Hammerton v Hammerton

This is an appeal, as of right, against a sentence of two months’ imprisonment imposed by Ryder J on 30 March 2007 for the appellant’s contempt of court committed three days before on 27 March. The appellant admitted his contempt but sentence was adjourned at his request. The circumstances of the contempt are briefly described by Ryder J in his judgment as follows :

On 26 and 27 July 2005 the appellant was involved in two sets of proceedings before HHJ Collins. One was his own application for supervised contact with two of his children. On 27 July 2005 the judge made an order for indirect contact. The other was an application by the appellant’s former wife for an order to commit him to prison for breach of an undertaking given on 21 December 2004, and breach of an order made in the Woolwich County Court on 23 February 2005. The appellant was unrepresented in both these matters before HHJ Collins, who chose to hear the two of them together. On the committal application, he ordered that the appellant be committed to prison for three months. The order for indirect contact was not appealed; but the order of committal was, although the appeal took an unconscionably long time to get to court. Before any appeal proceedings got to the courtroom or were even launched, the appellant had served six weeks in jail, half the three-month sentence, and it seems he served it in conditions that would be applied to a criminal prisoner, not a person in custody following his contempt of court. After his release he was at length able to instruct solicitors, but there was a catalogue of delays and his appeal did not reach this court until well after the event, on 22 February 2007.

In his judgment delivered the next day, Moses LJ described the history in some detail. He proceeded to observe that committal proceedings were required to comply with Article 6 of European Convention on Human Rights. He emphasised the need for the defendant to be represented, the fact that the applicant for committal carries the burden of proof, and the fact that a defendant to such proceedings is not obliged to give evidence. Moses LJ then proceeded to list a catalogue of errors perpetrated at the hearing in July 2005 before HHJ Collins. There was no comment or enquiry about the fact that the appellant was represented (see paragraphs 11 to 13 of the Moses LJ’s judgment). The judge should have looked into that. The judge should not have dealt with the two matters together (see paragraph 14). The appellant was not warned that on the contempt matter he was not obliged to give evidence (paragraph 15). He was in an impossible position: He could not make good his case for contact without in effect defending himself on the contempt allegation (paragraph 16). HHJ Collins never explained why the two applications had to be heard together; and it was not shown that that was necessary (paragraph 17 and 18). HHJ Collins failed to have regard to relevant circumstances in relation to the sentence for the contempt (paragraph 20). He referred to previous convictions which were in the circumstances quite irrelevant. Moses LJ also concluded that if the appellant had been represented, that might have made a difference to the outcome (paragraphs 23 and following). He indicated that the appeal should be allowed and the findings and sentence, albeit the latter was spent, were quashed. Wall LJ gave a concurring judgment. He said:

Wall LJ then condescended to detail. He proceeded (paragraph 8 and following) to refer to a number of factors in addition to those listed by Moses LJ which were, in his view, particularly unsatisfactory.

These details of both judgments are important and need, with respect, to be very carefully considered by judges exercising the family jurisdiction whenever they are faced with remotely similar sets of circumstances. At the conclusion of his judgment, Wall LJ said this:

In all these circumstances it is obvious that the appellant must have felt an acute sense of grievance. We are told he read the judgments of the Court of Appeal over the weekend after they were delivered on 23 March. He committed the present contempts four days after those judgments: that is, as I have said, on 27 March. He interrupted, indeed disrupted, family proceedings being conducted in private before HHJ Collins between parties who were strangers to him. Before Ryder J the appellant’s counsel conceded that the case passed the custody threshold. The judge accepted that an apology given by the appellant was genuine. He took into account the unusual mitigating circumstances arising from the Court of Appeal’s judgment of four days before and he concluded his judgment in these terms:

There is no doubt, and Mr Ageros on the appellant’s behalf accepts, that this was a serious contempt. It was also premeditated: it was no accident that the appellant had the eggs on his person when he went into the courtroom in which this private hearing was being conducted. The vice of the contempt is not merely the gross insult to the judge, but the disruption and damage to the orderly process of litigation between the parties then before the judge. Counsel was quite right to concede that the case passed the custody threshold and I understand Mr Ageros to make the same concession today.

However it is in my view not surprising that the appellant has felt, as counsel put it to us on instructions, overwhelmed with frustration on reading Moses LJ’s judgment. The case is a highly unusual one and the circumstances which I have described (culminating of course in what was said in this court by Moses LJ and Wall LJ) amount to particularly pressing litigation.

This case is not a precedent for anything that might properly be done in any other case, but on the particular facts and given the unusual circumstances which I have described, in my judgment the sentence passed by Ryder J was, with respect, excessive. The right sentence would have been one of 28 days’ immediate imprisonment. For my part I would quash the sentence of two months and substitute a sentence of 28 days. To that extent I would allow the appeal.

I agree. In the case that immediately preceded this hearing, the submission was made to us, which is entirely uncontroversial, that any sentence of imprisonment should be as short as possible, having regard to the circumstances in the relevant case. It seems to me that as my Lord, Lord Justice Laws, says this was a case for an immediate sentence of imprisonment, but that a sentence of 28 days would have been the right period to mark the court’s disapproval of Mr Hammerton’s conduct, but to reflect the circumstances in which he came to act as he did.