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Champken v Champken [2005] EWCA Civ 320

Appeal against committal order allowed on the basis of fresh evidence admitted.

Champken v Champken [2005] EWCA Civ 320

Court of Appeal: Laws and Wall LJJ (28 January 2005)

Appeal against committal order allowed on the basis of fresh evidence admitted.

This was an appeal against an order made in contempt proceedings by which a husband was committed to six months' imprisonment (suspended) for breach of a non-molestation order. The judge at first instance had overwhelmingly believed the wife's account of 14 alleged incidents perpetrated, or encouraged or solicited, by the husband. The husband appealed on the ground that the judge's favourable view of his wife's credibility and his consequent conclusions in relation to most of the allegations were unsustainable or unsafe.

The court heard four points relating to material that was before the judge and considered by him, but found none of those to be adequate reasons for upsetting his judgment. The court also admitted and heard fresh evidence, as follows: on the day after the committal hearing, the wife had made a statement to the police that she had been assaulted and threatened, but that same night she made a further statement to the police admitting that this allegation was entirely false.

Held, allowing the appeal and quashing the order, that the false allegation was extremely similar to some of the allegations relied on and found to be proved by the judge, and that the decision of the judge at first instance was therefore unsafe.
The court acknowledged that the test on appeal for a committal order is whether the decision below was wrong (CPR 1998, r 52.11(3)). Given the particular context and the quasi-criminal nature of committal proceedings, if the decision at first instance was demonstrated to this court's satisfaction to be unsafe because it was based on tainted evidence, then it may readily be categorised as wrong. Otherwise, the court was powerless to remedy the injustice that would arise when a person had been committed to prison on evidence which in truth ought now to be regarded as unreliable.

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