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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 >> Andreewitch v Moutreuil  EWCA Civ 382 (17 March 2020)
Cite as:  WLR(D) 171,  EWCA Civ 382,  4 WLR 54
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ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
Mrs Justice Lieven
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE POPPLEWELL
| Peter Richard Andreewitch
|- and -
James Weale (instructed by LSGA Solicitors) for the Respondent
Hearing date : 11 March 2020
Crown Copyright ©
Lord Justice Peter Jackson :
"JUDGE … Mr Andreewitch, you are entitled to legal representation and, indeed, because this is a committal you are entitled to legal aid. Are you aware of that?
PA: Yes, your Ladyship, and I have waived my right to have a legal representative.
JUDGE: All right. So - this is very important as far as I am concerned, I can record that I had informed you that you have a right to legal aid and you have waived your right to legal representation.
PA: But since we are here today and there is no lawyer for me, we would have to adjourn again and ---
JUDGE: We would. Well, it is up to you. You have an absolute right to legal representation because this is a committal, and you have a right to legal aid.
PA: Yes. I - I understand, your Ladyship and I prefer we continue.
JUDGE: All right."
"COUNSEL: --- you will have seen that Mr Andreewitch submitted a document that he described as a note but the end of it says, "I confirm the contents of my statement are true". What I would propose to do is to have Mr Andreewitch sworn in on the contents of that note because that sets out, to the extent that there is a discernible defence, his defence and then that would give me the peg on which to hang oral evidence in cross-examination.
JUDGE: Do – do you understand, Mr Andreewitch? You have made this statement – I perfectly understand you are representing yourself – but strictly speaking it is not a sworn statement at the moment. So what I would ask you to do is, when I come back from having read Ms Moutreuil's first witness statement, [to] ask you to go into the witness box and swear to the truth of the contents."
When the judge returned to court, Mr Weale suggested that PA was sworn in and that he would cross-examine him for about an hour. The judge acceded to this, adding that PA could first highlight anything he wanted from his note. The following exchange eventually took place:
"JUDGE: Mr Andreewitch, why do you not go into the witness box…
PA: Yes, of course…
JUDGE: … because then everything you say in your note I can take as evidence.
PA: Thank you. Thank you."
PA was then questioned briefly by the judge and cross-examined by Mr Weale for about two hours. The transcript of the cross-examination covers 50 pages.
"2. Appearing as a litigant-in-person, the judge ought first to have explained to me that in a committal proceeding I was not obliged to give evidence at all. I was given no such warning. To the contrary, I was asked to give evidence and was immediately cross-examined."
"The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect."
This provision is the subject of commentary in both the Family Court Practice 2019 (the Red Book) and the White Book 2019. The latter contains the following passage at 81.10.2:
"An order for committal for breach of a judgment or order to do or abstain from doing an act is more than a form of execution available to one party to enforce an order against another, because the court itself has a very substantial interest in seeing that its orders are upheld. Where an application is made to commit a defendant for contempt of court, it is obviously important that great care is taken by the applicant to ensure that all the procedural requirements in this Section of Pt 81 are met. However, committal orders ought not to be set aside on purely technical grounds which have nothing to do with the justice of the case, because that would have the effect of undermining the system of justice and the credibility of court orders. (See Nicholls v Nicholls  1 WLR 314, CA, Bell v Tuohy  EWCA Civ 423;  1 WLR 2703, CA, R. v Yaxley-Lennon  EWCA Crim 1856;  1 W.L.R. 5400;  2 Cr App R 30, and authorities referred to there.) Accordingly, para.16.2 of Practice Direction 81 states that the court may waive any procedural defect in the commencement (or conduct) of a committal application if satisfied that no injustice has been caused to the respondent by the defect…"
"31. The absolute right of a person accused of contempt to remain silent, which carries with it the absolute right not to go into the witness box, was established in Comet Products UK Ltd v Hawkex Plastics Ltd  2 QB 67, where this court held that such a person is not a compellable witness. This right is to be distinguished both from the privilege against self-incrimination and from legal professional privilege, each of which may entitle a witness in certain circumstances to decline to answer a particular question but neither of which entitles the witness to refuse to go into the witness box or refuse to take the oath (or affirm): see Re X (Disclosure for Purposes of Criminal Proceedings)  EWHC 242 (Fam),  2 FLR 944, para 9.
32. As both Re G and Hammerton v Hammerton illustrate, the principle in Comet has repeatedly been emphasised in this court; see also Re K (Return Order: Failure to Comply: Committal: Appeal)  EWCA Civ 905,  1 FLR 927, para 61, to which we were referred. Most recently, so far as I am aware, the relevant principles were summarised by Jackson LJ, with whom both Lewison LJ and Treacy LJ agreed, in Inplayer Ltd and ors v Thorogood  EWCA Civ 1511, paras 40-45:
"40 A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent: see Comet Products UK Ltd v Hawkex Plastics Ltd  2 QB 67. It is the duty of the court to ensure that the accused person is made aware of that right and also of the risk that adverse inferences may be drawn from his silence.
41 If the committal application is heard at the same time as other issues about which the alleged contemnor needs to give evidence, he is placed in the position where he is effectively deprived of the right of silence. That is a serious procedural error: see Hammerton v Hammerton  EWCA Civ 248. This is precisely what happened in the present case. Furthermore no-one told Mr Thorogood that an alleged contemnor has the right not to give evidence.
42 If the contempt application had been the subject of a separate hearing and Mr Thorogood had been informed of his right not to give evidence, he might have exercised that right. He could then have dealt with the contempt allegations by way of submissions. In that regard it should be noted that the judge based her two findings of contempt upon answers which Mr Thorogood had given under skilful cross-examination.
43 Mr Milford points out that Mr Thorogood was reminded of his right not to incriminate himself. That is true, but it is not sufficient. Mr Thorogood should have been told that he was not obliged to give evidence. Furthermore the litigation should not have been managed in a way that forced Mr Thorogood into the witness box.
44 Mr Milford submits that even if there had been a separate hearing of the contempt application, the result would have been the same. If Mr Thorogood gave evidence, he would have been caught out in cross-examination. If he had declined to give evidence, the court would have drawn adverse inferences.
45 What Mr Milford says may well be true. Indeed, as things have turned out, Mr Thorogood may be a very lucky man. Nevertheless there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards in the circumstances of this case."
As regards the facts of Re L, Sir James continued:
"55. The consequence of what I have just described was a serious, and in my judgment irremediable, procedural error. Because of the use that was made against him during the hearing on 18 January 2016 of the evidence which had been extracted from him under compulsion on 8 October 2015, Mr Oddin was denied the safeguards which anyone facing proceedings for committal is entitled to: in particular, and fatally, the right to remain silent, the right to refuse to go into the witness box. The court had forced him into the witness box on 8 October 2015 and then used his evidence against him, not in committal proceedings for perjury committed on that occasion (which would have been entirely permissible) but in support of committal proceedings in relation to a previous order. In my judgment, this amounted to a clear, serious and irremediable breach of the Comet principle, necessitating, for the reasons given in Hammerton v Hammerton and Inplayer, that the appeal be allowed. As Jackson LJ said in the passage from Inplayer which I have already quoted, "there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards in [such] circumstances." …
56. On this ground alone, the appeal must, in my judgment, be allowed."
"30. The judge having decided that the hearing would proceed, and having told the appellant that she could hear from him as a litigant in person, should have informed him of his right to remain silent. Nothing was said to the appellant by the judge or Ms Philpott to inform him of this fundamental right.
31. The appellant having elected to give evidence, the next step for the judge was to warn him about self-incrimination. No such warning was given. This failure compounded the failures to allow him legal representation and the failure to inform the appellant of his right to remain silent.
33. The point is made by the respondent that even if the appellant had been advised of his right to remain silent and warned of self-incrimination the outcome would have been no different. To that submission I note the approach of the court in the matter of L (a child) (above). Sir James Munby P rejected the respondent's argument that even if there had been a separate hearing of the contempt application the result would have been the same. He observed that the appellant may have been a very lucky man but went on to state that "…there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards in the circumstances of this case". A similar approach was taken by Sir Brian Leveson P in Re West where the court recognised that the failure of process invalidated the conclusion reached by the judge. Sir Brian Leveson P stated: "We recognise that it is likely to have made little difference but we are not prepared to assert that; it is far more important to underline the vital importance, where issues of contempt arise in circumstances of this nature, of following the approach laid down by the Crim PR." It is apparent from the authorities that the courts adopt a fairly strict approach and are reluctant to countenance arguments that procedural failings that go to the fairness of proceedings are immaterial."
34. I accept the appellant's submission that there were four breaches of procedure at the appellant's committal proceedings. They were caused by the failure of the judge to:
i) Adjourn the proceedings to permit the appellant to obtain legal aid and legal representation;
ii) Advise the appellant of his right to remain silent;
iii) Warn the appellant of the risk of self-incrimination prior to giving evidence; and
iv) For a second time, not adjourning the proceedings to afford the appellant the opportunity to obtain legal representation such as to enable properly informed and focused mitigation to be made on his behalf.
35. The effect of these breaches, singularly and cumulatively, was to deprive the appellant of valuable safeguards the purpose of which is to ensure a fair hearing. The appellant did not receive such a hearing. As a result the order for committal must be quashed."
"78. Before any court embarks on hearing a committal application, whether for a contempt in the face of the court or for breach of an order, it should ensure that the following matters are at the forefront of its mind:
(1) There is complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is: contempt in the face of the court, or breach of an order.
(2) Prior to the hearing the alleged contempt should be set out clearly in a document or application that complies with FPR rule 37 and which the person accused of contempt has been served with.
(3) If the alleged contempt is founded on breach of a previous court order, the person accused had been served with that order, and that it contained a penal notice in the required form and place in the order.
(4) Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to.
(5) Whether the judge hearing the committal application should do so, or whether it should be heard by another judge.
(6) Whether the person accused of contempt has been advised of the right to remain silent.
(7) If the person accused of contempt chooses to give evidence, whether they have been warned about self-incrimination.
(8) The need to ensure that in order to find the breach proved the evidence must meet the criminal standard of proof, of being sure that the breach is established.
(9) Any committal order made needs to set out what the findings are that establish the contempt of court, which are the foundation of the court's decision regarding any committal order.
79. Counsel and solicitors are reminded of their duty to assist the court. This is particularly important when considering procedural matters where a person's liberty is at stake."
The revised procedure rules that are currently subject to consultation should be a further source of assistance for litigants, lawyers and judges in ensuring the procedural integrity of committal proceedings.
Lord Justice Popplewell