MARK DEAN HARRIS v TANIA LESLEY HARRIS [2001] EWCA Civ 1645

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE - FAMILY DIVISION

(MR JUSTICE MUNBY)

[2001] EWCA Civ 1645

Case No B1/2001/1420

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL, Thursday 8 November 2001

Between

MARK DEAN HARRISApplicant

TANIA LESLEY HARRISRespondent

Before

Lord Justice Thorpe

Lord Justice Waller

Lord Justice Mantell

MARK TWOMEY (instructed by Messrs Thornleys of Plymstock, Devon PL9 7AZ) for the applicant

RICHARD RITCHIE (instructed by The Treasury Solicitors of London) appeared as amicus curiae.

The respondent did not appear and was not represented.

Date 8 November 2001

LORD JUSTICE THORPE:

For

[1]about the last three years Mr Harris has been an embattled litigant in the family justice system. With the passage of time the battle has intensified. Very considerable sums of public money have been spent, principally on the issue of contact. Many judges of the Family Division have had a hand in the case. On many occasions orders have been made restricting Mr Harris' ordinary rights in order to protect either his former wife or his children. Self-evidently Mr Harris has never accepted the court's authority and there have been numerous breaches leading to regular applications for committal. The last Family Division judge to deal with the case was Munby J. He delivered a comprehensive judgment reviewing the whole history of the proceedings on 22 March 2001. On the following day for various breaches of injunctions he imposed sentences, including a sentence of ten months imprisonment.

[2]Many of the judges of this court have also dealt with the case and on 2 May 2001 my lord, Lord Justice Waller, presided in a constitution that dismissed Mr Harris' appeal against that prison sentence. In the interim Mr Harris had made two unsuccessful applications to Munby J to purge his contempt. Mr Harris applied for permission to appeal other orders made by the judge on 22 or 23 March and that application was refused by another constitution of this court on 2 July.

[3]However on 14 June Mr Harris made his third application to Munby J to purge his contempt. In letters written to the judge Mr Harris had sought immediate release alternatively release on the basis that the remaining part of his sentence should be suspended. Munby J, who has particular expertise in this field, recognised that an application for conditional release under a suspended sentence of imprisonment raised a difficult point of law and accordingly invited the Attorney General to instruct counsel on the application as a friend of the court. Thus on 14 June the judge heard from Mr Harris in person and Mr Richard Ritchie instructed by the Attorney General.

[4]After hearing submissions the judge acceded to Mr Harris' alternative application. The order dated 14 June and perfected on 19 June reads in its essential paragraph:

"It is ordered that the applicant having today conditionally purged his contempt be released forthwith today (14 June 2001) from prison on terms that and it is further ordered that execution of the remaining part of the said sentence of imprisonment be suspended for nine months until 14 March 2002 when this order and the committal order shall cease to have effect on condition that until 14 March 2002 the applicant complies with the following terms namely that the applicant obeys the terms of the injunctions contained in the injunction order."

[5]The judgment explaining the judge's reasons for finding jurisdiction to make and for making that order were subsequently handed down on 21 June 2001. On 2 July this court, whilst refusing all other applications for permission to appeal, granted permission to appeal the order of 14 June, if permission were required. Subsequently the Attorney General was asked to instruct Mr Ritchie to repeat his assistance to the court on the point of law. Fortunately Mr Harris has received legal aid for this hearing and his case has been exceptionally well put by Mr Twomey. Mr Ritchie has equally performed his function in exemplary fashion in presenting the arguments for and the arguments against the conclusion that the order of Munby J rests on a secure legal foundation. There has been no challenge to the judge's exercise of discretion. Mr Twomey conceded that if the judge had the power to make the order it was plainly within the discretionary range.

[6]Thus this appeal raises the short point: can a court releasing a contemnor on his application to purge his contempt impose a suspended sentence in respect of the unserved balance of the prison sentence and, if yes, for what period can the court order the suspension to run.

[7]As I understand it Mr Harris' original complaint was that the suspended sentence which he had invited should not have been made to run beyond 22 August (the realistic date of his release from the sentence imposed on 23 March) or certainly beyond 22 January 2002 (the theoretical date of his release). However Mr Twomey attacked the judge's conclusion root and branch. His first and simple submission is that a contemnor applying to purge his contempt faces only three possible outcomes: i) Immediate release ii) Deferred release at a stated future date iii) The refusal of his application

[8]If the outcome is either ii) or iii) above then the order giving effect to that conclusion will clearly state his continuing right to reapply to purge. Whilst Mr Twomey accepts that the court has power to renew orders for protection, make fresh orders for protection or require undertakings from the applicant in acceding to the application to purge, he submits it has no power to vary the original sentence, other than in the manner indicated above, and has no power to impose a fresh sentence.

[9]His second submission is that in the event that the court did have such jurisdiction, it did not permit the suspension of the sentence beyond the period that the contemnor would actually have spent in prison had he served his sentence, alternatively, beyond the length of the original sentence as formally declared. Mr Twomey's third submission was that the elaboration devised by the judge was impermissible since the original order of committal of 23 March 2001 simply stated in a short paragraph following the sentencing paragraphs:

"And the contemnor Mark Dean Harris can apply to the judge to purge his contempt and ask for release."

That simple statement supported the submission that on an application to purge the judge's options were matchingly simple.

[10]Mr Ritchie directed his written argument to points raised in Mr Twomey's second ground. However in his oral submissions he dealt with Mr Twomey's fundamental attack on jurisdiction stressing that, apart from limited statutory restrictions, the powers exercised by the judge were unbounded common law powers and in the absence of direct authority it was permissible, and indeed praiseworthy for a judge to evolve the common law imaginatively to increase the flexibility and sophistication of the court's powers. Having set out with great fairness the arguments for and against the appeal Mr Ritchie sought to uphold the judge simply because we received the contrary argument from Mr Twomey.

[11]Before coming to my conclusions I will record the relevant statutory provisions and rules of court. I will then briefly consider relevant authorities.

[12]The principal statutory restriction on common law powers of the court is to be found in section 14(1) of the Contempt of Court Act 1981 which provides:

"In any case where a court has power to commit a person to prison for contempt of court and (apart from this provision) no limitation applies to the period of committal, the committal shall (without prejudice to the power of the court to order his earlier discharge) be for a fixed term, and that term shall not on any occasion exceed two years in case of committal by a superior court ...."

[13]The other relevant statutory provision is section 45 of the Criminal

Justice Act 1991 which provides essentially that once a contemnor:

"Has served the appropriate proportion of his term, that is to say - (a) One-half, in the case of a person committed for a term of less than 12 months; (b) .... It shall be the duty of the Secretary of State to release him unconditionally."

[14]The relevant Supreme Court Rule is RSC Order 52. Rule 7(1) provides:

"The court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify."

[15]Rule 8.1 provides more simply:

"The court may, on the application of any person committed to prison for any contempt of court, discharge him."

[16]A number of cases were cited to us in argument but, since it was common ground that the point for decision is not covered by any direct authority, I will be selective in my references. The case of Villiers v Villiers

[1994] 2 All ER 149

illustrates passingly within its history a judge abstracting an undertaking from an applicant on granting his application to purge, in the instance an undertaking to consult a psychiatrist. (see 152E)

[17]Of greater moment is the decision of this court in Delaney v Delaney

[1996] QB 837

. The problem presented to this court by that appeal was that the judge had sought to remand the contemnor in custody for reports in order to guide him in the sentencing exercise on an adjourned hearing. This court held that he had no power so to do. However Sir Thomas Bingham MR adopted a solution advanced by Mr Munby, on that occasion instructed by the Official Solicitor as friend of the court. The Master of the Rolls said this:

"In reliance on those authorities Mr Munby accordingly submitted that where the sentencing judge was uncertain as to what sentence he should impose, he could impose a sentence at the top end of the appropriate bracket whilst at the same time directing that the matter be restored for further hearing at the end of a suitable period. At that hearing the judge would in effect have three options. One would be to affirm the original order and leave the contemnor in prison, subject always to his right to make further applications to purge; secondly, the judge could order the immediate release of the contemnor; or thirdly the judge could indicate a future date at which the contemnor would be released subject, as I repeat again, to the right of the contemnor to make further application in the interim. That submission appears to me to be soundly based on the authorities to which reference has been made and it resolves the concerns the court felt on 16 October about the practicalities of handling situations of this kind."

[18]Mr Twomey has pointed out that parliament swiftly provided a power to remand in the case of occupation orders and non-molestation orders. Section 47(7)(b) of the Family Law Act 1996 provides a general power to remand and section 48 provides a specific power to remand for medical examination and report. However that statutory enlargement is only available in family cases and then only in those involving breach of occupation orders or non-molestation orders made under that statute.

[19]Certainly the case of Delaney illustrates the court's jurisdiction to use the common law power flexibly and imaginatively in order to meet a particular practical problem, albeit one which does not commonly arise. In the generality of cases at the stage where the judge is faced with the responsibility of imposing a custodial sentence he will have gained extensive knowledge of and insight into the parties to the proceedings. But plainly the common law power is not unlimited, quite apart from statutory restrictions. Certainly the sentence first imposed is mutable either by the judge of his own motion or as a consequence of an application by the contemnor to purge. However no one is liable to be sentenced twice for the same contempt nor can the original sentence be varied by way of increase. Much of the argument before us has turned upon whether the judge's order of 14 June constituted a variation of an existing sentence or the imposition of a fresh sentence and whether, if a variation, it was a variation by way of amelioration. Equally it was argued on the one hand that the order of 14 June was a demonstration of the living common law adapting flexibly to do better justice and on the other hand that the result produced by the order was uncertain and difficult to implement. For what was meant by 'the remaining part of the said sentence of imprisonment'? In the event of breach, what term would be served and how would section 45 of the Criminal Justice Act 1991 operate?

[20]Although the arguments on both sides are skilfully presented and finally balanced I am of the clear opinion that the judge did not have jurisdiction to make the order as drawn for two principal reasons.

[21]First I accept Mr Twomey's submission that the application to purge is rooted in quasi-religious concepts of purification, expiation and atonement. On such an application the judge may only say yes, no or not yet. In family proceedings imprisonment for civil contempt has proved a complex field generating much work in the courts of trial and a significant number of appeals. In my opinion it is of great importance that the powers of the court and the rights of the contemnor should be as clear and as certain as is consistent with the need to design orders that do justice and reflect the infinite variety of fact and circumstance displayed by individual cases. Whilst arguably the power to create, sometime after the imposition of the original custodial sentence, a sentence partly immediate and partly suspended would be a useful refinement, in my opinion the gain would be outweighed by the introduction of complications which would certainly complicate a contemnor's judgement as to whether or not to apply to purge and which would arguably risk an increase of litigation in this already over-burdened field.

[22]Second it cannot in my opinion be said with any certainty that the order represents a variation of the original sentence rather the imposition of a fresh penalty. Certainly the rules of the Supreme Court as presently framed suggest to me that the only power to suspend is the power to suspend the execution of the first order of imprisonment. The court's choice is only between warrant to be immediately executed or a warrant to be suspended. That choice is made at the sentencing hearing and does not recur. Furthermore even if the order of 14 June could be accepted as a variation of the order of 23 March I am by no means clear that it is a variation by way of amelioration. Whilst on the one hand I recognise the argument that a reduction of two months and eight days on a sentence of five months must be counted a significant amelioration (and Mr Harris must so have regarded it since that was what he sought in the alternative) a balance still has to be struck between the element of amelioration and the price paid by imposition of the Damoclean sword throughout a period of future liberty. The principle that variation must be by way of amelioration is important and in my judgment amelioration should be self-evident and almost irrefutable. Of course it would be possible to contrast extremes such as an immediate release ordered early into a long sentence balanced by a suspended sentence of brief duration for a limited period and an immediate release well into the original sentence balanced by a suspension for an indefinite period. Although Mr Harris in this case was not in doubt as to his preference it is easy to postulate the hypothetical contemnor who would prefer to serve his term in order to achieve unconditional liberty.

[23]It has of course been pointed out that if Mr Harris succeeds in his appeal he strikes down one of the objectives for which he contended on 14 June and risks a return to prison for a period of two months and eight days. However that would not in my opinion be the right conclusion. Munby J was clearly satisfied that there had been a measure of atonement otherwise he would have dismissed this application like its two predecessors. In my opinion the only realistic disposal is to substitute an order for unconditional release for the conditional order made by the judge.

[24]Finally I would like to pay tribute to the most learned judgment handed down by Munby J on 21 June. I express some diffidence at disagreeing with him in an area of the law of which he has such evident command. I only make the obvious point that on 14 June Munby J acceded to an application, in the alternative, advanced by an unrepresented contemnor. Furthermore Mr Ritchie's argument did not seek to deter him but only to marshal the finely balanced arguments for and against. We have had the same helpful presentation from Mr Ritchie but, by contrast the skilful attack on the judgment below marshalled by Mr Twomey.

LORD JUSTICE WALLER:

[25]I agree and would merely add the following point. In my view it actually adds very little to the armoury of the court to allow someone to 'conditionally purge' with the remainder of a sentence placed in suspense. Even on an unconditional release, it must be clear to Mr Harris that if he commits a further breach of the orders, the court will in assessing sentence take account of the fact that by his previous promises of good behaviour he was released part way through his ten month sentence. The court is likely to start from the position that he should at least serve that unserved part plus some further period for the contempts committed in breach of those promises, all subject to the overall limit of two years.

[26]If Munby J's order were maintained, the court which had to deal with any further breaches of the order, (presuming those breaches occurred within the period of suspension), would have to give effect to Munby J's order. It would then impose a further sentence for the further contempts again restrained so far as totality was concerned by the two year limit.

[27]I am not sure that I see any real difference between the two exercises. The exercise which a court would have to do if Mr Harris were to break the promises he has given not to breach the orders in the future will in practical terms be the same whether the remainder of his present sentence is suspended or whether he is unconditionally released with the warning of the consequences which will follow if he commits further contempts.

LORD JUSTICE MANTELL:

[28]I also agree.

Order

Allowed, legal aid assessment. (Order does not form part of the approved judgment)

Cited in 11 later judgments

and 2 more of the most senior