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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 >> Wilkinson v Lord Chancellor's Department & Anor  EWCA Civ 95 (04 February 2003)
Cite as:  1 WLR 1254,  EWCA Civ 95,  WLR 1254
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mrs Justice Bracewell),
MANCHESTER COUNTY COURT
(HHJ David Harris QC)
LIVERPOOL COUNTY COURT
(HHJ Morgan, HHJ Duncan)
London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALE
LORD JUSTICE LATHAM
| ALAN WILKINSON||Appellant|
|- and -|
|LORD CHANCELLOR'S DEPARTMENT|
- and -
|OFFICIAL SOLICITOR ||Intervenor|
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The 1st respondent mother did not appear and was not represented
Clive Sheldon (instructed by Lord Chancellor's Department) for the 2nd Respondent
Hugo Keith (instructed by Official Solicitor) for the Intervenor
AS APPROVED BY THE COURT
Crown Copyright ©
Lady Justice Hale:
The main appeal
"He was plainly out of control. He swept away the carafe of water, threatened the respondent's solicitor, and moved to attack the solicitor and the respondent, both of whom were obviously extremely frightened, and they covered their head with their hands in order to protect themselves. A police officer and two security guards by this time were in attendance, and they attempted to physically restrain [the appellant], with the assistance of [counsel for the respondent] and my clerk. I observed what happened during the course of a very violent struggle. [The appellant] had his arm round the neck of the police officer in such a tight arm lock that he was plainly unable to breathe and was in danger of losing consciousness. That was apparent from the change in his colour and demeanour and the way he was gasping for breath. It was a very violent and somewhat protracted struggle, and it required five people eventually to contain [the appellant] and to subdue him."
The judge therefore ordered that he be arrested and continued: 'He is remanded in custody forthwith and I shall assign a barrister to represent him and he will be dealt with for contempt in the face of the court.' She then continued with her judgment.
'has become totally and utterly obsessed with the litigation, that it has become a campaign which has taken over his life . . . he realises that his behaviour will have caused his ex-partner to be terrified and that she will continue to be terrified of him. He feels that there are times when she is deliberately obstructive towards him, but even then he was able to say that he recognised that this may be his own perception of her, because he is so eaten up with the desire to see his children, which he is eventually realising is not going to happen.'
Mr Devlin urged upon the judge that the appellant had learned his lesson and that further immediate imprisonment was not required.
"Mr Devlin has said everything that could possibly be said on your behalf . . . I have no doubt that you are obsessed with your litigation, as Mr Devlin has said, and that the litigation has been ongoing since 1998. It is, however, totally unacceptable for the business of the court to be disrupted in the way which occurred last Thursday. It was an extremely frightening incident for everyone who was in the court, and not just for those who were directly having to participate in order to try to restrain you. It was a prolonged piece of conduct on your part, and it was only because there were five people present that they eventually were able to subdue you . . . "
Arguments in the appeal
(1) The lawfulness of the detention from 18 to 22 October
"I should make absolutely plain that in the course of his submissions Mr Munby put entirely on one side contempts in the face of the court. Those are the subject of special provisions in the lower courts, section 118(1) of the County Court Act 1984 governing the position in the county court and section 12(1) of the Contempt of Court Act 1981 governing the position in the magistrates' court. A power has long been exercised by the superior courts to detain those committing or apparently committing contempts in the face of the court until the rising of the court on the day of the alleged contempt and there is no reason to doubt the existence of that inherent power. It has, however, no bearing on the present situation which was not such a contempt"
"The phrase 'contempt in the face of the court' has a quaint old fashioned ring about it; but the importance of it is this: of all the places where law and order must be maintained, it is here in these courts. The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. It is a great power - a power instantly to imprison a person without trial - but it is a necessary power."
In Balogh v St Alban's Crown Court  QB 73, a solicitor's clerk who stole a canister of laughing gas and planned to enliven the proceedings at St Albans Crown Court by releasing it into the court was detained overnight and dealt with next day. Although it was held on appeal that he was not guilty of contempt of court and that immediate punishment was in any event unnecessary because he was already detained on a charge of theft, no complaint was made of the overnight detention. But Stephenson LJ remarked of the summary procedure, at p 90a: 'It must never be invoked unless the ends of justice really require such a drastic measure; it appears to be rough justice; it is contrary to the rules of natural justice; and it can only be justified if nothing else will do.' However, the appearance of rough justice has been mitigated by the guidance given in later cases. In Moran (1985) Cr App R 51, a prisoner serving a sentence for burglary was sentenced to a further six months for refusing to give evidence against a person implicated in the same offence. The Court of Appeal stated, at p 53a-e:
"These situations are always difficult for judges to deal with. The trial judge is in a much better situation to assess what is required to be done than this court some months afterwards. The following principles should be borne in mind. First, a decision to imprison the man for contempt of court should never be taken too quickly. The judge should give himself time for reflection as to what is the best course to take. Secondly, he should consider whether that time for reflection should not extent to a different day because overnight thoughts are sometimes better than thoughts on the spur of the moment. Thirdly, the judge should consider whether the contemnor should have some advice . . .. Giving a contemnor an opportunity to apologise is one of the most important aspects of this summary procedure, which is in many ways Draconian."
This approach was taken further in R v Hill  Crim LR 457, where a woman who had made a disturbance in the public gallery was detained overnight and then committed to prison for seven days. The Court of Appeal held that this was a classic example of contempt and it was for the judge to take steps to safeguard the court's authority. These would in appropriate cases include (1) the immediate arrest and detention of the offender; (2) telling the offender directly what the contempt is stated to have been; (3) giving a chance to apologise; (4) affording the opportunity of being advised and represented by counsel and making any necessary order for legal aid for that purpose; (5) granting any adjournment that may be required; (6) entertaining counsel's submission; and (7) if satisfied that punishment is merited imposing it within the limits fixed by statute. As in Balogh, however, no complaint was made of the decision to detain her overnight.
(2) Referral to another judge
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility… that the tribunal was biased. The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances."
This test was approved by the House of Lords in Porter v Magill  UKHL 67;  1 All ER 464, paras 102, 103.
(3) Other points raised by the appellant
The applications for permission to appeal
The suspended committal order