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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 >> Hammerton v Hammerton  EWCA Civ 248 (23 March 2007)
Cite as:  2 FLR 1133,  EWCA Civ 248
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WOOLWICH COUNTY COURT
His Honour Judge Collins
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
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Hearing date : 22nd February 2007
Crown Copyright ©
Lord Justice Moses :
"…not to contact or communicate with the Applicant, the Applicant's mother or father, nor her solicitors in any way whatsoever, neither send nor deliver to them any package or other missive and shall not encourage any other person to do so except through his own solicitors".
"forbidden to use or threaten violence against the applicant Beverly Hammerton and must not instruct, encourage or in any way suggest that any other person should do so, and is forbidden to intimidate, harass, or pester the applicant Beverly Hammerton and must not instruct, encourage or in any way suggest that any other person should do so".
"2. On 14th May 2005 the Respondent received a letter directly from the Appellant;
3. On 31st May 2005 the Appellant telephoned the Respondent's solicitors on at least 12 occasions being threatening and abusive;
4. On 31st May 2005 the Appellant telephoned the Respondent's parents over 30 times shouting abuse;
5. On 31st May 2005 the Appellant attended at the Respondent's parents' home knowing that the Respondent was present at the property. The Appellant forced entry by kicking the door in and was abusive and made threats to the Respondent;
6. On 6th June 2005 the Appellant telephoned the Respondent's solicitors on 2 occasions making threats;
7. On 7th June 2005 the Appellant telephoned the Respondent's solicitors over 50 times being threatening and abusive;
8. On 7th June 2005 the Appellant attended the Respondent's solicitors' office threatening and abusing members of staff;
9. On 14th June 2005 the Appellant telephoned the Respondent's solicitors' office being threatening and abusive."
The allegations identified at 2 and 5 concern breaches of the order. All the other allegations alleged breaches of the earlier undertakings.
Principles Relating to Committal
i) By virtue of s. 6 of the Human Rights Act 1998, it is unlawful for a court, as a public authority for the purposes of s. 6(3) of the 1998 Act, to act in a way incompatible with defendant's rights enshrined in article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). If any authority was needed for such a proposition, which it is not, it was expressed recently in R v Mustaq  2 Cr.Ap.R.32 p 485 at para 53 p 506. The need to ensure that the conduct of committal proceedings in family cases follows the precepts of the Human Rights Act 1998 is central to the Practice Direction (Family Proceedings: Committal) 2001 1 WLR 1253. This Practice Direction applied to the proceedings before HH Judge Collins in July 2005.
ii) Proceedings for committal are a criminal charge for the purposes of article 6 (see Re K (Contact: Committal Order) 2003 1 FLR 277 at para 21 p 282). Thus the defendant to such proceedings has the right enshrined in article 6(3)(c):-"to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."That right is reinforced by the jurisprudence of the European Court of Human Rights in recognising that the interests of justice, in principle, call for legal representation when deprivation of liberty is at stake (Benham v United Kingdom  22 EHRR 293 at 324). Such a right exists even where a defendant has parted company with one set of lawyers (see Re K per Hale LJ para 23) and see also Butler-Sloss P in Re: G (Contempt Committal)  2 FLR 58 at para 22 p 65). The obligation to afford a defendant representation imposed by virtue of article 6(3)(c) is not, however, unlimited. A defendant's intransigence in unreasonably failing to co-operate with whatever legal assistance is offered, or in refusing it, may make it impossible for legal assistance to be continued (see Re K per Mance LJ para 34). But absent such unreasonable behaviour, both article 6 and the decisions of this court make it plain that a defendant is entitled to be represented. If he is unrepresented then an adjournment should, save in circumstances of extreme urgency, be granted so that representation may be obtained.
iii) Since committal proceedings involve a criminal charge against a defendant, the burden of proving guilt lies on the person seeking committal (see article 6.2 of the Convention).
iv) A defendant to committal proceedings is not obliged to give evidence. His right against self-incrimination under article 6.1 applies with equal force to committal proceedings in the family courts as to any other criminal charge (see Re G para 22 and e.g., Saunders v United Kingdom  23 EHRR 313 and recently Lord Roger in R v Mustaq para 53 page 506).
v) In the event that the facts constituting contempt are proved, the seriousness has to be marked by reference not merely to the intrinsic gravity of the conduct, but also to secure compliance in the future. The courts must bear in mind that in family cases different considerations apply from other contempts; the parties are subject to heightened emotional tensions and there is often a need for family members to continue to be in contact with one another (see Hale v Tanner  FLR 883 at paras 25 and 29 and Aquilina v Aquilina  EWCA Civ 504 at para 10).
The Hearing: Procedural Errors in Proving Contempt
"…providing I could get a fair crack of the whip, your Honour, with a fair balanced view of direct contact under supervision, then I would be quite confident that eventually the court would grant me to take them out." (sic)
Procedural Errors: Sentencing
Would Representation have made a Difference?
"might have made a difference. I do not say that it would make a difference, but it might have done."
This suggests that in cases where a defendant has been deprived of his rights under article 6, it is necessary for the court to consider whether, had such a breach not occurred, it would have made any difference. I doubt whether it will ever be necessary for a court to speculate as to whether representation would have made a difference in cases such as these. The more serious a case, the more a defendant is likely to need persuasive and skilful representation. It is almost impossible to envisage a case where such representation will not be needed, if only, as this case demonstrates, to remind a judge of the principles which apply. Even in a case where a defendant admits each and every breach alleged, representation will be needed so as to assist the judge in considering the appropriate disposal. In my view, it will rarely be open to anyone opposing an appeal based on article 6 to contend that article 6 rights would have made no difference.
Lord Justice Wall :
 In our judgment, the level of sentencing in cases which preceded the Protection from Harassment Act 1997 (and perhaps in some later cases) does not fully reflect contemporary requirements and opinion. We think that parliament and society generally now regard domestic and other violence associated with harassment and molestation as demanding rather more condign deterrent punishment than formerly. In a somewhat different context, contemporary judicial opinion may be seen in the decision of this court in four appeals from decisions refusing contact to fathers in cases where there had been serious domestic violence – Re L (a child) (Contact: Domestic Violence)  Fam 260, in which the court accepted the advice of two psychiatrists, instructed by the Official Solicitor to report to the court on the serious effect of domestic violence on its victims, both adults and children.
 Furthermore, we do not regard the fact that the breaches in the instant case took place in the context of the appellant wishing to have contact with A as being in any way a mitigating factor. If anything, it is the reverse. The judge plainly thought so. In his sentencing remarks he said: "She is now acting as the mother of your child, and that is how you threat her". We agree with that criticism. The appellant had withdrawn his application for contact. In any event, separated parents have a particular responsibility to behave properly over all questions arising out of contact with their children, and it was fortunate that A was not present at any of the three incidents for which the appellant was sentenced.
Committals involving litigants in person