J-C (A Child)

The appellant, Mr J-C, appeals against a committal order made by HHJ Darroch sitting in the Norwich County Court on 26 June 2007. The appellant’s notice was filed on 30 July, so he is out of time but within the documentation itself there is an explanation provided which is satisfactory. The point has not been taken on this appeal and therefore, speaking for myself, I would extend the time for filing the notice.

The committal proceedings arose out of orders made in the same court by District Judge Birchall on 23 March 2007. The orders, the copies of which were only made available to us yesterday, are at pages 123 to 126 of our bundle. They were made in proceedings between the appellant and a lady called SM under part 4 of the Family Law Act 1996. There is both an injunction and an order giving a power of arrest. All I need say about the background is that the appellant and Miss M had been engaged in a sexual relationship. They had lived together in Miss M’s accommodation in Great Yarmouth. They are now separated. However, they have a baby. She was born on 14 December 2006 and it appears that she is currently the subject of an interim care order made in favour of the Norfolk County Council.

The orders which Miss M obtained against the appellant on 23 March were, as I say, firstly a non-molestation and occupation order under part 4 of the 1966 Act and secondly, a power of arrest. The document which we now have at page 123 reads as follows:

Having left 23 Beavans Road Great Yarmouth Norfolk, the respondent [Mr J-C] shall not return to, enter or attempt to enter or go within 100 metres of it.

The respondent [Mr J-C] is forbidden to use or threaten violence against the applicant [Miss M] and must not instruct, encourage or in any way suggest that any other person should do so.

The respondent [Mr J-C] is forbidden to intimidate, harass or pester the applicant [Miss M] and must not instruct, encourage or in any way suggest that any other person should do so.”

It is apparent that the appellant was represented before the District Judge and was also present. The power of arrest which was granted on the same day repeats paragraphs 1 and 2 of the substantive order and continues:

We have not been provided with any of the material upon which the District Judge made the injunction and granted the power of arrest but since the judge, in what is in my view an admirably succinct judgment, makes it clear that the order was itself properly made as well as being properly served, no point in my view can be taken on that. Clearly, the District Judge had material upon which to make the injunction and upon which to order the power of arrest.

Mrs Voelcker for the appellant takes the point, I think, with some hesitation, and in my view justifiable hesitation, that the order made by the District Judge refers to 23 Beavans Road, Great Yarmouth, whereas Miss M’s address is 23 Beavans Court, and in paragraph 2.5 of the grounds of appeal this point is expanded. What she there says is:

Mrs Voelcker frankly acknowledges that she did not take this point before the judge and in my view she was wise not to do so. In my view, it is a thoroughly bad point and I express some surprise that she persists in it this afternoon. She does so, however, because she takes the view and so submits that because these are committal proceedings, everything has to be in apple pie order, and if there was a mistake on the face of the order, it is one on which the appellant is entitled to rely. As I put to Mrs Voelcker in argument, had she taken this point before the judge, the judge would have immediately recognised that it was a slip and would have corrected it under the slip rule. For that reason alone, it seems to me that we should not allow Mrs Voelcker to take the point here.

Furthermore, the notice to show cause gives the right address and there are other substantial reasons why the point is a bad one. I have already indicated that the appellant was both present and represented when the orders were made by the District Judge. We have not been provided any evidence, as I indicated, but it is absolutely clearly beyond peradventure that when the appellant left the District Judge’s court or the District Judge’s chambers on 23 March, he knew precisely what he was not allowed to do. The order itself of course records that he had left the particular address. He knew very well that he had not been living at 23 Beavans Road, wherever that is, and he knew that Miss M was still living at 23 Beavans Court. He claimed he knew he was not allowed to go within 100 metres of her address.

In my view, the error should have been pointed out to the District Judge at an earlier stage. It was in fact corrected subsequently by an order made by HHJ Barham but in my view it is quite impermissible for a contemnor to attempt to rely on what is purely a technical slip in the making of the order in order to seek to avoid a charge of contempt. As I shall say later in this judgment, the jurisprudence in my view is full of cases in which this court has made it absolutely clear that what matters is justice and fairness and not points of technicality, and if a technical point has not resulted in unfairness then no weight will be given to it. As I indicated, the point was not taken below. The judge took the view that the injunction had been validly made and validly served, and in my view he was entitled to proceed on that basis, particularly as the notice to show cause identified the correct address.

The judge was faced with a notice to show cause, which contained eight specific allegations:

In summary the judge found that two of the allegations were established. As to the remaining six he found, applying the criminal burden and standard of proof, that Miss M had not established them. The two allegations which he found established were allegation B, which for ease of reference I will now repeat, and which reads that:

The second allegation which the judge found proof was allegation H:

After giving judgment and after hearing litigation, the judge imposed a sentence of 28 days’ imprisonment upon each breach to run concurrently and to be suspended for a period of 12 months. We have not heard Miss Voelcker on the question of sentence, but speaking for myself, if the committal was found to be established, the sentence that the judge passed was self-evidently one within the exercise of his discretion.

I turn then to the judgment itself which, as I have already indicated, is in my view both admirably succinct and clear. An important feature of it is that the judge in paragraph 3 gives himself what I regard, as a non-criminal lawyer, as an immaculate direction. He says this:

In my judgment that is the correct direction on the law and as I read the judgment, the judge faithfully throughout the judgment correctly applied the criminal standard of proof. The judge then makes some general allegations which are criticised by Mrs Voelcker:

The judge then goes on to reject allegation A on the grounds that Miss M made it clear that she did not see the appellant on this occasion and there was no way she could say he smashed the living room window. He also notes that Miss M accepted she had other enemies; indeed, the judge records hearing oral evidence from a witness Miss Angeline Temple, who agreed in cross-examination that she indeed hated Miss M.

The judge then goes on to reject allegation C on the ground that there was not sufficient evidence to support it.

In relation to allegation D, the judge accepts that a message was sent but makes comments upon it which again in my view show the care with which he approached the whole case. I will read paragraph 13:

In relation to allegation E, the judge describes it as very serious and deals with it in the following terms:

In relation to allegations F and G of the notice, the judge deals with those in paragraphs 15 and 16 of his judgment:

The appellant of course makes no complaint about the judge’s treatment of the allegations which he finds not to have been established. In relation to the allegations the judge found established, that is allegations B and H, this is what the judge says about them. I will deal first of all with allegation B:

The first ground of appeal attacks the judge’s finding in paragraph 5 of the judgment that Miss M was in fear of the appellant and that there had been “some violence” between the appellant and Miss M which accounted for her fear of him. The matter is put in the following way in the appellant’s notice:

In my view this ground of appeal is misconceived for a number of reasons. Although Mrs Voelcker submits this afternoon that the finding by the District Judge which gave rise to the power of arrest may only necessary to refer to the threat of violence, the fact remains that the District Judge had made an injunction under Part IV of the Act and had attached a power of arrest to it. That was something which the judge was in my view entitled to bear in mind. The District Judge’s order had not been appealed and as I have already said at least once, the judge found the injunction to have been validly made.

Secondly, and perhaps for our purposes more obviously, in my view there is the fact that the judge had the advantage inevitably denied to this court of seeing and hearing the witnesses. He was plainly entitled to form an impression of them and of their evidence and was fully entitled, in my judgment, to make the findings which he did in relation to background matters. He had to assess credibility; he did so; he found that Miss M was “basically honest”, and he was less impressed with the appellant. We have been provided with a transcript of the appellant’s evidence together with that of a witness called on his behalf, one Miss Angeline Temple, to whose evidence I will refer in a moment. The allegation that the appellant had been violent to Miss M was one of the first questions put to the appellant in cross-examination by Mr Brown for Miss M. At page 21 of our bundle there is a passage of cross-examination:

Counsel for the appellant did not object to this line of questioning nor could she properly have done so. Quite apart from the finding by the District Judge that the appellant had used or threatened violence against Miss M, the judge was in my view fully entitled to form a view on credibility and as part of that exercise take a view that he did not believe the appellant’s denial to any previous violence. The fact that these allegations may or may not be ventilated again in the care proceedings relevant to parties’ daughter seems to me wholly irrelevant. Therefore, it follows that in my judgment the proposition contained in paragraph 1 of the grounds of appeal that the judge’s findings in paragraph 4 and 5 of his judgment amount to “serious irregularities” and were made on clearly insufficient evidence simply does not bear examination. Paragraph 1 of the grounds of appeal in my view simply has no substance. The judge as part of his fact finding exercise had to form an impression. He did so on the evidence available to him. We do not have the evidence of Miss M, but we can safely assume, I think, that she said to the judge that she was frightened of the appellant, and indeed in her police statement there is reference to previous violence.

In relation to allegation B, Miss Voelcker asserts that the judge’s finding was wrong both as a matter of law and in fact. He is criticised, in her words, for failing “to resolve conflicts and deficiencies in the evidence central to the making of the finding”. The allegation is that he failed to specify the date on which allegation B took place. He failed to resolve what was said to be the conflict between the police records and the statements of incidents which were within Miss M’s affidavit and the notice to show cause. It is also alleged that he failed to deal with what is described as “the appellant’s alibi” and the discrepancy in the dates. The failure to identify the date Miss Voelcker particularly attacks as “a serious irregularity” which in the appellant’s notice she says breaches his rights under Article 6 as well as failing to comply with the strict requirements for committal hearings. The judge therefore, it is said, had been wrong in law to say that it would not matter if the date was wrong. Paragraph 2 also contains the argument about Beavans Road as opposed to Beavans Court with which I have already dealt, and on which I do not propose to say any more.

In my judgment the criticisms contained in paragraph 2 of the grounds of appeal, whether considered individually or collectively do not impugn the propriety of the judge’s findings.

The question of the alibi is one on which Miss Voelcker places some reliance. However, in relation to paragraph B the allegation in the notice to show cause plainly asserts that the appellant came to the property on 26 March 2007 at 6.45pm and was within 100 metres of the property on that date. There is no reference to any other misbehaviour on that date or indeed any reference in the notice to show cause to the misbehaviour which Miss M related against the appellant in her witness statement to the police on the following day.

The alibi spoken to by Miss Temple relates of course to 27 March which is the following day on which incidents C and E were alleged to have taken place, neither of which the judge of course found to be established. The evidence as to the alibi was to be given by Angeline Temple, to whom I have already made reference. We have a transcript of her evidence. I feel bound to say, speaking for myself again as a non-criminal lawyer, that even if her evidence had related to 26 as opposed to 27 March, she cannot by any stretch of the imagination by described as an objective independent witness. She it was who agreed in terms in cross-examination with Mr Brown that she hated Miss M and she had also, as I indicated earlier, been having a sexual relationship with Miss M’s ex-partner. Furthermore, her evidence only related to the period after 7.00pm, and in cross-examination she accepted she could not rule out the possibility that the appellant had been round to 23 Beavans Court before 7.00pm on that day. It will be remembered that, according to the notice to show cause, the incident of 26 March was alleged to have begun at about 6.45pm

In my judgment, what matters in all this is not the detail but the judge’s essential finding applying the criminal standard, that within a few days of the order being made Miss M had indeed seen the appellant within the 100-metre exclusion zone and that on that occasion he had called her “a fucking slag”. The judge gave himself the Turnbull direction and was satisfied that even if the date and time might be wrong, and even if Miss M had mistaken the colour of the appellant’s jacket, he had nonetheless been present outside her house on one occasion in breach of the injunction and on that occasion he had indeed called her “a fucking slag”.

In Mr Brown’s skeleton argument, which is before us today, on which of course Mrs Voelcker takes issue, there is evidence adduced from his cross-examination of the appellant that the latter may well indeed have cycled his bicycle within the exclusion zone on that particular day. In my judgment therefore, as a matter of common sense and good practice, the judge was perfectly entitled to find that on one of these days shortly after the injunction had been made the appellant had indeed come to Miss M’s property and had called her “a fucking slag” and that both actions were in breach of the injunction.

The other allegation on which the judge found proved related to 10 April. I have of course already set out the judge’s findings in relation to that day. The judge accepts that it was a chance meeting, and in my judgment what he had to resolve was a simple issue of fact. Miss Voelcker points to the police record, which demonstrates that there were indeed other people present in the social security office where the parties met by chance and the judge was satisfied that it was a chance meeting. But the judge was satisfied to the criminal burden of proof on his assessment of the parties that the words had indeed been spoken. In my view that was a finding plainly open to him on the evidence that he had heard. It is as simple as that. It was a simple straightforward finding of fact. Nothing in the police log, in my judgment, contradicts it.

There are, in my view in this case, very simple propositions to be decided: was the judge on the evidence available to him and on his assessment of credibility entitled to make the two findings that he did? Of course it can always be argued that a circuit judge in these circumstances should have perhaps dotted the occasional “i” or crossed the additional “t”, but in my judgment here what one is looking at is essential justice and essential common sense. The judge went out of his way to be extremely careful in relation to all the incidents, and as I have already indicated found that the more serious incidents were not established on the application of the criminal standard. In my judgment in relation to the two allegations which he found proved, these are matters which are plainly within his power to find. He clearly applied the correct standard of proof to them; he had made appropriate assessments of credibility, and in my judgment those two findings stand. It follows that no substantive criticism can be made of them.

Before concluding I simply note that Miss Voelcker placed some reliance on the recent decision of this court in Hammerton v Hammerton. That was of course an entirely different matter in which the circuit judge had heard simultaneously applications for contact and committal, the application for contact being made a litigant in person and the application for committal being made by a woman who was represented. We took the view that in that process the judge had seriously intermingled the two applications and had not done justice to the applicant.

In my view, that is 100 miles from this case. Here the judge went out of his way to deal with the matter carefully on the criminal standard in relation to the notice to show cause which was placed before him. As I indicated earlier, the fact that there may an attempt to use the same findings in care proceedings is in my view neither here nor there in relation to the task which the judge set himself.

It follows in my view that there is no merit in this appeal and I would dismiss it.

I agree.

I also agree.