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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough of Barnet v Hurst  EWCA Civ 1009 (17 July 2002)
Cite as: 2003] WLR 722,  CP Rep 74,  1 WLR 722,  EWCA Civ 1009,  HLR 244,  4 All ER 457,  WLR 722
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNET COUNTY COURT
Her Honour Judge Bevington
London, WC2A 2LL
B e f o r e :
LORD JUSTICE BROOKE
LORD JUSTICE DYSON
| LONDON BOROUGH OF BARNET ||Claimant/|
|- and -|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Steven Woolf (instructed by J D Spicer & Co) for the Appellant
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Brooke :
1. The appeal and cross-appeal
2. The history of the proceedings
“In the early hours of Saturday 6th April 2002 you came to the block at 30-34A Hamilton Road, London N2. You engaged in the following acts:
a. You were loud and noisy, disturbing neighbours’ sleep;
b. You kicked your father Anthony Hurst’s Ford Escort car and then further attacked the car with an object, smashing glass;
c. You threw a refuse disposal ‘wheelie-bin’ through the windows of your father’s flat at 30 Hamilton Road, smashing glass;
d. You smashed other windows to the rear of 30 Hamilton Road;
e. You entered 30 Hamilton Road without your father’s consent, and then caused damage there, pulling down and damaging curtain rails, and smashing a television;
f. You threatened to kill your father;
g. You generally, by these actions, terrified and upset those residing in the block.”
“I appreciate that he had been drinking, although of course that is a matter, really not of mitigation in particular, but it is something I take into account in any event. Although, in the final analysis his conduct in the neighbourhood, of course, was serious; it would have caused disturbance to the neighbours and would have caused distress to them in hearing loud noises and noise coming from the defendant. A solemn promise to the court is a matter which has to be taken very seriously indeed, as I am sure was explained to Mr Hurst when he gave that solemn promise.”
3. The correct routes of appeal in committal proceedings
“The general rules relating to appeals in CPR Part 52 are expressly made subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal: CPR 52.1(4).”
And at para 23 I said:
“Permission to appeal will not be required where the appeal is against a committal order … (CPR 52.3(1)(a)). In these cases, where the liberty of the subject is in issue, appeal lies of right.”
“13(1). Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt): and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings.
(2) An appeal under this section shall lie in any case at the instance of the defendants, and in the case of an application for committal at the instance of the applicant, and the appeal shall lie –
(b) from an order or decision of a county court … to the civil division of the Court of Appeal.”
“Lord Donaldson did not make it clear as to whether the effect of the right of appeal within the county court excludes the jurisdiction of this court. However, I am satisfied that the jurisdiction is not excluded. The position as to jurisdiction is that there are two alternative routes for appealing which someone in the position of Mr King can adopt: either he can go to the judge of the County Court or he can come to this court. But that being so, I have no doubt whatsoever that the appropriate course, in the ordinary way, for somebody in Mr King’s position to adopt is to go to the local court and the local judge, rather than come to this court.
In many instances that will be a more expeditious route of appeal for the appellant than coming to this court in the first instance. It is a course which will almost invariably be in his interest to adopt because if he gets a decision by the judge in his favour, he has that advantage. If he can challenge the decision of the judge as being wrong in law, he still has the opportunity to appeal from the judge’s decision under Section 13 of this Act. In my view, the language of Section 13(1) would be equally apposite to cover an appeal from the decision of the county court judge.
In addition, under Section 14(2) of the County Court Act, the person who is punished under that section has the ability to apply to the District Judge to revoke an order committing him to prison and to obtain his discharge in that way. There are thus three alternatives that are open to an appellant. However, so far as the appeals are concerned, this court normally will not be prepared to hear an appeal if the person concerned has not first exercised his internal right of appeal to which I have made reference.”
4. Concurrent jurisdiction in civil contempt proceedings and in criminal proceedings
(1) The jurisdiction of the court when exercising its jurisdiction in contempt proceedings is quite separate from any criminal proceedings which may be brought in the criminal courts, notwithstanding that it may arise out of the same set of factual circumstances.
(2) It is founded on an inherent power which derives from the jurisdiction of the court to enforce its orders.
(3) It is important that contempt proceedings should be dealt with swiftly and decisively.
(4) On the other hand a court has a discretion to adjourn contempt proceedings pending the outcome of other proceedings, but only where it is satisfied that there would otherwise be a real risk of prejudice which might lead to injustice.
“It cannot be said that the finding of the county court judge of contempt, which admittedly involved a finding of an assault on the day alleged in the Crown Court proceedings, could amount to circumstances providing an effective plea of autrefois convict for the appellant in the present case. In the County Court proceedings, the appellant was punished for contempt: in the Crown Court he was punished for the assault.”
“In approaching this matter we must remind ourselves of the overriding principle that orders of the court should be obeyed. That is an essential feature of the rule of law and it would be a recipe for anarchy if orders of the court could be flouted with impunity. We also, in this field, regard it as particularly important that where orders are made for the protection of a party, that party should be assured of effective protection. The principle that breaches of orders should ordinarily be dealt with ‘swiftly and effectively’ is undoubtedly correct and has not in any way been challenged.”
“The Commission recalls that the Convention guarantees neither expressly nor by way of implication the principle of ‘ne bis in idem’ as relied upon by the applicant.”
“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”
5. The appeal against the length of the sentence
Lord Justice Dyson:
Lord Justice Simon Brown:
ORDER: The appellant's appeal against sentence is allowed, a sentence of three months’ imprisonment being substituted for the nine months ordered by the judge. On the appellant's appeal no order for costs, save for detailed assessment of his public funding costs.
On the respondent authority's cross-appeal, permission to appeal is granted but there is no order on that cross-appeal save as to costs. The defendant Rowland Hurst do pay the London Borough of Barnet's costs of the cross-appeal, to be subject to a detailed assessment, his contribution to be assessed as nil. There be a detailed assessment of his public funding costs.