Swindon Borough Council v Webb (t/a Protective Coatings)

Judgment

Lord Justice Tomlinson :

“IT IS ORDERED THAT . . .

The Defendant, whether by himself or by instructing or encouraging any other person whether in the course of his business or any other business, refrain from the following and from carrying on any similar course of conduct in the course of his current or future business namely:

(a) any body corporate of which the Defendant is (or purports to act as) a director, manager, company secretary or other similar officer

(b) any partnership (whether a limited liability partnership or not) in which the Defendant is a partner

(c) any business in which the Defendant has a controlling interest as defined by s. 222(3) and (4) of the Enterprise Act 2002.

IF YOU DO NOT OBEY THIS ORDER YOU WILL BE GUILTY OF CONTEMPT OF COURT AND YOU MAY BE SENT TO PRISON”

Both orders were served personally on Mr Webb – the first on 18 August 2006 and the second on 25 April 2007.

“It is ordered that MR FRANK WEBB be committed for contempt to Her Majesty’s Prison (be detained under section 9(1) of the Criminal Justice Act 1982) at BRISTOL for a (total) period of 4 MONTHS or until lawfully discharged if sooner, and that a warrant of arrest and committal be issued forthwith.

And the contemnor can apply to the (court) (judge) to purge his contempt and ask for release.

[And, as the court by order dated dispensed with service of the notice of application for a committal order.

It is ordered that the contemnor be brought before a judge of this court as soon as practicable.]”

I particularly draw attention to the parts scored through. The court had not dispensed with service of the notice of application for committal. On the contrary that notice had been properly served on Mr Webb as recorded by the judge.

“To ▪ the District Judge and Bailiffs of the Court

▪ every constable within his jurisdiction

▪ the Governor (of Her Majesty’s Prison at)

On the 22^nd day of APRIL [19 ][2014]

HIS HONOUR JUDGE AMBROSE (enter name of judge) has ordered that MR FRANK WEBB of 19 HAY LANE, WROUGHTON, SWINDON, WILTS SN4 9QU

should be committed to Prison (detained under Section 9(1) Criminal Justice Act 1982) for a period of 4 MONTHS

You the District Judge and Bailiff are therefore required forthwith to arrest and deliver MR FRANK WEBB

to (Her Majesty’s Prison at) BRISTOL

And you, the Governor, are required to receive and keep MR FRANK WEBB safely (in prison) from the arrest under this warrant for a period of 4 MONTHS or until lawfully discharged, if sooner.

[And, as the court by order dated dispensed with service of the notice of application for a committal order,

It is ordered that you, the Governor, bring

before a judge of this court at such time and place as the court shall specify and afterwards, return him to the prison unless the court orders his discharge.] ”

I again draw attention to the part of the standard form which was scored through as inapplicable.

“Many thanks for your letter. My understanding is that Mr Webb was arrested on several warrants, and should have been brought before the Court at the time of his arrest rather than being taken straight to prison, as he was committed in his absence. He instead appeared before the magistrates and never appeared in the County Court.

I also understood this hearing had been brought forward and was being dealt with today? I am afraid I am not in the office, so you might like to contact the Swindon Civil team to find out whether that is the case, or not.”

“Upon Recorder De Freitas (sic) accepting that Mr Webb has in person this day in Court purged his contempt

IT IS ORDERED THAT

Mr Webb be released from custody.”

“Rec DeFreitas Well, can I tell you what this hearing is about? This hearing is an opportunity which the judge who made the order committing you to prison for four months for those breaches …

Mr Webb Yes.

Rec DeFreitas … that judge made an order that you could come here today and apply to purge your contempt. Do you understand that?

Mr Webb Yes, sir, yes.

Rec DeFreitas And in order to purge your contempt what you will need to do is to apologise to the court for breaching the terms of the injunction and promise to the court that you will not do it again. Do you understand that?

Mr Webb 100%, sir, yes.

Rec DeFreitas Are you willing to do that?

Mr Webb Yes, I am very, very sorry. I wish that I would have done it a lot sooner to be fair on you, I realise, I do apologise. (inaudible).

Rec DeFreitas And will you promise not to breach the terms of that order of 2007 again?

Mr Webb No, sir.

Rec DeFreitas Hmm?

Mr Webb Yeah, I will promise you.

Rec DeFreitas You understand what it is, and you understand that if you do breach those orders you are liable to imprisoned again. You understand that?

Mr Webb I am fully aware of that now, sir.

Rec DeFreitas Yes.

Mr Webb But I just, I, I really do apologise to you and (inaudible). I really do apologise for that, all that, but I have had a lot of (inaudible), a lot of illnesses lately because I am suffering from spinal problems and bringing up blood and everything.

Rec DeFreitas Yes.

Mr Webb And I am not well. And I have just been left on my own, to be fair with you. I am now going through a heck of a lot of depression (inaudible) as well. So I am 57 years of age and there is, you know, not really a lot, you know, you know (inaudible).

Rec DeFreitas Okay but can you tell me this, why, why should I accept your promise not to breach the orders again when you appear to have ignored them?

Mr Webb I have breached one order.

Rec DeFreitas Okay. Well, it was an order which made a series of restraints against you but, I mean, how sincere are you in promising not to …

Mr Webb (inaudible) and sincere, sir, that it will never happen again, especially with what I have been going through this last fortnight, well, (inaudible).

Rec DeFreitas Well, you have had a fortnight in …

Mr Webb Oh yes, sir (inaudible).

Rec DeFreitas … of incarceration.

Mr Webb I said to the lady earlier now after today I would not have any more (inaudible).

Rec DeFreitas Well, in those circumstances, Mr Webb …

Mr Webb Pardon?

Rec DeFreitas … in those circumstances I am prepared to accept in the light of your fulsome apology and the promise that you have made that you have purged your contempt and I will infer that you are making an application for release as envisaged by Judge Ambrose and I will therefore order your release. But understand you have made yourself a marked man and therefore …

Mr Webb I appreciate that, I am well aware of that.

Rec DeFreitas … and therefore it is all the more to your advantage to keep your promise to the court not to breach those injunctions again.

Mr Webb No, they won’t ever, no, I said to the lady earlier it will never happen again. Before I come in here I didn’t even know what all this was about (inaudible), you know.

Rec DeFreitas Yeah, well …

Mr Webb I think I have learnt a lesson now this past, you know, few days.

Rec DeFreitas Well, I hope so. Well, I will, I will accept that you have purged your contempt and I will order your immediate release.

Mr Webb Okay, sir, thank you.

Rec DeFreitas But you understand that those injunctions still stand and you have to obey them?

Mr Webb Yes, sir, I appreciate that, yes. What I am going to do, sir, is get the family to give me more help because I have been trying to depend on myself because I am not a good reader or writer to be fair to you. I do have some (inaudible) skills and everything like that, you know?

Rec DeFreitas Well, you do understand though that the …

Mr Webb No, I cannot understand where (inaudible).

Rec DeFreitas But you do understand that if you enter into the contracts that you have been entering into with customers you have to give them notice in writing of their cancellation rights.

Mr Webb Okay, sir.

Rec DeFreitas You …

Mr Webb Can I … okay, yes, I will listen to you first, yes.

Rec DeFreitas You do understand that?

Mr Webb Yeah, I really understand that now, yeah, I understand that.

Rec DeFreitas Right.

Mr Webb And I was going to say to you, now, a lot of people (inaudible) have been telling me if a customer wants a job done, right, (inaudible) could you, have you got to have it in writing that you have got to, you can waiver that 7-day cooling off period?

Rec DeFreitas In your case …

Mr Webb This is what I have been trying to find out.

Rec DeFreitas Well, in theory that is possible but in your case, Mr Webb, given the terms of the injunction your only safe course is actually to give them a notice in writing, notice of their cancellation rights …

Mr Webb Yes.

Rec DeFreitas … and you have got to prove, you will probably have to prove that you have done that. Of course, they may not wish to exercise those rights but you, according to the injunction, have got to give them notice …

Mr Webb (inaudible), to, yeah, to (inaudible).

Rec DeFreitas … that they have the right. You understand that?

Mr Webb Yes, sir, very much so, yes.

Rec DeFreitas Yes. Very well.”

“Discharge of a person in custody

81.31

(1) A person committed to prison for contempt of court may apply to the court to be discharged.

(2) The application must –

(a) be in writing and attested by the governor of the prison (or any other officer of the prison not below the rank of principal officer);

(b) show that the person committed to prison for contempt has purged, or wishes to purge, the contempt; and

(c) be served on the person (if any) at whose instance the warrant of committal was issued at least one day before the application is made.

(3) Paragraph (2) does not apply to–

(a) a warrant of committal to which CCR Order 27 rule 8, or CCR Order 28 rule 4 or 14 relates; or

(b) an application made by the Official Solicitor acting with official authority for the discharge of a person in custody.

(4) If the committal order is made in a county court and –

(a) does not direct that any application for discharge must be made to a judge; or

(b) was made by a District Judge under section 118 of the County Courts Act 19845,

the application for discharge may be made to a District Judge.

(5) If the committal order is made in the High Court, the application for discharge may be made to a single judge of the Division in which the committal order was made.”

“Court’s power to make order of its own initiative

3.3

(1) Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.”

Mr Shepherd also drew to our attention CPR 3.3(3) which provides:

“(3) Where the court proposes –

(a) to make an order of its own initiative; and

(b) to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.”

Mr Shepherd submits that the council was here “a party likely to be affected by the order”, and it is certainly true to say that the hearing was in proceedings to which the council is party, viz, its Action Claim No.6SN02237 brought in June 2006 which claim number appears on the two restraining orders, on the Committal Order and on the Warrant of Committal. I agree therefore that if the court is minded to act of its own initiative, it should be mindful of CPR 3.3(3), although I note that CPR 3.3(4) gives to the court a power to “make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations”. All this notwithstanding, it must be obvious that even where the court is minded to act of its own initiative, it ought ordinarily in a case of this sort, so far as practicable, to give notice of its intention to the person or body at whose instance the warrant of committal was issued. That person has an interest which should be respected, and so far as practicable accommodated, by being heard on the question whether the contemnor should be released before serving the full term imposed, subject of course to any statutory entitlement to earlier release.

“These past few weeks have seemed like months and have given me time to reflect on my stupid and immature behaviour for which I am truly sorry. I would like to apologise to the court and all the people involved in this case. I cannot do anything to change the past, except apologise, but I can and will make sure that the residents of Grange Gardens can live their lives without having to worry about me or any of my family.”

The Council was represented at the hearing of Hampton’s application and Counsel addressed the court on its behalf. On 8 June 2007 the Judge decided that Hampton had purged his contempt. The judge said:

“I am prepared to accept that your apology is a sincere one and a considered one and not simply a device to get you released early from prison. I am impressed by the statement in your letter that you have warned the children of the consequences for you and the mother if there are further problems and your reassurances for the future to give some peace to the residents of the area who have been plagued by the activities of your family. With some hesitation therefore I see no benefit in keeping you in prison any longer and I am … prepared now to say that your contempt has been purged and direct that you should be released forthwith.”

The council applied for permission to appeal against the judge’s order releasing Hampton from custody on the basis that it showed undue leniency, just as the council here say that the Recorder showed undue leniency to Mr Webb.

“20. Hampton's conduct was undoubtedly unacceptable, including as it did many threats to residents, to whom it was a very serious nuisance and worry. His conduct was persistent. Committal, when the judge ordered it, was appropriate. There was no evidence of any previous custodial sentence which is to be taken into account. However, two weeks elapsed before Hampton's application was heard by the court, the judge having considered Hampton's letter. In my judgment, the judge was entitled to conclude that fourteen days in custody (which, by virtue of section 253 of the Criminal Justice Act 2003, amounts to a sentence of 28 days) was sufficient to entitle the judge to hold that the contempt had been purged. Taken with the five days which had been served previously, it was a sufficiently long period — a sufficient clang of the prison gates and a sufficient taste of custody — to persuade Hampton to behave himself in the future and to entitle the judge, within the discretion he had, to permit Hampton's release. The judge had very considerable knowledge of Hampton, who had appeared before him over many days. The judge was in the best position to assess the effect which custody had had upon him, and the significance of the statements made in the letter.

21. In my judgment, there is no real prospect that this court would reverse the finding of the judge. The judge had regard to the material factors, including the interests of residents and the public interests.”

Buxton LJ said:

“23. So far as the substance is concerned, I venture to express some caution about assuming that in a case such as the present the exercise is parallel to the jurisdiction exercised by the Court of Appeal Criminal Division on the Attorney General's reference. That was suggested in paragraph 8 of Wood v Collins, but only in connection with an appeal where it is sought to increase the original sentence of imprisonment for a civil contempt. It seems to me at least possible that the jurisdiction to purge for contempt appeals to a more fundamental aspect of the discretion of the court, which is to recognise that the situation in respect of which the sentence was originally imposed has changed because of a change of attitude of the contemnor, and that therefore the basis for continuing with the sentence has disappeared. But whichever of those views is correct, it is clear that the court will and must give very great weight to the view taken by the trial judge. In this case, as my Lord has pointed out, HHJ Meston had had the conduct of the case from the beginning, and it was he who was very well aware, as his earlier judgment demonstrated, of the implications, both for Mr Hampton in respect of his attitudes and for the surrounding neighbours and persons, who had been quite clearly seriously troubled by the conduct of Hampton and of his family. Not only did the judge have that in mind, but I have no doubt at all that he would have been reminded of those considerations by Mr Glen who appeared before him. Mr Glen has conducted this case fairly and with great thoroughness, and I have no doubt that the criticisms of, and alleged omissions or oversights in, the judge's approach that he put before us were fully emphasised to the judge.

24. Particularly that being so, in my view it is quite impossible for this court to interfere with the conclusion that the judge reached, not least because it would be tantamount to this court saying that when the judge concluded that the apology was sincere and one on which he could properly act he had simply been deceived by the applicant - a conclusion that an appellate court should only come to with the very greatest of caution, granted that we do not have the judge's acquaintance with the case and with the appellant.”

“. . . first, to punish the contemnor for disobedience of an order of the court and second, to attempt to coerce him to comply with the order.”

From that it is apparent that there are in circumstances such as faced the Recorder here at least two distinct aspects to be considered, one of which is the extent to which the contemnor’s attitude has changed since imposition of the sentence. Furthermore, if, as in the present case, the contemnor is not present on sentencing, the hearing at which release is considered may, and ordinarily will be, the first opportunity which the court has to assess to what extent the contemnor shows contrition and remorse.

“6. An application for an order for early discharge is often described as an application to purge the contempt. Speaking for myself, I regard the terminology of "purging" a contempt as not particularly helpful, at any rate in the present context. To purge a contempt would in my view ordinarily mean to atone for a contempt, eradicate it or cleanse it of its previous ill-effect. Although a person committed to prison for breach of a mandatory order to do an act (such as to hand over a child, as in Corcoran v. Corcoran [1950] 1 All ER 495) may reasonably be said to purge his contempt if he thereupon does the act or causes it to be done, the notion is less easily applied to an act which amounts to the breach of a prohibitory order and which, once done, cannot be undone.”

“20. In Enfield LBC v. Mahoney [1983] 2 All ER 901 May LJ observed at 907j that the reasons for a committal to custody for a civil contempt were twofold, first to punish the contemnor for disobedience of an order of the court and second to attempt to coerce him to comply with the order. He suggested that, on application for early discharge, the first question for the court should be whether the contemnor has been punished enough for the contempt. If not, then he would probably fail to secure discharge. But if so, the only remaining justification for continuing to keep him in custody was the possibly coercive effect of continuing to do so. That was, however, another case in which the contemnor had failed to comply with a mandatory order, namely to deliver up to Enfield an ancient cross, known as the Glastonbury Cross, which he had found on their land. So the case falls into what, in Lightfoot v. Lightfoot [1989] 1 FLR 414, Lord Donaldson MR, at 417B, later called "a second category which I might describe as a coercive sentence where the contemnor has been ordered to do something and is refusing to do it". Thus the reference of May LJ in the Enfield case to the "coercive" effect, namely whether, if he were to continue to be imprisoned, the contemnor would deliver up the cross, has to be adapted to the type of case of which the present is an example. So this part of the enquiry should be into the "protective" effect of continuing to keep the contemnor in prison and thus into whether an order for early discharge would be likely to lead to further breaches of the injunction and thus to compromise the safety of those for whose protection it was devised; cf Longhurst Homes Ltd v. Killen [2008] EWCA Civ 402 , per Hughes LJ at [14].

21. With the advantage of more time for reflection than was vouchsafed to the judge, I consider that, had I been hearing the appellant's application for early discharge, I might have asked myself eight, somewhat overlapping, questions. In case they prove to be of any value to other judges confronted with applications for early discharge in similar circumstances, I set them out as follows:

(i) Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt?

(ii) Would the interest of the State in upholding the rule of law be significantly prejudiced by early discharge?

(iii) How genuine is the contemnor's expression of contrition?

(iv) Has he done all that he reasonably can to demonstrate a resolve and an ability not to commit a further breach if discharged early?

(v) In particular has he done all that he reasonably can (bearing in mind the difficulties of his so doing while in prison) in order to construct for himself proposed living and other practical arrangements in the event of early discharge in such a way as to minimise the risk of his committing a further breach?

(vi) Does he make any specific proposal to augment the protection against any further breach of those whom the order which he breached was designed to protect?

(vii) What is the length of time which he has served in prison, including its relation to (a) the full term imposed upon him and (b) the term which he will otherwise be required to serve prior to release pursuant to s.258(2) of the Criminal Justice Act 2003?

(viii) Are there any special factors which impinge upon the exercise of the discretion in one way or the other?

22. I am clear that the success of an application for an order for early discharge does not depend on favourable answers to all the questions. Nevertheless the first is a general question which, as May LJ suggested, probably needs an affirmative answer before early discharge should be ordered. The second will surely require a negative answer. An affirmative answer to the third will usually (although not always: see, for example, the Enfield case, cited above) be necessary but may not be sufficient. As Lord Clyde, the Lord President, said in the Scottish Court of Session in Johnson v. Grant [1923] SC 789, at 791:

"The mere circumstance that he presents a belated expression of contrition has, with regard to the public aspect of the matter, almost no importance at all. There is ample opportunity … for repentance before sentence is pronounced. The appeal is simply to the clemency of the court … and the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to the court and saying, "I realise my transgression and apologise for it" – however sincerely such an apology may be made."

I suggest that, subject to what I have said above, answers to the questions go into the melting pot; and out of it, once they have melted together, comes the conclusion.”

“Aikens LJ

28. In the present type of case, if there is an application by a contemnor to the court for his early discharge from the term of imprisonment imposed, the court has to make a judgment on whether it is just that this should be done. It is not the exercise of a "discretion" in the sense that the word is frequently and often inexactly used. To my mind, the court has to consider two broad issues. First, despite the fact that the contemnor has not served the term originally imposed (which is itself subject to section 258(2) of the Criminal Justice Act 2003), has the contemnor demonstrated that he has now received sufficient punishment for his breach of the court's injunction? In this regard, the court will examine, at the least, whether the contemnor now not only accepts that he has been guilty of his contempt, but also that he is genuinely sorry for his misdeeds and repents them. Those sound old – fashioned, even religious, terms, but I think they best express what the court has to consider. There may be other things to be examined under this first question. If the answer to the question is "no, the contemnor has not so demonstrated that he has received sufficient punishment for the breach", then for my part, I cannot see how a court can consider an early release unless there are other, extenuating circumstances which require that the court consider the exercise of its power to grant an early release.

29. But, assuming the answer to that first question is favourable, I think the court must ask, secondly: will the interests of justice be best served in permitting his early discharge?

Sedley LJ

32. I agree too with the analysis made by Wilson LJ of the practical difference in this context between the purging of contempt where the offence is breach of a mandatory order and where, as here, it is breach of a prohibitory order. In Harris v Harris [2001] EWCA Civ 1645, §21, Thorpe LJ accepted that "the application to purge is rooted in quasi-religious concepts of purification, expiation and atonement". In such a context, while compliance with a mandatory order may be the kind of proof of contrition which a court can evaluate, contrition sufficient to purge a breach of a prohibitory order is much more elusive and, many people might think, not really the business of the courts. Their task is completed, subject to any appeal, at the moment of sentence.

. . .

36. Meanwhile, judges will be assisted by the questions suggested by Wilson LJ, so long as they are treated not as a tick-list but as windows on a problem which will always be case-specific and to which, as often as not, there will be no single right answer. In this regard, however, I would draw attention to what Aikens LJ says about the dubious use of the word discretion to describe the power the judge of first instance is exercising. Judge Farmer in his judgment cited without comment a passage from Arlidge et al on Contempt (3rd ed, §14-8):

"The power of the court to discharge is discretionary and unfettered. No doubt, however, modern practice and parlance would require a refusal to discharge to be justified by the test of necessity and proportionality to the desired objective, whether penal or coercive."

37. Although it has not featured centrally in this appeal, I wish to enter some provisional caveats about this passage. First, there are no unfettered discretions. A judge cannot let a contemnor out because he feels sorry for him or because he would not himself have imposed so long a sentence. There has to be a reason for discharge known to the law. Secondly, it is for the contemnor to advance such a reason for discharge, not for the court to find a reason for refusing it. Thirdly, this is not a matter or practice or parlance: it is a matter of substantive justice. This is why the vocabulary of judgment is more relevant than the vocabulary of discretion. Fourthly, it is at the point of sentence that necessity and proportionality govern judgment. When a judge comes to consider discharge from a sentence which has already been found both necessary and proportionate, he or she is looking at new factors, if there are any, albeit these may modify what is now necessary and what is now proportionate.”

Lord Justice Lewison :