HM Attorney-General v Smith [2008] EWHC 250 (Admin)

Case No CO/4222/2007

[2008] EWHC 250 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 16th January 2008

Strand

London WC2

B E F O R E:

LORD JUSTICE LATHAM

MR JUSTICE COOKE

Between

HER MAJESTY'S ATTORNEY-GENERALClaimant

-v-

Between

MICHAEL SMITHDefendant

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Ms C Evans (instructed by the Treasury Solicitor) appeared for CLAIMANT

Mr J Russell (instructed by Tank Jowett) appeared for DEFENDANT

J U D G M E N T

LORD JUSTICE LATHAM:

This

[1]is an application by the Attorney-General for an order of committal against the respondent, Michael Smith, arising out of the events of 23rd, 24th and 31st March 2006. This court granted permission to apply on 2nd July 2007. The matter originally came before this court as a substantive application on 19th November 2007, at which time the respondent did not appear and indicated that he had not at that stage obtained representation. This court accordingly adjourned the matter, making it plain that this case raised issues of such seriousness that clearly a custodial sentence was in the contemplation of the judges and accordingly the respondent should have representation if at all possible. Fortunately today he has been represented by Mr Russell, for whom we are extremely grateful.

[2]The circumstances out of which this application arises were that on 23rd March 2006 the respondent went to the Willesden County Court intending to commence proceedings on behalf of a Mr Brazier, a friend of the respondent who was having trouble with his landlord, to ask for an injunction restraining the landlord from taking action against Mr Brazier. The administrative officer at the court handed him the appropriate forms, which were a claim form and an application for an injunction. From what he has told us today it would appear that he had at that time obtained a statement setting out Mr Brazier's account, which was in the first person, and that had been typed up by him from notes that he had made of Mr Brazier's account. He filled in the claim form and the application for an injunction.

[3]As far as the claim form was concerned, that set out the brief details of the claim and the proposed defendants' names and concluded with the pro forma statement of truth, which read as follow:

"Taking into account the matters which had been excised, I believe that the facts stated in the particulars of claim are true ... I'm duly authorised by the claimant to sign the statement."

And then his full name. Then in his handwriting "Michael Smith". Under that, the next line:

"Name of claimant's solicitors firm - Smith's Consultancy Agency."

That's again in his writing. And then under that he signed "Michael Smith"; against "Position or office held" he wrote "consultant." Underneath, he described himself as "Litigation Friend".

[4]However, he filled in the application for an injunction as "Mr Brazier", and signed it "A Brazier", giving Mr Brazier's address. He swore an affidavit before the administrative officer who would have required him to state on oath that he was the person who in fact was making the affidavit in the normal terms:

"I swear by almighty God that this is my name and handwriting and that the contents of this my affidavit are true."

The affidavit was the statement which he had typed out on Mr Brazier's instructions, according to him, which was, as I have said, in the first person, and he signed it "A T Brazier". It was clear, as a result, that he was representing himself as Mr Brazier for the purposes of swearing that affidavit and that he was intending that the court should understand that he was indeed Mr Brazier.

[5]The next day (24th March) he appeared before His Honour Judge Copley to make the application. He represented to the judge that he was Mr Brazier, that it was his affidavit that he was relying on - in other words his own affidavit. The judge granted interim relief with a return date of 31st March. On 31st March he attended court with Mr Brazier and when they appeared before the judge Mr Brazier identified himself as "Mr Brazier". This caused the judge some confusion and also some confusion on the part of Ms Susan John, who was the court clerk that day and who had been the court clerk the week before; Ms Susan John considered that the respondent was the person that they had understood to be Mr Brazier at the previous hearing.

[6]There was a short adjournment, during which Ms Susan John spoke to the judge confirming that was her view and when the judge returned to court he put the matter fairly and squarely to the respondent. We have seen the transcript of the proceedings thereafter. It is unclear from the transcript the extent to which the respondent was at that stage admitting the impersonation; but it is clear that he at no stage sought to challenge the judge's interpretation of events. The judge was satisfied that the respondent had indeed been impersonating Mr Brazier up until that hearing on 31st March and told the respondent that he intended to bring the matter to the attention of the Attorney-General for consideration of proceedings for contempt. It was in those circumstances that the Attorney-General, having considered the matters which I have described, considered that it was appropriate to bring these proceedings.

[7]It should be noted that one of the complaints, that is the complaint relating to the swearing of the affidavit, was capable of amounting to the offence of perjury. This court has in the past indicated that where that is, in effect, the sole basis upon which contempt proceedings are brought, it is usually more appropriate for the matter to be dealt with through the criminal courts by a charge of perjury. But Ms Evans, on behalf of the Attorney-General, has submitted that in the present case that was not considered to be necessarily the most appropriate way of dealing with the matter because the complaint does not simply relate to the swearing of the affidavit, but to the behaviour of the applicant throughout 23rd and 24th March and into 31st March.

[8]The respondent has accepted, and accepted virtually from the moment that the Attorney-General made the application to this court, that he had indeed been guilty of contempt. That is most clearly set out in an e-mail dated 8th October 2007, although it had never been in any way challenged up until that date. Today Mr Russel on his behalf, and he personally in his evidence, has confirmed that he indeed accepts that he was guilty of contempt, the contempt being that he pretended to be Mr Brazier for the purposes of the document making application for injunction; that he pretended to be Mr Brazier for the purposes of the affidavit and that he pretended to be Mr Brazier for the purposes of the application on 23rd March, and that he did so deliberately and intentionally, intending that the administration of justice might be affected by his actions. Accordingly, for the purposes of today, the sole question is the appropriate penalty.

[9]This court is empowered to impose a sentence of imprisonment for a maximum of two years, a fine of an unlimited amount, amongst the other sanctions which might be considered appropriate. This court has made it plain in the past that where there is interference with the administration of justice of such significance as this, including as it does, in my view, perjury, there will normally be a sentence of imprisonment. It will only be in exceptional circumstances that this court will deal with contempt of this nature in any other way.

[10]We have, however, considered the background to this matter and the personal circumstances of the respondent. When one looks at the documents with which we have been concerned, it is apparent that the first document that he signed, the claim form, was one which he completed perfectly appropriately; it was only after that that the deception commenced.

[11]The Attorney-General submits that the circumstances here show that this was a preplanned deception which accordingly should result in a severe penalty. In my view it is not quite as clear-cut as that. There is no doubt that the respondent was acting on behalf of a friend. I am prepared to accept that he did so out of concern that his friend was being wrongly treated, and that he fell into the temptation of completing the documentation on the day in question in the way he did because, to put it simply, it was easier for him to do that than to go and deal with the matter properly by getting Mr Brazier to come to the court himself, or to so construct the documents as to make it plain on the face of all the documents what his position was. He carried that deception through the next day; but it is noteworthy that he attended the next week with Mr Brazier in circumstances which were inevitably, as they did, going to give rise to the questions that the judge asked and the uncovering of the previous deception.

[12]I bear in mind the fact that this respondent has from the material before us an impeccable record: he has worked, it would appear, in the public sector trying to provide help for people within a social working context; perhaps most important for the purposes of today, he has now had this matter hanging over him since March 2006 when the judge indicated what he intended to do. That means that he has known that he has been at risk of imprisonment for about 21 months. He has said in his e-mails and other documentation that he submitted to the Attorney-General and to this court that that has had a significant effect upon him. I am prepared to accept that it must have done.

[13]When Ms Evans, on behalf of the Attorney-General, was making her submissions to us, I indicated that it seemed to me on a preliminary basis that the appropriate bracket for the sentence in this case was between three and nine months. To a significant extent, because of the delay, it seems to me that we can extend this mercy at least to the respondent; that is, that the sentence should be at the bottom end of that bracket. I would therefore propose that the sentence should be one of three months' imprisonment.

MR JUSTICE COOKE: I agree.

LORD JUSTICE LATHAM: So that's the order of this court; that he be committed to prison for three months.

[16]MS EVANS: My Lord, there is also the question of costs of these proceedings. Inevitably the respondent is in receipt of legal aid, as we understand it. But the Attorney-General would ask for the Attorney-General's costs of proceedings in any event, but obviously not to be enforced without the leave of this court.

LORD JUSTICE LATHAM: Has any schedule been prepared?

[18]MS EVANS: No, my Lord.

LORD JUSTICE LATHAM: I need to find out how much the Attorney-General would be asking for, ultimately. What do you say, Mr Russell?

[20]MR RUSSELL: I don't believe I could oppose that, provided it's in the usual terms. (Inaudible) the usual order is to grant without the leave of the court.

LORD JUSTICE LATHAM: Then the order I would propose that we make is that the Attorney-General should have his costs to be taxed if not agreed, but that the order for those costs should not be enforced without leave of this court.

[22]MS EVANS: I'm very grateful, my Lord.