Swindon Borough Council v Webb (t/a Protective Coatings) [2016] EWCA Civ 152

“Many thanks for your letter. My understanding is that Mr Webb was arrested on several warrants, and should have been brought before the Court at the time of his arrest rather than being taken straight to prison, as he was committed in his absence. He instead appeared before the magistrates and never appeared in the County Court. I also understood this hearing had been brought forward and was being dealt with today? I am afraid I am not in the office, so you might like to contact the Swindon Civil team to find out whether that is the case, or not.”

“Upon Recorder De Freitas (sic) accepting that Mr Webb has in person this day in Court purged his contempt IT IS ORDERED THAT Mr Webb be released from custody.”

“Rec DeFreitas Well, can I tell you what this hearing is about? This hearing is an opportunity which the judge who made the order committing you to prison for four months for those breaches … Mr Webb Yes. Rec DeFreitas … that judge made an order that you could come here today and apply to purge your contempt. Do you understand that? Mr Webb Yes, sir, yes. Rec DeFreitas And in order to purge your contempt what you will need to do is to apologise to the court for breaching the terms of the injunction and promise to the court that you will not do it again. Do you understand that? Mr Webb 100%, sir, yes. Rec DeFreitas Are you willing to do that? Mr Webb Yes, I am very, very sorry. I wish that I would have done it a lot sooner to be fair on you, I realise, I do apologise. (inaudible). Rec DeFreitas And will you promise not to breach the terms of that order of 2007 again? Mr Webb No, sir. Rec DeFreitas Hmm? Mr Webb Yeah, I will promise you. Rec DeFreitas You understand what it is, and you understand that if you do breach those orders you are liable to imprisoned again. You understand that? Mr Webb I am fully aware of that now, sir. Rec DeFreitas Yes. Mr Webb But I just, I, I really do apologise to you and (inaudible). I really do apologise for that, all that, but I have had a lot of (inaudible), a lot of illnesses lately because I am suffering from spinal problems and bringing up blood and everything. Rec DeFreitas Yes. Mr Webb And I am not well. And I have just been left on my own, to be fair with you. I am now going through a heck of a lot of depression (inaudible) as well. So I am 57 years of age and there is, you know, not really a lot, you know, you know (inaudible). Rec DeFreitas Okay but can you tell me this, why, why should I accept your promise not to breach the orders again when you appear to have ignored them? Mr Webb I have breached one order. Rec DeFreitas Okay. Well, it was an order which made a series of restraints against you but, I mean, how sincere are you in promising not to … Mr Webb (inaudible) and sincere, sir, that it will never happen again, especially with what I have been going through this last fortnight, well, (inaudible). Rec DeFreitas Well, you have had a fortnight in … Mr Webb Oh yes, sir (inaudible). Rec DeFreitas … of incarceration. Mr Webb I said to the lady earlier now after today I would not have any more (inaudible). Rec DeFreitas Well, in those circumstances, Mr Webb … Mr Webb Pardon? Rec DeFreitas … in those circumstances I am prepared to accept in the light of your fulsome apology and the promise that you have made that you have purged your contempt and I will infer that you are making an application for release as envisaged by Judge Ambrose and I will therefore order your release. But understand you have made yourself a marked man and therefore … Mr Webb I appreciate that, I am well aware of that. Rec DeFreitas … and therefore it is all the more to your advantage to keep your promise to the court not to breach those injunctions again. Mr Webb No, they won’t ever, no, I said to the lady earlier it will never happen again. Before I come in here I didn’t even know what all this was about (inaudible), you know. Rec DeFreitas Yeah, well … Mr Webb I think I have learnt a lesson now this past, you know, few days. Rec DeFreitas Well, I hope so. Well, I will, I will accept that you have purged your contempt and I will order your immediate release. Mr Webb Okay, sir, thank you. Rec DeFreitas But you understand that those injunctions still stand and you have to obey them? Mr Webb Yes, sir, I appreciate that, yes. What I am going to do, sir, is get the family to give me more help because I have been trying to depend on myself because I am not a good reader or writer to be fair to you. I do have some (inaudible) skills and everything like that, you know? Rec DeFreitas Well, you do understand though that the … Mr Webb No, I cannot understand where (inaudible). Rec DeFreitas But you do understand that if you enter into the contracts that you have been entering into with customers you have to give them notice in writing of their cancellation rights. Mr Webb Okay, sir. Rec DeFreitas You … Mr Webb Can I … okay, yes, I will listen to you first, yes. Rec DeFreitas You do understand that? Mr Webb Yeah, I really understand that now, yeah, I understand that. Rec DeFreitas Right. Mr Webb And I was going to say to you, now, a lot of people (inaudible) have been telling me if a customer wants a job done, right, (inaudible) could you, have you got to have it in writing that you have got to, you can waiver that 7-day cooling off period? Rec DeFreitas In your case … Mr Webb This is what I have been trying to find out. Rec DeFreitas Well, in theory that is possible but in your case, Mr Webb, given the terms of the injunction your only safe course is actually to give them a notice in writing, notice of their cancellation rights … Mr Webb Yes. Rec DeFreitas … and you have got to prove, you will probably have to prove that you have done that. Of course, they may not wish to exercise those rights but you, according to the injunction, have got to give them notice … Mr Webb (inaudible), to, yeah, to (inaudible). Rec DeFreitas … that they have the right. You understand that? Mr Webb Yes, sir, very much so, yes. Rec DeFreitas Yes. Very well.”

“Court’s power to make order of its own initiative 3.3 (1) Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.”

“(3) Where the court proposes – (a) to make an order of its own initiative; and (b) to hold a hearing to decide whether to make the order,it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.”

“These past few weeks have seemed like months and have given me time to reflect on my stupid and immature behaviour for which I am truly sorry. I would like to apologise to the court and all the people involved in this case. I cannot do anything to change the past, except apologise, but I can and will make sure that the residents of Grange Gardens can live their lives without having to worry about me or any of my family.”

“I am prepared to accept that your apology is a sincere one and a considered one and not simply a device to get you released early from prison. I am impressed by the statement in your letter that you have warned the children of the consequences for you and the mother if there are further problems and your reassurances for the future to give some peace to the residents of the area who have been plagued by the activities of your family. With some hesitation therefore I see no benefit in keeping you in prison any longer and I am … prepared now to say that your contempt has been purged and direct that you should be released forthwith.”

“20. Hampton's conduct was undoubtedly unacceptable, including as it did many threats to residents, to whom it was a very serious nuisance and worry. His conduct was persistent. Committal, when the judge ordered it, was appropriate. There was no evidence of any previous custodial sentence which is to be taken into account. However, two weeks elapsed before Hampton's application was heard by the court, the judge having considered Hampton's letter. In my judgment, the judge was entitled to conclude that fourteen days in custody (which, by virtue of section 253 of the Criminal Justice Act 2003, amounts to a sentence of 28 days) was sufficient to entitle the judge to hold that the contempt had been purged. Taken with the five days which had been served previously, it was a sufficiently long period — a sufficient clang of the prison gates and a sufficient taste of custody — to persuade Hampton to behave himself in the future and to entitle the judge, within the discretion he had, to permit Hampton's release. The judge had very considerable knowledge of Hampton, who had appeared before him over many days. The judge was in the best position to assess the effect which custody had had upon him, and the significance of the statements made in the letter. 21. In my judgment, there is no real prospect that this court would reverse the finding of the judge. The judge had regard to the material factors, including the interests of residents and the public interests.”

“23. So far as the substance is concerned, I venture to express some caution about assuming that in a case such as the present the exercise is parallel to the jurisdiction exercised by the Court of Appeal Criminal Division on the Attorney General's reference. That was suggested in paragraph 8 of Wood v Collins, but only in connection with an appeal where it is sought to increase the original sentence of imprisonment for a civil contempt. It seems to me at least possible that the jurisdiction to purge for contempt appeals to a more fundamental aspect of the discretion of the court, which is to recognise that the situation in respect of which the sentence was originally imposed has changed because of a change of attitude of the contemnor, and that therefore the basis for continuing with the sentence has disappeared. But whichever of those views is correct, it is clear that the court will and must give very great weight to the view taken by the trial judge. In this case, as my Lord has pointed out, HHJ Meston had had the conduct of the case from the beginning, and it was he who was very well aware, as his earlier judgment demonstrated, of the implications, both for Mr Hampton in respect of his attitudes and for the surrounding neighbours and persons, who had been quite clearly seriously troubled by the conduct of Hampton and of his family. Not only did the judge have that in mind, but I have no doubt at all that he would have been reminded of those considerations by Mr Glen who appeared before him. Mr Glen has conducted this case fairly and with great thoroughness, and I have no doubt that the criticisms of, and alleged omissions or oversights in, the judge's approach that he put before us were fully emphasised to the judge. 24. Particularly that being so, in my view it is quite impossible for this court to interfere with the conclusion that the judge reached, not least because it would be tantamount to this court saying that when the judge concluded that the apology was sincere and one on which he could properly act he had simply been deceived by the applicant - a conclusion that an appellate court should only come to with the very greatest of caution, granted that we do not have the judge's acquaintance with the case and with the appellant.”

“. . . first, to punish the contemnor for disobedience of an order of the court and second, to attempt to coerce him to comply with the order.”

“6. An application for an order for early discharge is often described as an application to purge the contempt. Speaking for myself, I regard the terminology of "purging" a contempt as not particularly helpful, at any rate in the present context. To purge a contempt would in my view ordinarily mean to atone for a contempt, eradicate it or cleanse it of its previous ill-effect. Although a person committed to prison for breach of a mandatory order to do an act (such as to hand over a child, as in Corcoran v. Corcoran [1950] 1 All ER 495) may reasonably be said to purge his contempt if he thereupon does the act or causes it to be done, the notion is less easily applied to an act which amounts to the breach of a prohibitory order and which, once done, cannot be undone.”

“Aikens LJ 28. In the present type of case, if there is an application by a contemnor to the court for his early discharge from the term of imprisonment imposed, the court has to make a judgment on whether it is just that this should be done. It is not the exercise of a "discretion" in the sense that the word is frequently and often inexactly used. To my mind, the court has to consider two broad issues. First, despite the fact that the contemnor has not served the term originally imposed (which is itself subject to section 258(2) of the Criminal Justice Act 2003), has the contemnor demonstrated that he has now received sufficient punishment for his breach of the court's injunction? In this regard, the court will examine, at the least, whether the contemnor now not only accepts that he has been guilty of his contempt, but also that he is genuinely sorry for his misdeeds and repents them. Those sound old – fashioned, even religious, terms, but I think they best express what the court has to consider. There may be other things to be examined under this first question. If the answer to the question is "no, the contemnor has not so demonstrated that he has received sufficient punishment for the breach", then for my part, I cannot see how a court can consider an early release unless there are other, extenuating circumstances which require that the court consider the exercise of its power to grant an early release. 29. But, assuming the answer to that first question is favourable, I think the court must ask, secondly: will the interests of justice be best served in permitting his early discharge? Sedley LJ 32. I agree too with the analysis made by Wilson LJ of the practical difference in this context between the purging of contempt where the offence is breach of a mandatory order and where, as here, it is breach of a prohibitory order. In Harris v Harris [2001] EWCA Civ 1645, §21, Thorpe LJ accepted that "the application to purge is rooted in quasi-religious concepts of purification, expiation and atonement". In such a context, while compliance with a mandatory order may be the kind of proof of contrition which a court can evaluate, contrition sufficient to purge a breach of a prohibitory order is much more elusive and, many people might think, not really the business of the courts. Their task is completed, subject to any appeal, at the moment of sentence. . . . 36. Meanwhile, judges will be assisted by the questions suggested by Wilson LJ, so long as they are treated not as a tick-list but as windows on a problem which will always be case-specific and to which, as often as not, there will be no single right answer. In this regard, however, I would draw attention to what Aikens LJ says about the dubious use of the word discretion to describe the power the judge of first instance is exercising. Judge Farmer in his judgment cited without comment a passage from Arlidge et al on Contempt (3rd ed, §14-8): "The power of the court to discharge is discretionary and unfettered. No doubt, however, modern practice and parlance would require a refusal to discharge to be justified by the test of necessity and proportionality to the desired objective, whether penal or coercive." 37. Although it has not featured centrally in this appeal, I wish to enter some provisional caveats about this passage. First, there are no unfettered discretions. A judge cannot let a contemnor out because he feels sorry for him or because he would not himself have imposed so long a sentence. There has to be a reason for discharge known to the law. Secondly, it is for the contemnor to advance such a reason for discharge, not for the court to find a reason for refusing it. Thirdly, this is not a matter or practice or parlance: it is a matter of substantive justice. This is why the vocabulary of judgment is more relevant than the vocabulary of discretion. Fourthly, it is at the point of sentence that necessity and proportionality govern judgment. When a judge comes to consider discharge from a sentence which has already been found both necessary and proportionate, he or she is looking at new factors, if there are any, albeit these may modify what is now necessary and what is now proportionate.”