“6. – Acts of public authorities. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if – (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section “public authority” includes – (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. …. 7. – Proceedings. (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may – (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. …. 9. - Judicial Acts. (3) In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required byArticle 5(5) of the Convention . (4) An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined. (5) In this section – “appropriate person” means the Minister responsible for the court concerned, or a person or government department nominated by him.” (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if – (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section “public authority” includes – (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may – (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, (3) In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required byArticle 5(5) of the Convention . (4) An award of damages permitted by subsection (3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined. (5) In this section – “appropriate person” means the Minister responsible for the court concerned, or a person or government department nominated by him.”
“E. And upon the court repeating to Mr LL that if the paternal grandparents refuse to return the child to this jurisdiction then the court expects the respondent father to make application to the Singaporean court to ensure M is returned to this jurisdiction pursuant to this Court Order.”
“I will not recuse myself. I do not consider that this matter is before me for any other reason than that because Mr LL has failed to comply with court orders. It is clear that he disagrees with my judgment and makes some specific complaints about it. The correct route in that case is that of appeal. Much of what Mr LL said before me today amounted to arguments that he was trying to put against the judgment which I have made. Any fair and impartial observer would find no bias in these proceedings other than that the court found against Mr LL and he thinks that that necessitates a different court considering matters of contempt. The hearing will go ahead.”
“Yes, well we will deal with the committal first. Mr LL can you come forward to give evidence, please? Mr LL I am afraid I am going to have to ask you to stand because I will not be able to see you if you sit down. Thank you.”
“Again M has not been returned to the jurisdiction. Mr LL has taken no active steps to get his parents to return M to this jurisdiction. I have seen nothing from his parents which would indicate anything other than an active desire to keep M from his mother and on the face of the evidence before this court that it is more likely than not that they have colluded with him in M’s retention.”
“I do not accept the validity of his arguments regarding the cultural difference upon which he seeks to rely. Not only were they not raised previously they do not disclose any reason why Mr LL could not have raised with the court in Singapore the difficulties he now faces.”
“The court has determined today that LL is in contempt of court for the breaches of all three of the court’s orders as M has not been returned to the jurisdiction of this court. There is no doubt about this, the contempt alleged is therefore proved to the necessary standard of proof that is to say beyond all reasonable doubt. Before I turn to sentence I shall add that the steps taken by Mr LL to have the orders effectively set aside amount to a determined and organised course of conduct which is contemptuous of the jurisdiction of this court. Moreover he has continued to lie to the court particularly regarding his financial situation.”
“49. Nevertheless I have a profound unease about the inclusion of a declaration of the court’s expectation, as this recital purports to be, in an order of this kind for the following three inter-related reasons. First, it is of course a fundamental principle that any injunction must set out clearly what it is that the respondent may or may not do or, in the case of a mandatory injunction, as here, what it is that the respondent must do. A recital such as this is not an injunction but there is a real risk that that is what it may be understood to be. Indeed the use of the phrase “the court expects” clearly indicates an assumption by the court, the assumption in this case being that the father will take action against the grandparents in Singapore. 50. Second, I am very doubtful it could ever be appropriate for the court to include in an order such as this a recital that is intended to pressurise or coerce a respondent into taking particular action which the court does not have the jurisdiction to order or, in so far as it does have jurisdiction, which it would not be prepared to exercise. In the present case the judge did not hear any developed argument or submissions as to whether the court had jurisdiction to order the father to take action of any particular kind in the courts of Singapore, and nor have we. Further, we have heard no submissions as to the nature of any such proceedings, whether and how they could be instigated by a person who could not leave this jurisdiction, the procedural steps they would involve, how long they would take, what they would cost or what their likely outcome would be. Yet by this simple recital the court expressed its expectation that the father would not only commence such proceedings but also, implicitly, pursue them to a successful conclusion. 51. Third, I am very concerned that such a recital may be used as a foundation or support for a subsequent application for committal for contempt in the event that the respondent fails to fulfil the court’s stated expectation. As will be seen, that is precisely what the judge did in this case. She attached weight to the father’s failure to commence proceedings in Singapore in deciding whether the father was in contempt, and also, having found that he was in contempt, in considering what sentence she should impose. 52. I have come to the conclusion that in all the circumstances of this case the recital was wrongly included in the order of21 March 2014 . It amounted to an attempt to coerce the father into taking unspecified steps which the judge was not prepared to order and yet it was always likely to be used, as it was in fact used, as support for the judge’s subsequent findings of contempt.”
“60. I turn then to the second ground of appeal and I can deal with this quite shortly. The judge having rejected the application that she should recuse herself, proceeded to hear submissions from Mr Jarman on behalf of the mother. The father was then asked by the judge to give evidence in the manner I have described earlier in this judgment. After taking the affirmation he was immediately subjected to questioning, first by Mr Jarman and then by the judge herself. It was only then that the father was asked if he wished to say anything. 61. Here again I believe the judge fell into error for she failed to keep in mind the important principles applicable to contempt proceedings articulated by this court in Hammerton v Hammerton[2007] EWCA Civ 248 ,[2007] 2 FLR 1133 . So far as this appeal is concerned, I would reiterate that proceedings for committal are a criminal charge for the purposes ofArticle 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 ("the Convention"); the burden of proof lies on the person seeking committal; and a defendant is not obliged to give evidence and this is a matter of which he should be warned. The father was given no such warning, however. To the contrary, he was asked to give evidence and was immediately cross-examined, first by Mr Jarman and then by the judge. This was, it seems to me, wholly wrong. Appearing as he was in person, the judge ought first to have explained to him the nature of the proceedings and that he was not obliged to give evidence at all. Then, if he wished to give evidence he should have been given an opportunity to give evidence on his own account before being subjected to cross-examination. The father was denied the warning to which he was entitled and then subjected to a procedure which was the inverse of what it should have been.”
“73. The final ground of appeal concerns the judge's approach to sentence. As I have explained, the judge not only found the father to be in contempt but then proceeded to deal with sentence, and she did so without giving him any further opportunity to secure representation or to make any submissions on his own behalf as to the gravity of the contempts of which he had been found guilty or by way of mitigation. Indeed the judge took it upon herself, and without hearing anything more, to declare that the contempt was "a very serious one". This was, it seems, for two reasons: first, the father had breached the clear orders to return M to the jurisdiction "with the apparent connivance of the parents"; and second, "the behaviour and duplicitous behaviour since judgment was given on the 14th March disclose flagrant and deliberate breaches of three court orders in a concentrated effort to keep M from his mother". The first of these was a finding that the judge had never made, save on the balance of probabilities; and the second appears to reflect once again the judge's concern at the without notice application the father had made to Theis J, an application which, though certainly foolish and wrong, seems to me to have had only peripheral, if any, bearing on the gravity of his contempts. 74. Here again, therefore, I believe the judge fell into error. She ought to have dealt with the issue of contempt first and then given the parties an opportunity to address her as to the consequences of her findings and the appropriate order to make. This course would have afforded the father the opportunity to which he was entitled to make submissions in his own defence as to the seriousness of the contempts which the judge had found and also by way of mitigation, and would have permitted the parties to assist her as to those matters which it was appropriate for her to take into account in deciding what penalty she should impose.”
“No action shall succeed against any person by reason of any matter arising in the execution or purported execution of his office of resident magistrate or justice of the peace, unless the court before which the action is brought is satisfied that he acted without jurisdiction or in excess of jurisdiction.”
“But once justices have duly entered upon the summary trial of a matter within their jurisdiction, only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction so as to deprive them of protection from civil liability for a subsequent trespass. As Johnston v. Meldon, 30 L.R.Ir 15 shows, an error (whether of law or fact) in deciding a collateral issue on which jurisdiction depends will not do so. Nor will the absence of any evidence to support a conviction: Rex (Martin) v. Mahony [1910] 2 I.R. 695; Rex v. Nat Bell Liquors Ltd [1922] 2 A.C. 128. It is clear, in my opinion, that no error of law committed in reaching a finding of guilt would suffice, even if it arose from a misconstruction of the particular legislative provision to be applied, so that it could be said that the justices had asked themselves the wrong question. I take this view because, as I have intimated earlier, I do not believe that the novel test of excess of jurisdiction which emerges from the Anisminic case [1969] 2 A.C. 147, however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute, has any application whatever to the construction of section 15 of the Northern Ireland Act of 1964 or section 45 of the Act of 1979. Justices would, of course, be acting “without jurisdiction or in excess of jurisdiction” within the meaning of section 15 if, in the course of hearing a case within their jurisdiction they were guilty of some gross and obvious irregularity of procedure, as for example if one justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence, or of the rules of natural justice, as for example if the justices refused to allow the defendant to give evidence. But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice. Such convictions, if followed by a potential trespass to person or goods would not, in my opinion, necessarily expose the justices to liability in damages.”
“…a magistrates’ court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause, (2) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent.”
“…The Court considers that the procedural flaw in the order authorising the applicant’s detention was so fundamental as to render it arbitrary and ex facie invalid.”
“While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Art.5(1), key principles have been developed on a case-by-case basis. It is moreover clear from the case law that the notion of arbitrariness in the context of Art.5 varies to a certain extent depending on the type of detention involved. One general principle established in the case law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Art.5(1). There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. The notion of arbitrariness in the contexts of sub-paras (b), (d) and (e) also includes an assessment whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The principle of proportionality further dictates that where detention is to secure the fulfilment of an obligation provided by law, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty. The duration of the detention is a relevant factor in striking such a balance. The Court applies a different approach towards the principle that there should be no arbitrariness in cases of detention under Art.5(1)(a), where, in the absence of bad faith or one of the other grounds set out at [69] above, as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the Court under Art.5(1).”
“(i) Recapitulation of the relevant principles 72. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. The Court must further ascertain in this connection whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein, notably the principle of legal certainty. - Recapitulation of the relevant principles: Principles governing the examination of compliance with domestic law 73. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should therefore review whether this law has been complied with. 74. However, the Court has clarified, particularly in its more recent case-law, that not every fault discovered in a detention order renders the underlying detention as such unlawful for the purposes of Article 5 § 1. A period of detention is, in principle, “lawful” if it is based on a court order. A subsequent finding of a superior domestic court that a lower court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. 75. In its more recent case-law, the Court, referring to a comparable distinction made under English law, further specified the circumstances under which the detention remained lawful in the said underlying period for the purposes of Article 5 § 1: For the assessment of compliance with Article 5 § 1 of the Convention a basic distinction has to be made between ex facie invalid detention orders – for example, given by a court in excess of jurisdiction or where the interested party did not have proper notice of the hearing and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court. A detention order must be considered as ex facie invalid if the flaw in the order amounted to a “gross and obvious irregularity” in the exceptional sense indicated by the Court's case-law. Accordingly, unless they constitute a gross and obvious irregularity, defects in a detention order may be remedied by the domestic appeal courts in the course of judicial review proceedings. - The required quality of domestic law 76. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. In laying down that any deprivation of liberty must be “lawful” and be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 does not merely refer back to domestic law; like the expressions “in accordance with the law” and “prescribed by law” in the second paragraphs of Articles 8 to 11, it also relates to the “quality of the law”, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. “Quality of the law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness.”
“180. Making a global assessment of the above-mentioned elements, that is, the domestic court’s failure to establish the facts of the case in their entirety, coupled with the applicant’s inability to defend himself in person on4 May 2011 and the failure to specify the reasons or time-limits for the applicant’s detention, the Court considers that the procedural flaws in the first-instance court’s decisions authorising the applicant’s detention, taken cumulatively, were so fundamental as to render them arbitrary and ex facie invalid.”
“40. The Court reiterates that Article 5 § 1 of the Convention requires in the first place that the detention be “lawful”, which includes the condition of compliance with a procedure prescribed by law. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. A period of detention will in principle be lawful if it is carried out pursuant to a court order. However, the domestic authorities must strike a fair balance between the importance in a democratic society of securing compliance with a lawful order of a court, and the importance of the right to liberty. The Court considers that in such circumstances issues such as the purpose of the order, the feasibility of compliance with the order, and the duration of the detention are matters to be taken into consideration. The issue of proportionality assumes particular significance in the overall scheme of things. 41. The Court observes that it is not in dispute that the detention was ordered by the domestic courts pursuant to Article 585 and that the length of the detention was stipulated on the basis of Article 586 of the [Criminal Code]. It remains to be determined whether the measure in question was proportionate. 42. The purpose of the court order was to secure payment of an amount due to the authorities by way of a penalty for breaching bail conditions. The Court considers that monetary guarantees are indispensable to ensure respect for the right to liberty when considering remand in custody. It notes however that in 2006 the applicant was indigent and unable to pay the said amount, although he might have been able to do so when he assented to the obligation in 2001. Indeed, it would have been reasonable for the applicant to assume that the proceedings against him would not have lasted over five years. The Court observes that the applicant had been under strict bail conditions for nearly five years. Thus, it is plausible to conclude that he had been unable to earn a living during that period. In such circumstances, it was unrealistic to expect that the applicant would be able to comply with the court order.”
“(iii) Flagrant denial of justice 98. The requirement of Article 5 § 1 (a) that a person be “lawfully” detained after “conviction by a competent court” does not imply that the Court has to subject the proceedings leading to that conviction to a comprehensive scrutiny and verify whether they have fully complied with all the requirements ofArticle 6 of the Convention . However, the Court has also held that if a “conviction” was the result of proceedings which were a “flagrant denial of justice”, that is to say were “manifestly contrary to the provisions of Article 6 or the principles embodied therein”, the resulting deprivation of liberty would not be justified under Article 5 § 1 (a). 99. The “flagrant denial of justice” test is a stringent one. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures that result in a breach ofArticle 6 of the Convention . What is required is a breach of the principles of fair trial that is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article. Under Article 5 § 1 (a), it is the detention of the person concerned, and not the person’s conviction, which has to be lawful. Only if the violation of Article 6 could be said to amount to a “flagrant denial of justice”, would Article 5 § 1 (a) be violated. As the purpose of Article 5 is to protect the individual from arbitrariness, a conviction cannot be the result of a flagrant denial of justice.”
“….most mishaps in judicial proceedings leading to imprisonment do not give rise to a breach of Article 5(1). Happily gross and obvious irregularities and flagrant denials of justice are rare events”