7.1 Existing and new proceedings

An application by a party to the litigation must apply in the county court by notice to show cause under Form N78 in family proceedings and by Part 23 CPR Application Notice in non-family proceedings. The application is to the court which made the order or took the undertaking said to have been breached. There must be an affidavit in support stating the grounds of the application. The N78 or application notice must sufficiently particularise the allegations (see CCR Ord 29 rl (4A)) setting out the provisions said to have been broken and the ways in which they have been broken. Details in the affidavit alone are insufficient. The respondent must know the case he has to meet.

In non-family cases where there are no continuing proceedings the application is under Part 8 CPR, but permission to apply must be sought before issue where it is needed (see Practice Direction Committal Applications (‘PDCA’)). For further details of the Part 8 procedure see paragraph 2.5 of PDCA. The application must (unless the court orders to the contrary) be served not less than 14 clear days (two days in family cases) before the hearing.

7.2 The jurisdiction of District Judges

The power of the district judge to commit is restricted - the power is statutory only - in the following instances:-

7.2.1 Contempt in the face of the court

Under section 118 of the County Courts Act 1984 (‘CCA’), a district judge has the power to sentence for up to a month, and/or award a level 4 fine (max £2500).

7.2.2 Assault on an officer of the court whilst in the execution of his duty

Under section 14 CCA 1984, a district judge has the power to sentence for up to 3 months and/or level 5 fine (max £5,000).

In some cases, however, it may be thought more appropriate for the matter to be passed up to a circuit judge, if available, not least because a district judge is the High Bailiff under section 123 of the County Courts Act 1984 and there may be perceived to be bias under Article 6 of the European Convention on Human Rights.

7.2.3 Attachment of earnings

Failure to attend court when ordered to do so on a particular day plus offences under section 23(2) (a) - (f) of the Attachment of Earnings Act 1971, e.g. failure to comply with certain sections of the Act can attract a sentence of up to 14 days and/or a level 2 fine (£500).

7.2.4 Housing Act 1996 injunctions

A breach relating to anti-social behaviour or breach of terms of tenancy under sections 152 and 153 of the Housing Act 1996 can attract a sentence of up to two years and/or a level 4 fine.

7.2.5 Part IV Family Law Act 1996

A breach of an injunction containing a non-molestation or occupation order can attract a sentence of up to two years and/or a level 4 fine. A deputy district judge does not have the power to make a committal order for breach of a Part IV injunction or under the Housing Act 1996.

7.2.6 County Courts Act 1984

A breach of section 92 of the County Courts Act 1984 where a person rescues goods seized in execution under the process of the County Court can attract a sentence of up to 1 month and/or a level 4 fine.

7.2.7 Additionally

In certain civil proceedings, injunctions and committal applications may be heard by a district judge:

a)      if the claim has been allocated to the fast or small claims track;
b)      or if the financial value is below £15,000 (in cases that have not been allocated at the time of the application);
c)      or if the terms have been agreed by the parties;
d)      or if the injunction is connected to a charging order or receivership order by way of equitable execution (PD 2B, para. 9).

Note that PD 2B to the Civil Procedure Rules states the district judge has power to commit under section 3 of the Protection from Harassment Act 1997; but there is no such statutory authority to commit, only to issue a warrant for arrest.

7.3  Circuit Judges and Recorders

In all other cases the county court’s powers to grant injunctions and order committal must be exercised by a circuit judge or recorder. It is preferable that committal applications should be heard by a circuit judge rather than a recorder, but this is not always possible.

Procedural requirements for committal

7.3.1 Service

The respondent must be personally served with the injunction unless he was present at court when the injunction was granted and was made aware by the court of the penal provisions upon breach, or the respondent was notified by telephone, telegram or otherwise, or else the court dispensed with service (see CCR 29 1(6) and 1(7)). As to an undertaking being served after it was made, see CCR 29 rule 1A. Dispensing with service may have human rights consequences (see paragraph 7.11 below).

7.3.2 Penal notice

The order shall incorporate a penal notice explaining the consequence of disobedience (see CCR 29 1(3)). This is automatic where an injunction has been granted.

7.3.3 Particulars

See paragraph 7.1 above as to particularising allegations. If the alleged contemnor has been arrested under a power of arrest does he/she know the precise allegations made against him/her?

7.3.4 Representation

The alleged contemnor should be aware of his right to obtain legal representation. In many cases if he wishes to have such representation, the judge can arrange if appropriate for his clerk to contact an appropriate solicitor who has a contract for providing Help at Court. However in most cases it may be preferable (for both practical and human rights reasons) to adjourn the case and give appropriate directions. Note however that when the court deals with contempt in the face of the court this is a criminal proceeding within the meaning of the Access to Justice Act 1999 and the court is able to grant a Criminal Representation Order to any solicitor or barrister whether or not the solicitor/counsel has a contract with the Legal Services Commission.

Note that in King v Read and Slack [1999] 1 FLR 425, the judge’s failure to inform the respondent of his rights to legal aid (now public funding) was a material irregularity and the prison sentence was set aside.

7.3.5 Additionally

In all cases written evidence is by affidavit. For the court’s case management powers in non-family cases see PDCA paragraph 4. Contempt applications must normally be heard in public and preferably robed. The criminal standard of proof applies in all cases. Nonetheless the proceedings remain civil.

7.3.6 Breaches

Any committal order (in Form N79 in family cases) must state precisely the facts of each breach which has been proved, identify which provision of the injunction/order has been breached and what sanction is being imposed.

7.4 Criminal contempt in the County Court

Although in the past the courts have distinguished between civil and criminal types of contempt it is better to classify contempt as falling into two categories:

a)  conduct which involves a breach or assisting in the breach of a court order (generally called civil contempt); and
b) conduct which involves an interference with the due administration of justice, either in a particular case, or more generally, as a continuing process: the definition of Sir John Donaldson MR in A-G v Newspaper Publishing plc [1988] Ch 333 (generally called criminal contempt).

The court initiates proceedings in cases of criminal contempt; in certain cases it is a matter for the Attorney General. Such contempt occurs where the conduct of the contemnor is disruptive or designed to disrupt court proceedings, or is an attack upon the judge or an officer of the court in the execution of his duties. (By contrast civil contempt is for instance breach of a court order or an undertaking given to the court). Note that an undertaking in an ancillary relief order is not generally enforced as a contempt as there is no formal undertaking given to the court. Indeed, it is better recorded as an undertaking to the other party to the matrimonial proceedings i.e. a form of agreement rather than a promise to the court.

In cases of criminal contempt in the county court the powers of contempt may be exercised by the circuit judge or the district judge under sections 14 or 118 of the County Courts Act 1984.

In the High Court it is for the High Court judge to deal with the contempt, whether that contempt has been committed before him or her, or before a Master or district judge (see CPR Schedule 1, 1/RSC/52 and CPR Schedule 2, 1/CCR29).

The judge should:

a)      Tell the respondent of the possible penalty he faces.
b)      Tell the respondent in detail, preferably in writing, of the words, action and behaviour that has given rise to the application for his committal (see Form N90 for assaulting officers of the court or for rescuing goods);
c)      Tell the respondent if he considers an apology would remove the need for the committal application.

It is the court which punishes for contempt. Where a judge was faced with outbursts from the public gallery in R v Lewis (1999), The Times, 4 November, the Court of Appeal said that the wiser course might have been to rise so that those who wanted to behave badly could do so in his absence. A seven day sentence for contempt was quashed on appeal and no penalty imposed

The court may initiate committal proceedings itself for cases of civil contempt: see re M (a Minor)(Contempt of Court: Committal of Court’s Own Motion) [1999] 2 WLR 810. But such a course is said to be exceptional.

7.5       Dismissals and Adjournments

7.5.1 Service

See paragraph 7.3.1 above. If you are satisfied the respondent has not been served and had no sufficient knowledge, you can then can dismiss, unless prepared to dispense with service. Otherwise, you should adjourn for the applicant to call evidence on the issue.

7.5.2 Legal advice

See paragraph 7.3.4. above. If the respondent already has a solicitor, do not proceed in his absence unless the respondent has been given ample opportunity to consult him and has not done so and does not wish to do so. It is safer usually to adjourn first hearing to give the respondent the opportunity to consult.

7.5.3 Absence of parties/representative:

If the applicant is absent, either dismiss or adjourn to discover if they wish to pursue the application.

If the applicant’s solicitor is not present then, whilst it is possible to proceed, it is generally safer to adjourn, unless the respondent admits the breach and/or the matter can be disposed of that day.

If the respondent is absent then, if satisfied that he has been served with the application, it is possible to proceed but it is generally safer to adjourn. If you do proceed and find a breach, then you should rehear the whole case once the respondent is before you. If the respondent’s solicitor is not present it is safer to adjourn, unless the respondent is prepared to admit a breach which would not involve a custodial sentence.

7.5.4 Absence of witnesses or particulars

Only proceed once the allegations are sufficiently particularised and reduced to writing and when the parties have had sufficient time to consider/investigate the matter, and an opportunity to call any witnesses.

7.5.5 Generally

If the conduct could not amount to a breach (even if proved), dismiss the application. If the conduct, although technically a breach, is too trivial to merit punishment, dismiss. If the application amounts to an abuse of the court, dismiss (see PD paragraph 5). If the conduct is so minor that any period already served in custody is sufficient, inform the parties and dispose of the case forthwith (see also 7.7 below).

7.6 Remands

7.6.1 Remand in custody

This can only apply:

a) in a family case;
b)  for a maximum of eight days (unless for a medical report);
c)  if the arrest was lawful (see 7.6 below);
d)  if the respondent is brought before you within 24 hours of arrest;
e)  if is justified, e.g. for the reasonable protection of the applicant;
f)    to secure the respondent’s attendance at court.

7.6.2 Arrest

A lawful arrest can only be made if:

a)   there is a power of arrest included in the order; and
b)  the conduct alleged would, if proved, amount to a breach of the part of the order to which the power of arrest is attached; and
c)  the police officer had reasonable grounds to suspect a breach had been committed.

Note that although there can be an arrest in cases under the Housing Act and Protection from Harassment Act 1997, there is no power to remand in custody. If not dealt with upon production of the respondent, he must be released to an adjourned hearing.

Where there is power to remand in custody, the court has the power to remand on bail. However, there is no additional advantage in so doing and it is as effective to adjourn to a fixed date, warning the respondent that the order still applies and that the court may well proceed in his absence if he does not appear. It may be appropriate in the interim to strengthen the terms of the injunction.

7.7 Findings

A breach can only be proved if you are sure:

d)   the respondent knew of the order;

e)  his conduct is a breach of the terms of the order as literally construed; and

f)    his conduct was deliberate (which is not the same as intending to breach the order).

Review the evidence, make findings of fact in respect of each allegation which is pursued, give reasons for the findings and identify the part of the order breached. Also, identify any allegations not pursued, withdrawn or not proved.

7.8 Punishment generally

7.8.1  Maximum term

The county court can imprison for a fixed term not exceeding two years: see the County Courts (Penalties for Contempt) Act 1983. Note that section 45 of the Criminal Justice Act 1991 provides that one half of a sentence of less than 12 months is served and only two thirds of one for 12 months and over. The county court has no jurisdiction to commit for contempt where a party gives information to a newspaper prejudicial to the proceedings before a court: see Bush v Green [1985] 3 All ER 721. A person under 18 cannot in be committed to custody.

7.8.2 Does the conduct merit punishment?

The court must be satisfied that the conduct of the defendant merits punishment. Where the breach is trivial or an application disproportionate to the issues at stake, or where it is likely that no useful purpose is served by the contempt proceedings, the court should dismiss the application with costs (see Adam Phones v Goldschmidt [1999] 4 All ER 486). Remember the purpose of a sentence is to uphold the dignity and the authority of the court and to ensure future compliance.

7.8.3 Does the conduct merit imprisonment?

Where there is a reasonable alternative to committal to secure compliance with an order, it should be used. In Danchevsky v Danchevsky [1974] 3 All ER 934, it was held that an order for possession could have been enforced by a warrant.

Imprisonment is not to be considered the automatic consequence of breach. In particular, where in a non-molestation case no actual violence is proved, the court should consider the limited range of alternatives to imprisonment. Equally there is no rule that the sentence should be suspended on the first breach of an injunction. It may however be sufficient simply to re-issue the injunction for a longer period or in stronger terms.

A fine is usually inappropriate for a breach of a violence injunction, but could be appropriate for a breach of an order such as to file documents by a certain date.

Note the common view that the arrest of a debtor who has failed to provide information under section 23 of the Attachment of Earnings Act is usually considered enough without imposing further imprisonment.

7.8.4 Length of prison sentence

The court should give consideration to the totality of the sentence if there is a finding of more than one breach. The maximum sentence must include both suspended sentences which are activated and consecutive sentences. The period of committal should be decided without reference to whether or not the sentence is suspended. A sentence should never be less than eight days and the better starting point is 14 days. It should be proportionate to the offence, reflecting the breach of the order not the history of the case: see Cambridgeshire County Council v D [1992] 2 FLR 42.

7.8.5 Suspended prison sentence

As to the terms upon which a court may suspend a committal: see Griffin v Griffin [2000] 2 FLR 44 where a suspended sentence imposed at a previous committal application ‘if and so long as’ the respondent complied with a non-molestation injunction and an occupation order ‘until further order of the court’ were held valid and could be the subject of a sentence for contempt when breached, i.e. the order was valid even though the effect was to suspend the sentence of imprisonment indefinitely.

7.9  How does the court exercise its powers?

The court must be sure that the undertaking or injunction order has been breached. The court must not make a suspended committal order to be activated merely upon the filing of evidence to the effect that the terms of the suspension have been breached: see Ansah v Ansah [1977] 2 All ER 638.

The court’s powers can extend to protect witnesses outside the court. In Manchester City Council v McCann [1999] 2 WLR 590, the court examined its powers under section 118 of the County Courts Act 1984 to protect witnesses travelling to court. It was held that ‘going to or returning from the court’ under section 118(1)(a) included a threat to a witness on his way home after giving evidence in proceedings.

In many cases where there is mental incapacity on the part of the defendant, an injunction should not have been granted in the first place: see Wookey v Wookey [1991] 2 FLR 319. For a case where a short period in custody was served prior to the determination of the committal, see P v P (Contempt of Court) [1999] 2 FLR 897. The court will be concerned with the capacity of the defendant both to understand and to obey the order. Consider the appointment of a litigation friend and if necessary consult the Official Solicitor.

The court must state findings and give reasons for its decisions. Each breach if punished can be dealt with by concurrent or consecutive sentence but there must be a separate identifiable punishment for each.

What if the behaviour the court is considering also amounts to a criminal offence and there is a separate prosecution? The court is only considering a civil contempt and not a crime, and it is not reflecting the nature or seriousness of that crime. Sentence for contempt only.

Who should be allowed to address the court? The applicant’s views should be heard but are not decisive. In Manchester City Council v Worthington, [2000] 1 FLR 411 the judge’s decision to rely solely on the defendant’s limited admissions without hearing the Council was set aside. The person in whose favour the order was made is entitled to call evidence and make submissions so as to assist the court in determining the seriousness of the breach, if it determines there has been one.

The defendant must be allowed to mitigate. A contemnor must be allowed to seek to mitigate and apologise after any contempt has been proved and before the court imposes any penalty: see the Manchester City Council v Worthington case, above, where the judge was overturned when he refused to hear the facts and gave no judgment and it was held there was a failure to act in a manner consistent with natural justice to both contemnor and complainant.

The court might not sentence if the injunction really should not have been granted, e.g. where an occupation order is granted ex parte, which is rarely if ever justified. Finally, it is desirable for the court to explain the rationale for its sentence to a contemnor.

7.10 Sentencing guidelines

The court does not have the ordinary range of penalties in criminal sentencing available to it. Instead it can fine, sentence to imprisonment or suspend sentence. It can also extend the length or scope of the original order and can also suspend any sentence for the duration of the new order.

A committal order can be forthwith or suspended. Suspend if you consider that the mere threat of serving a sentence will in itself deter. It is often sensible - but not mandatory - to make a first sentence for breach a suspended.

Committal to prison is a last resort and any sentence should be as short as is just in all the circumstances. This does not mean that the sentence for a first breach must be short Ð particularly where the conduct is serious.

The purpose of the sentence is to mark the court’s disapproval of disobedience to its order and to secure future compliance with the order.

Thus the period of imprisonment (immediate or suspended) should reflect:

a) previous history and the context of the breach;
b)  umber of and seriousness of each breach;
c)  the court’s objectives (i.e. not to punish any crime involved);
d)  mitigation (including representations from the applicant);
e)  totality of sentence (including some reasonable relationship to the maximum).

Thus most cases would justify a sentence of between 28 days and 6 months (suspended or immediate).

7.10  What length of sentence?

The following cases may be of help.

a) Harris v Sharpe [1995] CL 2367, CA. Defendant got his nephew to deliver a note to his children, saying he wished to see them, in breach of an injunction. A sentence of three months was said not to have been too harsh but the court nonetheless suspended it upon appeal.

b)  Aubrie v Damallie [1994] 1 FCR 131, CA. Respondent entered applicant’s house in the early hours, grabbed her by the throat and bit her lip. It was not the first time violence had been used by him. Held three months imprisonment justified.

c) Naring v Dhami [1995] CL 3952, CA. There was a long history of violence and a number of non-molestation injunctions. Sentence of 12 months for two assaults and a telephone call. Upheld on appeal despite some inaccuracies in the committal order.

d) Loseby v Newman [1996] CL 799, CA. R is breach of an ex parte injunction. Sentenced to three months suspended for a year. Held that ex parte order disapproved in the circumstances and three months excessive. In addition numerous defects were observed in the committal order. Inter alia the order failed to set out the breaches found proved.

e) Ticehurst v Ticehurst [1996] CL 2843, CA. Respondent was guilty of a serious breach of an undertaking he had given four hours previously. He was committed for 10 weeks. Sentence upheld on appeal in view of history of violence and the immediacy of the breach of undertaking.

f)   Wilson v Webster [1998] 1 FLR 1097. A two-week sentence for a ‘vicious’ attack outside a solicitor’s office was increased on appeal to three months. Held that at first instance there has been an excessive discount for admission of guilt.

g) Rafiq v Muse [2000] 1 FLR 820. A young man with a non-treatable personality disorder and who repeatedly harassed his mother (and who reduced her to a petrified state leading to a suicide attempt) was sentenced to six months imprisonment for breach. He had deliberately chosen to ignore an injunction on this and earlier occasions.

h) Hale v Tanner [2000] 2 FLR 879 provides the most useful up to date guidelines on the exercise of the contempt under Part IV of the Family Law Act 1996.

7.11     Human Rights

7.11.1 Criminal

Contempt of court is seen as a criminal charge: see for instance Newman v Modern Bookbinders [2000] 2 All ER 814. Where a power of arrest is exercised the charge should be put in writing and read over to the defendant (unless it is clear he has already read and understood it) at the outset of the hearing, so that he knows the case he has to answer: see Article 6(3)(a) and (b) of the European Convention on Human Rights. It is not clear in arrest cases who should prepare the charge in writing. In Human Rights and Part IV of the Family Law Act 1996 (2000) Fam Law 905, Judge John Platt suggested that it is the task of the police in family cases. In most cases it is better that the applicant’s solicitors do it or the court itself.

7.11.2 Preparation and representation

Article 6(3)(b) also stipulates that a defendant must have adequate time and facilities to prepare his defence and seek legal advice. An adjournment may be necessary where the defendant has only recently been granted a funding code certificate or legal help.

If a person is in danger of losing his liberty he must be offered the chance of legal representation and if necessary to apply for public funding for that purpose (see Article 6(3)). The court no longer has the power to grant public funding.

7.11.3 Arrest and detention

Where the defendant has been arrested, the court must be satisfied that the defendant has been lawfully arrested. If not, his immediate release must be ordered: see Article 5. This does not preclude an adjournment where an adjournment is possible, provided there is no exercise of any power (where applicable) to remand in custody or on bail. An arresting officer must have reasonable grounds for believing that the defendant has been served with order he is said to have breached or otherwise made aware of the term of such an order: see Articles 5 and 8.

7.11.4 General

A general rather than a specific non-molestation injunction may be contrary to the Convention (and unlawful pursuant to Article 8(2)). Trivial or non-violent conduct may fail the test of being necessary in a democratic society.

Proof of service of the order may be vital. The defendant is entitled to challenge the evidence of the person filing a statement or affidavit of service (see Article 6(3)(d)). A court may now not be able to cure a defect by dispensing with service. Although this was allowed in Davy International v Tazzyman [1997] 3 All ER 383, it appears to be in breach of Article 7.

The case must if adjourned be brought back within a reasonable time.

If there is any risk of the appearance of bias, the judge must ask another judge to deal with the committal application (in civil cases, see PDCA paragraph 14 Part II).

If the respondent is unable to understand English, he must be allowed to arrange for an interpreter to attend the hearing, seeking the court’s assistance if necessary. He must be told that a language interpreter will be provided free of charge if necessary.

7.12     Purging contempt

The rule is set out at CCR 29:

‘A Respondent in custody other than a Respondent detained under Order 27, rule 8, or Order 28, rule 4 or 14 may apply to the court for his discharge in writing attested by the governor of the prison (or any other officer of the prison not below the rank of principal officer) showing that he has purged or wishes to purge his contempt. Not less than one day before the hearing the notice is to be served by the Respondent upon the applicant for the committal.

If the committal order:

a. does not direct that any application for discharge shall be made to a judge; or

b.was made by the district judge under section 118 of the Act any application for discharge may be made to the district judge.

These provisions do not affect the jurisdiction of the Official Solicitor.’

Note that the provisions as to the High Court may be found in RSC Order 52.

A useful power of the court is its ability to order the release of the respondent at a future date. The court is not obliged to order release forthwith where the respondent applies to purge. The authority is Yager v Musa [1961] 2 QB 214. See also Vaughan v Vaughan [1973] 1 WLR 1159 and Delaney v Delaney [1996] QB 387.

7.13     The mentally ill defendant

Note also the Contempt of Court Act 1981, sections 14 (4) and (4A). The county court is (by virtue of the County Court (Penalties for Contempt) Act 1983) a superior court for the purpose of these sections. The court can remand to hospital for report and make a hospital or guardianship order, but take care; the relevant sections (35 et seq.) of the Mental Health Act 1983 must be strictly complied with. And bear in mind Wookey v Wookey [1991] 2 FLR 319, CA; if the defendant was seriously mentally ill at the time of the injunction, it should not have been granted. If he became ill subsequently, he may have a defence to the contempt proceedings on the ground that his disobedience to the order was not willful. You are likely to find few situations in which you are persuaded that these undoubted powers are properly exercisable.