that the police had then decided to take no further action. That appears, as I say, during the course of the evidence of the police officer before the judge. It therefore follows that the appellant was not brought before the judge for a breach pursuant to Part 4 of the 1996 Act; and furthermore, no committal application was issued on the respondent's behalf. Therefore the first complaint made this afternoon by Miss Murphy on the appellant's behalf is that there was, in effect, an absence of process, neither structure put in place by Parliament being utilised in order to deal with the committal application. That was, says Mr Murphy, a major defect, one which was unfair to the appellant and rendered the committal order defective. I will return to that argument in just a moment.

I have already given the date of the second incident, which was 18 June. It appears that that took place either shortly before or shortly after midnight on that day, and on this occasion the appellant was indeed arrested and brought before the court. The first order which we have in our papers in relation to it is by His Honour Judge Waine, dated 19 June. On that occasion the judge directed that the appellant be remanded in custody until the next hearing when he was to be produced. The next hearing was set for 21 June and the court had been told that the appellant had been in breach of an order on this occasion stated, I think, to be the original without notice order of 18 May. We are also very helpfully told of, and received this afternoon for the first time, a further order made by the judge, which it is common ground was made on the same day - that is to say 19 June, although the order itself bears the date of 21 June 2006. On that occasion the appellant was present in person and the respondent was represented by counsel. The paragraph reads:

It is right to say, as Miss Murphy has urged upon us this afternoon, that the appellant remain unrepresented and that he sought an adjournment from the judge to enable him to be represented. We have a transcript of everything which occurred before the judge on that day. The judge referred to the court having received a letter from solicitors who had been approached by the appellant, Messrs Park Woodfine. That letter is dated 3 July 2006. It confirms that the solicitors had received a letter from the appellant asking them to visit him in prison in connection with the injunction proceedings. They say they had no previous connection with him and no knowledge or detail of the case; they understood that he was due to appear in court on 4 July 2006 and regretted that they would be unable to take instructions in time for the hearing and confirm that they had no public funding certificate in place to enable them to represent him. They told the judge, however, that they would endeavour to arrange an appointment with him at the earliest opportunity in order to take full instructions and, if appropriate, submit an application for public funding so that he could be represented within the proceedings. The letter concludes with the sentence:

In my judgment, whilst of course it would have been preferable for the appellant to have been legally represented before the judge, the judge was, in my view, entitled as an exercise of discretion to refuse an adjournment. He had on several occasions in the past adjourned the matter and remanded the appellant in custody, no doubt the purpose of that remand being that the appellant could obtain legal representation. He had not succeeded in doing so and, despite the terms of the letter of 3 July, it seems to me quite likely that had the judge granted the further adjournment the matter could well have drifted on for a substantial period of time, all of which of course would have been spent by the appellant in custody. The second factor which influences me was that the issues which the appellant had to address were by no means complex as the hearing which I will now describe demonstrate. The issue between the parties was of the simplest. The appellant's case in relation to both incidents was that, whilst in the first he had been physically present for some time, he had not behaved towards the respondent as she alleged; and on the second occasion he simply said it was not him, he was not there, he was at home. So this was not a particularly complex issue, and granted the time that had gone past, granted the clear stress on the respondent of the proceedings, granted the efforts which had been made at representation, granted the delay, I am of the clear view that the judge's exercise of discretion was one which was properly open to him and one which cannot be criticised in this court.

The judge then proceeded to hear the case and he did so in a way which, to my mind, makes it clear that he was doing his best to assist the appellant, because although the appellant claimed that he had received the documentation and was fully aware of the issues which he had to face, nonetheless the judge procured counsel for the respondent to read out to the court clearly and slowly, as appears, all the statements which the respondent had made and also statements made on her behalf by witnesses. This takes up some considerable part of the transcript, but clearly makes it plain beyond doubt that matters alleged against the appellant were clearly aired and that he was aware of them. There were a total of four statements made by the appellant, including her statement to the police, and they were all read out. Amongst them was an acceptance by the respondent that she suffers from what she described as "a thought disorder", which made it difficult for her to relate matters to others, although she was able to do so if she had assistance; and of course as the hearing demonstrated, she had the benefit of a support worker, Miss Debbie Kirton.

Complaint is made by Ms Murphy that the judge allowed the respondent to give evidence through the reading of the statement about a large amount of prejudicial background material which he says the appellant was then not allowed to cross-examine on. I have of course considered that allegation seriously and I see how it is put. Nonetheless, it seems to me that no complaint can be made about the material contained in the initial statement from the respondent which was designed to achieve the injunction and inevitably had to go back into her history. But perhaps more significantly, the question to my mind is whether or not the judge was improperly influenced by any of the historic material, or whether the appellant was in any way prejudiced by this material being put before the court without him having a full opportunity to legal representation to challenge any of it.

The appellant did cross-examine the respondent. He began by asking her a question about the children, which plainly caused her a substantial amount of distress. The judge intervened but the appellant was, in my view, fully able to put his case to the respondent which was, as I indicated, that he did not assault her on the 2nd and it was not he who attended her house in the early hours of the morning or late at night on the 18th. Evidence was then produced from two witnesses, Miss Kirton, who was the support worker, and a police officer. Miss Kirton gave evidence of having seen the appellant on a previous occasion go to the respondent's property and, having on a previous occasion, I think, left some item of food such as a cake on the doorstep. She also gave evidence of the respondent's reaction to seeing the appellant on a previous occasion when the respondent had demonstrated extreme fear. She was also cross-examined by the appellant and it does appear from that cross-examination that the appellant indeed accepted that he had been to the respondent's accommodation, although he denied leaving the food on her doorstep.

In relation to the police officer his evidence was, apart from having interviewed the appellant on a number of occasions, that there had been for a time a video camera outside the respondent's accommodation and that the respondent had been viewed on it visiting her accommodation from time to time. He also gave evidence about the large number of telephone calls on the mobile phone. He also gave evidence that the appellant had been arrested in relation to 2 June but then released without further charge, and that nothing more was to follow from it. Effectively, there was no cross-examination of the officer by the appellant.

The appellant then himself gave evidence. The way the judge dealt with it was to examine the appellant himself, asking him questions designed to elicit his case. That he did over several pages of transcript. It appears from that that the appellant's case in relation to 2 June was that I think he had indeed been outside the offices of the work centre in Wellingborough on the day in question, and indeed at the time in question, but that he had not seen the respondent and has certainly not either assaulted her or indeed had any contact with her. In relation to the incident on 18 June, his case was very simply that this was, if it happened, a case of complete mistaken identity, it was not him and that if anyone did come and break the window in the door in the early hours of the morning it was not him, it was somebody else.

He was cross-examined by counsel for the respondent. He accepted, as I have already indicated, that he had been in Wellingborough on 2 June at the relevant place, but that he had not assaulted or interfered with the respondent. He appeared to accept that he had made visits to the respondent's accommodation in the past, and indeed there was, in law, no reason why he should not do so, particularly since the order of 1 June did not include a prohibition against going to her accommodation. But he also appeared to accept that he had made a very large number of calls, something in the order of 637, to the respondent and his explanation for it was that he was not very competent with the mobile phone and had pressed the button a number of times without realising precisely what was happening. That then was the evidence.

The judge gave the appellant an opportunity to address the court in relation to the evidence which the judge had heard. The judge said in terms: "Is there anything else you want to say to me?" after the appellant had explained that he had from time to time been to see the respondent because they had conversations over the children and other matters, and the appellant replied "No, whatever I've said I've told you the truth." The judge then proceeded to give judgment. It will be immediately appreciated that the issues which the judge had to resolve were extremely simple. Who did he believe? It was clear that the appellant had been in Wellingborough on 2 June. Was he to believe the respondent when she said that he had assaulted her on that occasion? Or was he to believe the appellant when the appellant said he had not seen her? Secondly, was the respondent accurate in describing the appellant as the person who came to her property at about midnight on 17/18 June? The judge dealt briefly with the background and the history. He referred to the 637 telephone calls which appeared to have been common ground, although over a relatively short period. He also accepted the evidence which Miss Kirton had given about the distress which the respondent had shown when the appellant had been sighted on the earlier occasion, and he also accepted the evidence that Miss Kirton had seen the appellant at the respondent's accommodation on the day of what I will call the cake incident.

The judge then dealt with both parties' cases. He recorded that the appellant emphatically denied assaulting the respondent on 2 June, denied emphatically that he attacked her, but, by an unhappy coincidence, he accepted that he was at the employment centre at what must have been the relevant time. His case was that it just so happened that it was his day for going, discussing matters with his employment consultant or adviser, and also sorting out his bills.

The judge had no hesitation in accepting the evidence of the respondent about the incident of 2 June. He described it as a serious matter, serious because of what was done to the respondent and also particularly serious because it was only the day after the non-molestation order had been extended for a whole year. The judge said in paragraph 26:

The judge then dealt with the incident on the 18th. He was again clear that he accepted the evidence of the respondent. He said he had no doubt, against the background of which he had already alluded that the appellant for reasons best known to himself was round there on that particular night, and he rejected the appellant's defence that he was at home, that he had toothache and earache and had consumed a bit of whisky before going to bed after having watched football on the television. In paragraph 29, the judge said:

He then proceeded to sentence the appellant, as I indicated earlier, to the two terms of three months for each breach. They were terms of immediate imprisonment. They were not suspended, although the judge made it clear to the appellant that any time that he had served prior to sentence would of course be taken off the sentence, and he reminded the appellant that under the present rules he would not serve more than half of the next sentence - six months less two weeks and then half; so at the most it would be about 2½ months, something in that region. It is, however, correct to say - and this is the point made by Miss Murphy - that the judge does not explain the sentence he is imposing apart simply from identifying the length of time he would give for each.

This afternoon Miss Murphy, on the appellant's behalf, has taken a number of points. I would like to express my admiration for the way in which she put the case to us. It was both concise and moderate and it was very clear. The first point, and the one which troubled me most, was her point in relation to absence of process. She says that although the appellant was indeed arrested following the incident on 2 June, the police had made it clear to him that no further steps would be taken. He was not thus brought before the court under Part 4 of the Family Law Act 1996, that being one process; neither was a committal summons issued on the respondent's behalf in relation to the incident and therefore she argued that there was, in effect, a total absence of process, and this renders the sentence passed in relation to 2 June defective.

To that, Miss Hughes, on behalf of the respondent, argues that if one looks at the orders, to which I have already referred in some detail, and in particular if one looks at the order made by the judge on 19 June, it is quite clear that on that day, if not before, the appellant was made fully aware that there was going to be an allegation in relation to committal going back to the incident on 2 June. The respondent was due to file a statement about it, he was going to have to respond; and so on 19 June Miss Hughes argues the appellant knew full well that he was likely to face two allegations of breach in relation to the order. She posed the rhetorical questions: does it matter in those circumstances that there was no formal summons issued? If there had, would it have made any difference? Did it affect the justice of the case? I have considered both those arguments carefully and I have come to the view that on the facts of this particular case Miss Hughes' argument should prevail.

This court is on record on a number of occasions, and the sentences are now expressly enshrined in the CPR, that whilst in relation to matters relating to the liberty of the subject procedure is important, the importance of procedure is to ensure that a person who is charged with contempt has a full knowledge of the allegations made against him or her and the opportunity to address them. The fact that there may not be the relevant piece of paper or that the precise procedure had not been followed does not mean that the procedure is unfair to the contender. In this particular case it seems to me that, although the appellant was not brought to court following his arrest on 2 or 3 June and was not served with a committal summons, nonetheless the judge was fully entitled to deal with the allegation on 2 June, given that the appellant was given notice of it on the 19th, received the statement I think two days later and therefore had plenty of time prior to 4 July to prepare for what was, on any view, a very simple allegation: were you there or were you not? If you were there did you behave in the way that was alleged? Thus, in my judgment, in those circumstances in relation to 2 June, Miss Murphy's argument, carefully expressed as it was and powerful though it is, fail.

I have less difficulty with the allegation on the 18th, because plainly the appellant was arrested very shortly after that incident. He was brought to the court and he was remanded. The rules plainly allow him to be remanded on more than one occasion and the judge dealt with the matter as swiftly as possible. Indeed, the appellant, through Ms Murphy, criticises the judge in one sense for dealing with the matter too swiftly because he refused an adjournment on the 4th. And so although if there were any relevance in the 14-day period which, on Ms Hughes' argument there is not, I do not think the appellant suffered any injustice in relation to the 18 May incident. That process was, in my view, properly fulfilled, albeit there may have been minor irregularity.

I have been troubled also by the allegation of non-representation, but I have in part touched on my response to it when dealing with the question of the adjournment. It could well have been that this would have dragged on for a substantial period with the appellant remaining in custody. The allegations against him were of a very simple kind. He was plainly able to deal with them on the face of the transcript, and did so. He received the judge's assistance in so doing and therefore, in my judgment, given the clear findings which the judge was entitled to make, it does not seem to me that the absence of representation, undesirable as it was, has caused serious injustice to the appellant. So I would, speaking for myself, take the view that the absence of representation is not a factor which should weigh heavily in the equation in this case.

Equally, I do not accept Ms Murphy's arguments in relation to fair trial. It seems to me that the judge, as I have indicated going through the documentation, carefully made sure that all the relevant information was read out in open court for the appellant to hear and for the appellant to address, and that he did indeed do so. The appellant had the allegations in writing for a substantial period of time before the hearing and he was, in my view, able properly to deal with them. He had the opportunity to cross-examine. He did ask questions. He did address the judge and, in my view, the process in that respect was fair.

I am also unimpressed with the argument which Miss Murphy advances in relation to what she hopes was improperly admitted evidence. The judge could not examine these allegations in a vacuum; they had to be perceived against the background of the relationship between the party. Had the judge expressed himself as being unduly influenced, or being influenced by historical matters, in my view the position might be different. But the only point which the judge relied upon and which I have already indicated as I went through the evidence were those which were effectively not in dispute by the appellant: the number of phone calls, the fact that there had been CCTV and that he had gone to the respondent's house on a number of previous occasions. Thus, in my judgment, the judge was perfectly entitled on what was a straight issue of credibility to look at aspects of the history and the relationship and to use that as an aid to decide who he believed. Miss Murphy does not take a point, and in my view is right not to take it, that the judge did not apply the appropriate burden of standard of proof; he was plainly satisfied to the criminal standard, although he does not expressly say so, that the allegations had been made out. In my judgment, therefore, there is no substance in the argument that the judge was over-influenced by improperly admitted evidence.

We were referred in this context to the authority of D vCambridgeshire County Council [1999] 2 Fam LR 42, a case which on its facts is a very long way from this case in which this court made it clear that evidence of this nature did not go to the committal itself but went to sentence. Clearly, on the facts of that case, that was correct. The breaches by the young man in question related not to fact of the breaches themselves, the evidence in relation to the breaches was much more relevant as to sentence. But I read nothing in the Cambridgeshire case which made it inappropriate for the judge to admit the evidence on which he relied or for him to rely upon it. Again I do not think the judge treated the appellant unfairly in relation to sentence. He clearly asked him whether there was anything he wished to say in addition. It was after all a short issue and the appellant maintained his stance that he was not guilty of either of the incidents; he had not been present on the 2nd and he had not behaved as alleged on the 1st, and in those circumstances the judge proceeded to sentence.

That leads to Miss Murphy's final point, which was that the sentence itself was manifestly excessive. She referred us to the well-known position of this court in the judgment of Hale LJ (as she then was) in Hale v Tanner [2000] 1 WLR 2377 and the guidelines which the judge laid down in that case for sentence. Notoriously in this field, of course, every case depends critically on its own facts. Hale LJ makes absolutely clear that whilst the court has to consider the question of imprisonment very carefully, there is no principle which requires a contender in the first instance either to give them a suspended sentence or not to imprison, and the judge plainly took the view that these two incidents were very serious. In my judgment he was right to take that view, particularly in relation to the latter. To come to a former partner's house in the middle of the night and break a window in a door is a matter of the utmost seriousness, particularly when it is done in breach of an order of the court. And whilst the first incident may not be seen as quite having the same degree of seriousness, it nonetheless was, on the judge's finding, an extremely unpleasant incident; and as the judge pointed out, the more serious because it occurred the day after the order of the court had indeed been made.

Miss Murphy refers us to a number of authorities: Brewerv Brewer; Jordan v Jordan and Smith v Smith, and I mean no disrespect to her or to her argument when I say that I do not find them helpful in assessing sentence in this particular case. Each case of course turns on its own fact. There are numerous cases in the books which one can find sentences of varying lengths or varying offences and, in my judgment, an experienced circuit judge is entitled to make an assessment of the seriousness of the case before him and to sentence appropriately. In my judgment, that is what Judge Waine did. Other judges might have imposed a slightly lesser sentence, some I suppose might have imposed slightly more. But it seems to me that the sentence imposed by the judge in this case was well within the bracket and for the events in question. The appellant simply cannot complain that a sentence of six months overall was excessive in the circumstances. I am very clearly of the view, as was the judge, that the time spent on remand prior to sentence by the judge should plainly count against the overall sentence which the appellant has received, and if and in so far as the prison authorities are failing to take those into account adumbrate as they were by the judge and notified by notice by this court, it would be my view, subject to my Lord's view and he is much more experienced in criminal law than I am, that this court should make it very plain that in relation to the six-month sentence any day spent by the appellant on remand prior to sentence should count towards his sentence.

As I indicated earlier, I would like to pay tribute the to way Miss Murphy has conducted the appellant's case this afternoon. She had has taken every point that could possibly be taken with care, skill and moderation, and I do not think his case could have been put better. But having examined as I hope with some care I have come to the clear view that the judge was entitled to adopt the course that he did, he was entitled to impose the sentence that he did and in those circumstances this appeal should be dismissed.

LORD JUSTICE KEENE: I agree. I, too, was initially concerned about the lack of legal representation of the appellant at the hearing on 4 July. It is clearly desirable that anyone at risk of committal to prison should, if possible, enjoy such representation.

However, this is very much a matter of discretion for the judge when it comes to ordering an adjournment to achieve such representations. I bear in mind that it was wholly uncertain when, if at all, the matter could be dealt with in circumstances in which the appellant would have enjoyed legal representation. It was in everybody's interest that the matter be dealt with as soon as possible consistent with the interests of justice. This was not, as my Lord has pointed out, a complicated case.

I conclude, therefore, the judge's decision to refuse an adjournment was one which he was entitled to make in the circumstances of this case. It follows that this appeal will be dismissed both as to committal and as to the length of sentence. The court does, however, direct that time spent on remand before 4 July 2006 is to be taken into account in calculating the period of sentence served.