Greensill & Anor v Greensill

This is an appeal by Miss Wendy Greensill which has been listed pursuant to an order of Wilson LJ against an order of HHJ Hughes made on 27 March 2007 at the Wolverhampton County Court, whereby on concluding that 19 breaches of an injunction had been established she committed the appellant Miss Greensill concurrent in respect of each matter to a term of six months’ imprisonment. Miss Greensill filed her notice of appeal on 12 April and the matter is now before us today. Miss Greensill appears before us as she did before HHJ Hughes unrepresented and has confirmed to us that it was her intention and desire on each hearing that she should represent herself. It is unnecessary to deal in great detail with the background to this case except that it is important to recognise that this is at least the fourth application for committal based on substantively the same injunctions. At the heart of this case lies a girl called Sandy Greensill, who was born on 15 November 1995. A final care order in respect of her was made on 21 March 2005 whereunder Sandy now lives with her maternal grandmother, who is the applicant in these committal and injunction proceedings. The orders have been made under part IV of the Family Law Act 1996, initially an ex parte order in September 2005 which became an inter partes order on 4 October 2005 and was at that stage expressed to last for a period of 12 months and had a power of arrest attached to it.

It is enough to say that on 7 December 2005 the first committal application was heard and determined. Breaches were found proved and an order of 28 days’ imprisonment suspended for the balance of the term of the injunction upon compliance with its terms was imposed by HHJ Hughes. The matter revived in April 2006 when I think Miss Greensill had been arrested under the power of arrest and produced before HHJ Cardinal. The matter had come back before HHJ Hughes, who had used her powers under section 48 of the 1996 Act to remand for a psychiatric report. That was a matter that produced a report but not a determinative one as Miss Greensill had not wanted to be interviewed by the psychiatrist. The net result of all this was that on 1 June 2006 an order of committal was made on further breaches which had been proved. Its rather unusual length suggests that it was accommodating a long period having been spent in custody because the remands were in custody for the psychiatric report as the statute permits. There was then a third application to commit which, after the making of a bail order in September 2006, came before HHJ Bellamy on 19 September 2006 when he made two essential orders. First, he committed the appellant to custody for three months for breaches of the order which he found proved and secondly, he removed the time limit on the original order so that it stood without limitation of time to further order. Miss Greensill tells us and the record confirms that she was not present on that occasion and she tells us the reason was that she had left before the case was called on.

It follows that this is at least the fourth application for committal under this order. In fact Miss Greensill told us that she had been the subject of further prison sentences from HHJ Hughes but for the purposes of this application that history is sufficient. On each of those occasions she had been unrepresented and on each of those occasions it is apparent that that was by her choice. Oddly enough, assessed costs orders were made on each of these occasions which suggests some knowledge of means and may of course have an impact on the question of representation. On this occasion the learned judge found the 19 allegations to be proved and found that they amounted to breaches of the order and made the orders to which we have already referred.

This is manifestly one of those cases with which the court is not really properly equipped to deal. Miss Greensill is clearly a lady who believes that all that she has done is what she is entitled to do and that it is right for her to do and that the perception of everybody else about this case is entirely foreign to her experience.

The court must enforce its own injunctions and at the moment any judge confronted with that has powers only to fine or imprison either immediately or by a suspended sentence or to make no order at all. It is hardly surprising in those circumstances that the learned judge having concluded that here had been proved breaches of the order felt constrained not only to pass a sentence of imprisonment but to pass a sentence which was more substantial than the last one that had been served for breaches of the same order. These are particularly difficult cases for judges to deal with because each of the allegations looked at individually is comparatively minor. But as those who practice in this area of the law know, the cumulative impact of incessant breaches of an order can be utterly demoralising for those whose intention is to seek a degree of peace and quiet, and the court simply cannot turn its back on the needs of those people in considering the position in relation to the appellant.

If one were to read the transcript of the proceedings as they actually took place on 27 March 2007 there are a number of matters which might have caused the court a degree of concern. First of all, that there is really no discussion at all about the need and merit of legal representation. This court recently in Hammerton v Hammerton [2007] EWCA Civ 248 has underlined the importance of legal representation as a means of securing compliance with Article 6 of the European Convention on Human Rights.

As this court recognised on that occasion it is not something that can be compelled, only offered. The reality is that in the county court at least the court has no power to order legal aid at public expense save in the circumstances of a contempt in the face of the court and therefore all the court could have done was offer her the opportunity of representation and, had she wanted to take it up, to adjourn the matter. It is quite clear to us that such an offer, if made, would have been refused and therefore in the unusual circumstances of this case the learned judge was justified in proceeding notwithstanding the fact that the respondent was acting in person. The learned judge’s judgment is in a somewhat summary form and whilst there is no doubt that she heard evidence which entitled her to come to the conclusion that the 19 incidents specified in the schedule to the N78 had been established to the requisite standard of proof, we have some anxieties that she did not go on to consider whether each of those matters of themselves constituted a breach of the order and, if so, which. Having said that, it is manifestly obvious that some of them did and that therefore she was entitled to conclude that the injunction had been breached in several respects and to proceed to consider how to deal with it. The learned judge having given judgment then invited, as she was entitled to do, the representative of the applicant to express any views about sentence. The advocate took the opportunity to do that, making it clear partly that he was seeking an order for costs and partly that what his client wanted was a degree of peace and quiet. The learned judge then turned to Miss Greensill and asked her whether she wished to say anything about costs, and she did not, but then did not ask her whether she wanted to say anything specifically about sentence. The learned judge may or may not have had reason to do that in the context of the actual events that were occurring in court at the time but these are akin to criminal proceedings in which process is, as the court pointed out in Hammerton, of central importance and we are left uncomfortable that Miss Greensill was not given the opportunity specifically to address the court on the question of sentence and in those circumstances we feel able to consider that matter afresh.

This is a case in which, in our view, the learned judge was entitled to proceed with the committal hearing. She had dealt with the question of contact by giving directions and as it were started afresh which was acceptable and did not involve the difficulties that arose in the Hammerton case. She was entitled to hear the evidence. She offered Miss Greensill the opportunity to give evidence, which she declined, and she was entitled to act on the evidence that she had and was entitled to conclude that there had been repeated breaches of the injunction. In those circumstances, given the limited powers of the court and the obligations of the court, it really is extremely difficult to see what the learned judge could have done other than impose a sentence of immediate custody. But of course we remind ourselves that at the heart of this case lies not so much a dispute between mother and daughter as the mother’s desire to establish contact with her own daughter within the care proceedings and the learned judge has set aside two days in July for a consideration of that matter. We are conscious that that lies at the very heart of the concerns of the parties in this case. We are impressed by the thought that it would be almost wholly fatal to the mother’s case on contact if she were to continue to cause difficulties to the applicant between now and the trial. We are conscious that she ought to have the opportunity to prepare properly for that trial. We are conscious that by the time the trial is over it may well be that breaches of these orders, if they were repeated, would have become criminal offences.

We are conscious that the learned judge in the course of the contact proceedings has wide powers in terms of considering the psychological and psychiatric needs of parents and child and carers and is able by the use of conditions to control circumstances in which contact should take place, if indeed it should, as to which of course we can express no view. Those are all matters which the learned judge will have to consider fully equipped with the powers that she will have under part IV of the Children Act 1989. In all those circumstances we have come to the conclusion that whilst the learned judge was entitled to act as she did and pass a sentence of immediate imprisonment, we think upon further consideration that that sentence could be reduced somewhat and we would propose to reduce it to a term which would enable Miss Greensill’s release from this court today. Whether we do that by substituting a set number of days, or simply making an order that it is to be as of today’s release perhaps some assistance could be offered to us. But that would be the intention of the order that should be made and I would propose that the court makes an order to that effect.

I agree with my Lord, Mr Justice Hedley, and in particular that Miss Greensill did not have a full opportunity to give her submissions on the question of the sanction to be imposed on her as a result of the breaches of the order which the judge had found. I further agree with my Lord that some of those breaches at least were clear although some of the other breaches relating to the school seem provisionally to me matters on which more findings may have been required. Miss Greensill has addressed the court this morning. While she has made it clear that she considers that no order of imprisonment should have been made, she has stated to us that she appreciates that she must not breach the order that has been made, particularly in view of the contact application that is due to be heard in July. In the circumstances, and for the reasons given by my Lord, Lord Justice Hedley, I agree that the order for Miss Greensill to serve a term of custodial imprisonment should be discharged and an order substituted which would come to an end today.

Miss Greensill should focus on her contact application and she must be seen to comply with orders of the court. We have explained to her that they are valid and binding until they expire or are discharged. Even if she were to be right in what she contends about the making of the injunction, she is not entitled to take the law into her own hands. She must make an application to the court if, for instance, she wants the order to be discharged or varied so that she can go to 272 Wolverhampton Road to collect what she says is her property.

It has also been made clear to us by Mrs Jones, who has appeared today for the respondent to this application, that if Miss Greensill were to take medical advice in the meantime that would be relevant to Mrs Norma Greensill’s attitude to the contact application. It may indeed, as my Lord has explained, assist the court to know on the contact application what advice Miss Greensill has taken in this period if she is released today.

I also agree. The decision of this court in Hammerton v Hammerton is a decision of some importance and it offers valuable guidance to judges in the courts of trial before whom proceedings for committal are brought. In relation to the conduct of the sentencing exercise Wall LJ said:

“We do not know, in the instant case, whether or not HHJ Collins heard mitigation. Whilst it does not appear from the note of his judgment that he did so, I remind myself this is only a note, and we have been deprived of the vital part of the transcript (which includes the point at which mitigation would have taken place) … It is however, I think, no bad thing for the judiciary to be reminded of the criticism made by this court of a judge who did not hear mitigation before imposing a custodial sentence in a family case: – see Goldsmith v Goldsmith [2006] EWCA Civ 1670; [2006] The Times 370, as well as the need for a judge to give himself sufficient time for the “quiet reflection” identified by the Criminal Division of this court in R v Huggins [2007] The Times 24.”

That guidance was not available to HHJ Hughes. She sat on 27 March and the judgment in this court in the Hammerton appeal was only given on 23 March.

The second point that I wish to remark on is the delay in the listing of this appeal. The appellant’s notice was received and was filed on 12 April 2007. Now that of course fell within a court vacation which would perhaps excuse a few days of delay. But the papers were put before Deputy Master De Mambro, who on 24 April asked for listing at an early date. Of course I recognise that between that date and today another court vacation has intervened, but it is only as a consequence of a direction given by Wilson LJ on 23 May that this appeal was expedited for hearing. As a generalisation that is quite unacceptable. Appeals against sentence are appeals brought as a right without the need for permission because they involve the liberty of the subject. Every day that the appeal is delayed may be a day in which the appellant is unjustifiably detained in custody. So as a matter of good practice, any appeal against either the finding of breach or the sentence for breach must be expedited into court and, as a matter of safeguard, should be immediately referred to one of the supervising Lord Justices so that appropriate directions can be given for an expedited hearing and for whatever else may be needed.

I only add that in the instant case I do not think that there has been any prejudice to Miss Greensill. Let us assume for a moment that the appeal had been listed on the first day of the Easter term, which was I think 25 April. On that date, given that the judge’s failure was a procedural failure at the stage of sentencing, it is in my view extremely unlikely that her immediate release would have been ordered then. She would probably have had her sentence reduced from six to four months, which would leave her where she is today. Those are the only two matters that I wish to add.