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CJ v Flintshire CC [2010] EWCA Civ 393

Appeal by father, who was imprisoned for breaches of an injunction in care proceedings not to contact any of his daughters who were still minors, against refusal to order immediate discharge from prison . Appeal dismissed.

The appellant, a father of seven daughters, now aged from 24 to 2 , had pleaded guilty to one act of incest with the eldest when she was 18. In subsequent care proceedings, in 2005, the judge found that he had abused the eldest daughter since she was seven and placed an injunction on the father having contact with the three children who remained minors, unless arranged by the local authority. In 2008 a suspended committal order was made after it was found that he had breached the order and on 17 November 2009, it was further found that he had regularly breached the order including trips by the fourth daughter to stay with him in his caravan. The judge committed the appellant to 21 months for contempt of court. The father did not attend that hearing, but was arrested and imprisoned on the same day. Two days later he signed a notice seeking to purge his contempt, undertaking to comply with the injunction in the future and seeking early discharge.  That was refused and the appellant made this application.

Wilson LJ, giving the lead judgment, reviews the relevant case law and then identifies eight questions that should "go into the melting pot" when considering an early discharge, the answers to which should form the basis of the conclusion "once they have melted together". These include:

"Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt?

Would the interest of the State in upholding the rule of law be significantly prejudiced by early discharge?

How genuine is the contemnor's expression of contrition?"

He then goes on to find that there was no evidence that would entitle the court to displace the judge's conclusion

"that the application was not made bona fide; that the appellant lacked any firm resolve not to commit a further breach of the injunction; that therefore the risk of a further breach and thus of sexual abuse of the minor children remained; and that accordingly early discharge would accelerate their exposure to it."

In a short supplementary judgment Sedley LJ considers the appellant's submission that the sentence could be suspended. The Court of Appeal in Harris had already ruled that this is not an option but he suggests a rule-change allowing partial suspensions which he considers might be useful in the future.

Case No: B4/2010/0727
Neutral Citation Number: [2010] EWCA Civ 393
HHJ Farmer QC, sitting as a judge of the High Court
Lower Court No: RL09C00163
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/04/2010

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CJ (Appellant)

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Mr Anthony Scrivener QC and Mr James Gatenby (instructed by Hogans, Rainhill, Merseyside) appeared for the Appellant.
Miss Gillian Irving QC and Mr Michael Sellars (instructed by the Solicitor to the Council) appeared for the Respondents.

Hearing date: 14 April 2010

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Lord Justice Wilson:

1. The appellant is a contemnor, presently committed to prison; and he appeals against the refusal of HH Judge Farmer QC on 4 March 2010 to order his early and indeed immediate discharge from prison. The judge was sitting as a judge of the High Court, Family Division, Rhyl District Registry, albeit in Cardiff.

2. On 17 November 2009 the same judge had ordered that the appellant be committed to prison for 21 months for contempt of court. Of those 21 months, three months represented the activation of a sentence of committal which the judge had passed on the appellant on 18 April 2008 on a suspended basis for breach of an injunction made by HHJ Davies on 15 June 2005; and 18 months represented a sentence for various subsequent breaches of the same injunction which HHJ Farmer found proved.

3. When a person committed to prison for contempt of court has served one half of the term for which he was committed, he must be discharged from prison unconditionally: s.258(2) of the Criminal Justice Act 2003. Unless discharged earlier by order of the court, the appellant will be discharged pursuant to the subsection on 1 October 2010.

4. It is common ground that the appellant does not require permission to appeal to this court from the judge's refusal to order his earlier discharge. Although it is hard to describe the appeal as being against "a committal order" within the meaning of CPR 52.3(1)(a)(i), s.13(1) of the Administration of Justice Act 1960 provides that (i.e. without permission) an appeal shall lie "from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court". Within that wider, statutory, rubric, the current appeal clearly falls; and, for that matter, it is brought within the exception to the need for permission set out in paragraph 4.2 of the Practice Direction supplementary to Part 52.

5. Even when, by virtue of s.14(1) of the Contempt of Court Act 1981, it became no longer possible to commit a contemnor to prison on an indefinite basis, the inherent power of the court to order a prisoner's discharge from prison on a date earlier than is dictated by the necessarily fixed term of his sentence was expressly recognised by words placed in parenthesis in the subsection; and it is also recognised by RSC Order 52 Rule 8(1), which is set out in Schedule 1 to the CPR and applies by virtue of Part 50 thereof.

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.

7. The judge's committal order was made in family proceedings brought by Flintshire Borough Council ("the local authority") in relation to the four younger of the appellant's seven children. All of them were born to the same mother, whom the appellant married but from whom he is apparently now estranged. The children are all girls. The oldest daughter is now aged 24; the second is now aged 23; the third is now aged 22; the fourth is now aged 18; the fifth is now aged 14; the sixth is now aged five; and the seventh is now aged nearly two. The three minor children are subject to care orders in favour of the local authority and are placed in foster care; but the mother is in the course of applying for discharge of the care orders.

8. At the heart of the case is the fact that the appellant presents a grave risk of sexual abuse to his children. In 2004, in the Chester Crown Court, he pleaded guilty to one act of unlawful sexual intercourse with the oldest daughter when she was aged 18 and he received a sentence of six months' imprisonment.

9. In care proceedings relating to the minor children which were thereupon launched by the local authority HHJ Davies found, by a judgment dated 6 June 2005, that the appellant had not only committed the act of incest with the oldest daughter, when no longer a minor, of which he had been convicted but had also sexually abused her on a regular basis from about 1992 onwards, i.e. from when she was aged only about seven. On 15 June 2005 HHJ Davies, sitting as a High Court judge, issued injunctions, one of which prohibited the appellant from having contact with any of the children who then remained minors, namely the fourth, fifth and sixth daughters, save such as the local authority might arrange. The seventh daughter was, of course, not then born.

10. The orders for committal against the appellant arise out of his breaches of the injunction dated 15 June 2005. The suspended committal order dated 18 April 2008 was made upon a finding that, otherwise than as arranged by the local authority, the father had had contact with the fourth daughter in February 2008. At the hearing on 17 November 2009 the judge found proved further breaches of the injunction dated 15 June 2005, namely (and all otherwise than as arranged by the local authority) that the appellant had had contact with the fourth daughter in February/March 2009, i.e. when she was aged 17, by allowing her to stay with him for a week in a caravan; that on eight other occasions between October 2008 and April 2009 he had allowed her to stay with him in the caravan; that in December 2008 he had had contact with the fifth daughter, then aged 13, and with the sixth daughter, then aged 4, at the home of the second daughter; and that on another occasion prior to 11 March 2009 he had also had contact there with the fifth daughter.

11. The appellant admits that he was given notice of the hearing on 17 November 2009 and that he failed to attend it.

12. It seems that, notwithstanding his history of transient living or, as the local authority describe it, of living below the radar, the appellant was arrested and imprisoned on the day when the committal order was made. On 19 November, i.e. only two days later, he signed a notice to the effect that he wished to purge his contempt and be released from prison; that he apologised to the court for breaking the injunction; and that he would undertake to comply with it in future. At the near-insistence of the judge, the appellant secured publicly funded legal advice and representation in respect of his application. At an interim hearing in February 2010 the local authority readily acceded to the judge's invitation to appear at the substantive hearing and, in effect, to assist the court in testing the case for discharge to be put forward on behalf of the appellant; and, at the judge's direction, the local authority filed a statement, by Mrs Foulkes, the children's allocated social worker, in that regard. At the hearing the appellant gave oral evidence, as did Mrs Foulkes.

13. In the judgment by which he refused the appellant's application for early discharge, the judge, in reciting the history, recorded that the appellant continued to deny the findings of sexual abuse of the oldest child which HHJ Davies had made in 2005 save for the one act of incest of which he had been convicted. The judge noted, however, that the appellant acknowledged all the breaches of the injunction which on 17 November 2009 he, the judge, had, in the appellant's absence, found to be established. The judge recorded the concession of the appellant that he knew that he was thereby breaking the injunction and had done so because of his fondness for the children with whom he had had contact. The judge went on to survey the only realistic proposal which the appellant made for his accommodation in the event of early discharge, namely that he should return to the home in North Wales of his girlfriend who had been present on some of the occasions when he had had unauthorised contact with the children and who, as the appellant conceded, had been aware that he was thereby breaking the injunction. The judge proceeded to record that the appellant accepted that he constituted a danger to children; that, in the pending care proceedings, he intended to seek an order, on some basis or other, for his contact with them; and that he proposed to seek help with a view to altering the court's perception of him as someone who continued to pose a risk of sexual abuse towards his children. The judge thereupon said:

"Both counsel helpfully addressed me on the focus of the wide discretion which I have in this case and … agreed that [it] should be the need to protect the children and consideration of whether the applicant's contrition at this stage was genuine. I am unable to accept that it is either genuine or realistic. It seems to me to be focused entirely on his own needs. It results from his desire, as he puts it, to re-establish contact with and see his children. He has not focused upon what are the prerequisites for re-establishing such contact. They are the necessity of treatment, the necessity of seeking help, and the necessity of facing up realistically to the danger that he poses. When he was pressed on this matter, he eventually indicated that he was a sexual risk, but it seems to me that … he is still minimising the risk that he poses to the children. He is still displaying those aspects of deviant behaviour and dishonesty about himself and others which were noted [at an earlier hearing by a consultant clinical psychologist] and has not faced up to the requirements that the Lucy Faithfull Foundation indicated as necessary as long as five years ago. He indicated that up until now he had not taken any active steps to seek help. It seems to me that a person who is genuinely contrite and genuinely sorry for what he had done would have taken steps before now to seek such help, steps over and above all that the applicant was able to tell me, namely that he had made some enquiries at the prison and had had one conversation with a social worker."

14. The judge then summarised his reasons for refusing the application in terms which, in due course, found their way into a recital to his order, namely that (a) the appellant's contrition was not genuine, (b) the goal of protection could not be secured by his discharge at that stage and (c) refusal of the application was both necessary and proportionate. In judgment the judge accepted that the appellant's road to change would be long and that initially it would comprise assessment of suitability for therapy; and he added that, while the appellant could not be criticised for not having reached the end of the road, he could be criticised for not having embarked upon it.

15. Mr Scrivener QC, who now appears on behalf of the appellant, makes four points. With respect to him, I consider that the first three of them can be addressed very shortly.

16. First Mr Scrivener complains that the statement filed by Mrs Foulkes on behalf of the local authority represented an attempted usurpation of the judge's role in determining whether the apologies and assurances tendered by the appellant to the judge were genuine. Although, as I have indicated, the local authority had been directed to file a statement in relation to the genuineness or otherwise of the appellant's protestations, Miss Irving QC, who now appears on behalf of the local authority, concedes that the content of the statement strays inappropriately from evidence and submission to purported judgment upon the appellant. There is, however, nothing in the judge's judgment indicative of any adoption on his part of the purported judgment made by the local authority in that regard as opposed to reasons for reaching a judgment of his own.

17. Second Mr Scrivener complains that there was an undue focus on the part of the judge upon the practical proposals which, with whatever degree of difficulty, the appellant was making for his life in the community in the event of his early discharge. At first Mr Scrivener even contended that the judge was not entitled to consider such matters; but, realistically, he soon withdrew that contention. In my view the practical proposals, such as they were, were of great relevance to the risk of yet further illicit contact on the part of the father with the minor children. Had he, for example, proposed to settle far away from their foster homes, the risk of further breach would surely be lessened. Were he, however, as he did propose, to return to his girlfriend, who lives in the vicinity of the foster homes and who had been a knowing accomplice in his past breaches of the injunction, there was – at any rate without good evidence from her - little ground for confidence.

18. Third Mr Scrivener complains that the judge was plainly wrong in refusing to accept the genuineness of the appellant's purported contrition and assurances. But, although he invited us briefly to consider the transcript of the appellant's oral evidence to the judge, he demonstrated nothing by reference to which we could set aside the judge's adverse conclusion as plainly wrong.

19. Fourth Mr Scrivener complains that the judge was guilty of an excessive concentration upon the appellant's historical sexual abuse of the oldest daughter and upon his failure to take steps to participate in some therapeutic programme which might ultimately lead the court to consider that he no longer presented a sexual risk to the minor children. Yes, says Mr Scrivener, it would have been reasonable for the judge to have concentrated upon the risk of further breaches of the injunction dated 6 June 2005, namely the risk of unauthorised contact. But the judge, so he says, concentrated upon a matter which lay beyond the risk of unauthorised contact, namely the need for the appellant to try to move to a situation in which he might be granted authorised contact. It seems to me however that one has only to cast Mr Scrivener's criticism in that way in order to discern a link between the two matters. The injunction dated 6 June 2005 was the court's reaction to the risk then presented by the appellant of sexual abuse towards the minor children. In his reasoning the judge was seeking to discern whether there were any seeds of an answer to the central problem; and, of course, were seeds to grow into a conclusion that, whether supervised or not, a degree of contact might be permitted by the court order between the appellant and the minor children, such would substantially lessen the risk of unauthorised contact. I do not accept that the judge's consideration of the appellant's failure to begin to confront the central problem represented an impermissible line of enquiry; and, although Mr Scrivener criticises the suggestion as unrealistic, I do not see that, had the appellant's instructions so authorised them, his solicitors could not have initiated enquiries on his behalf, perhaps with the professionals who had previously given evidence and to whom the judge referred, about his ability to access assessment for possible treatment. Nor should we forget that, when he came to summarise his reasons, the judge referred, on any view appropriately, to the "goal of protection" (of the children by means of the injunction) rather than to the goal of therapy for the appellant.

20. In Enfield LBC v. Mahoney [1983] 2 All ER 901 May LJ observed at 907j that the reasons for a committal to custody for a civil contempt were twofold, 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. He suggested that, on application for early discharge, the first question for the court should be whether the contemnor has been punished enough for the contempt. If not, then he would probably fail to secure discharge. But if so, the only remaining justification for continuing to keep him in custody was the possibly coercive effect of continuing to do so. That was, however, another case in which the contemnor had failed to comply with a mandatory order, namely to deliver up to Enfield an ancient cross, known as the Glastonbury Cross, which he had found on their land. So the case falls into what, in Lightfoot v. Lightfoot [1989] 1 FLR 414, Lord Donaldson MR, at 417B, later called "a second category which I might describe as a coercive sentence where the contemnor has been ordered to do something and is refusing to do it". Thus the reference of May LJ in the Enfield case to the "coercive" effect, namely whether, if he were to continue to be imprisoned, the contemnor would deliver up the cross, has to be adapted to the type of case of which the present is an example. So this part of the enquiry should be into the "protective" effect of continuing to keep the contemnor in prison and thus into whether an order for early discharge would be likely to lead to further breaches of the injunction and thus to compromise the safety of those for whose protection it was devised; cf Longhurst Homes Ltd v. Killen [2008] EWCA Civ 402, per Hughes LJ at [14].

21. With the advantage of more time for reflection than was vouchsafed to the judge, I consider that, had I been hearing the appellant's application for early discharge, I might have asked myself eight, somewhat overlapping, questions. In case they prove to be of any value to other judges confronted with applications for early discharge in similar circumstances, I set them out as follows:

(i) Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt?

(ii) Would the interest of the State in upholding the rule of law be significantly prejudiced by early discharge?

(iii) How genuine is the contemnor's expression of contrition?

(iv) Has he done all that he reasonably can to demonstrate a resolve and an ability not to commit a further breach if discharged early?

(v) In particular has he done all that he reasonably can (bearing in mind the difficulties of his so doing while in prison) in order to construct for himself proposed living and other practical arrangements in the event of early discharge in such a way as to minimise the risk of his committing a further breach?

(vi) Does he make any specific proposal to augment the protection against any further breach of those whom the order which he breached was designed to protect?

(vii) What is the length of time which he has served in prison, including its relation to (a) the full term imposed upon him and (b) the term which he will otherwise be required to serve prior to release pursuant to s.258(2) of the Criminal Justice Act 2003?

(viii) Are there any special factors which impinge upon the exercise of the discretion in one way or the other?

22. I am clear that the success of an application for an order for early discharge does not depend on favourable answers to all the questions. Nevertheless the first is a general question which, as May LJ suggested, probably needs an affirmative answer before early discharge should be ordered. The second will surely require a negative answer. An affirmative answer to the third will usually (although not always: see, for example, the Enfield case, cited above) be necessary but may not be sufficient. As Lord Clyde, the Lord President, said in the Scottish Court of Session in Johnson v. Grant [1923] SC 789, at 791:

"The mere circumstance that he presents a belated expression of contrition has, with regard to the public aspect of the matter, almost no importance at all. There is ample opportunity … for repentance before sentence is pronounced. The appeal is simply to the clemency of the court … and the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to the court and saying, "I realise my transgression and apologise for it" – however sincerely such an apology may be made."

I suggest that, subject to what I have said above, answers to the questions go into the melting pot; and out of it, once they have melted together, comes the conclusion.

23. For obvious reasons, the judge did not approach the enquiry precisely in the above way. But in substance he did do so. He was entitled to remind himself, in particular, that the appellant had been sentenced for numerous deliberate breaches of the injunction, committed at a time when he had already been found to have broken it and when at that time he had been warned in stark terms about the consequences of further breach; that the appellant had failed even to attend the hearing of the application for his committal; that his application for early discharge was made within two days of execution of the order for committal; and that he made no concrete proposal whatever which complemented his professed intention not to commit a further breach. Even evidence from the girlfriend to whom he proposed to return might, if honestly given, have helped to persuade the judge of the genuine character of the appellant's disavowal of the likelihood of further breach and/or of her own belated understanding of the need to try to prevent breach.

24. It was the judge, not this court, which heard the appellant's evidence; and in my view there is no material whatever which would entitle us to displace his conclusions that the application was not made bona fide; that the appellant lacked any firm resolve not to commit a further breach of the injunction; that therefore the risk of a further breach and thus of sexual abuse of the minor children remained; and that accordingly early discharge would accelerate their exposure to it.

25. I would dismiss the appeal.

Lord Justice Aikens:
26. I agree, and also with the additional remarks to be made by Sedley LJ. An order for committal for a civil contempt of court may be made in many different circumstances. In the present case, the order of HHJ Davies of 15 June 2005 prohibited the appellant from having contact with any of his children who then remained minors, namely the fourth, fifth and sixth daughters, save such as the local authority might arrange. It is a continuing prohibition which was breached by the appellant on numerous occasions, which Wilson LJ has detailed.  A committal order was more than justified and for two reasons. First, because there should be punishment by a term of imprisonment for the flagrant disobedience to the court's order. But, secondly and think most importantly in this type of case, because the threat of further breaches of the injunction by the appellant was regarded as being sufficiently great that the minor children could only be properly protected from the danger of abuse by their father by the imposition of a period of imprisonment.

27. It is against that background that the application for "early discharge" (the actual wording in section 14(1) of the Contempt of Court Act 1981) has to be considered. The present type of case is very different from that of Enfield BC v Mahoney [1983] 1 WLR 749, to which Wilson LJ has referred, where the aim of the committal was, first, punishment for the failure to obey the mandatory order of the court and, secondly, to attempt to enforce the "coercive effect" of the order:  see page 755G-H per Watkins LJ and 757 H per May LJ.  The court held, on the facts, that the first element had been fulfilled by the time of the hearing, short of the original term of imprisonment imposed.    It also held that there was no point in imprisonment as a means of coercing Mr Mahoney to yield up the Glastonbury Cross as ordered.  Therefore, despite the fact that Mr Mahoney had failed to comply with the court's mandatory injunction, the court ordered his release. 

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? The matters that the court will consider will depend on the type of case in hand.  In the present type of case, the principal enquiry of the court must be to see whether an early release would have a significant effect on the protection of the children from the danger which gave rise to the injunction in the first place. The court must make a judgment on that, taking all the circumstances of the particular case into account.  The matters at items (iv), (v), (vi) and (viii) of Wilson LJ's list of questions are likely to be especially important. But, like Wilson LJ, I would not wish to be prescriptive of the issues to be considered.

30. One final word.   Article 5 of the ECHR stipulates that "Everyone has the right to liberty and security of the person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law".  In Article 5(1)(b), one exception given is "the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law". Committal for civil contempt plainly comes within Article 5(1)(b). The procedure must be prescribed by law, which it is, by virtue of section 14 of the Contempt of Court Act 1981 and the Rules of Court. But, it seems to me that when a court is considering whether to commit for contempt in the first place and also when a court is asked to make an order for early release, it must consider the extent to which an order imprisoning a person for contempt is necessary and is proportionate in the interests of the prevention of disorder or crime and to uphold the rule of law and the lawful orders of the court.

Lord Justice Sedley:
31. I agree that there is no ground on which to interfere with Judge Farmer's decision that it was not appropriate to discharge the appellant before the sentence imposed on him for contempt had run its course.

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.

33. Yet the power to relieve a contemnor post-sentence plainly exists in both classes of case. Mr Scrivener came before this court accordingly with the practical suggestion that we should suspend the remainder of the term. The protective value of an imminent return to gaol would, he credibly suggested, be more real as protection for his minor children than contrition suddenly experienced and expressed by the appellant when the prison gates closed behind him.

34. But this court held in Harris (ante, §21) that partial suspension of sentences of imprisonment for contempt during their currency was not an available option. The reason given by Thorpe LJ was that, while this might be "a useful refinement", the gain would be outweighed by the complications it brought both for the contemnor (in deciding whether or not to apply) and for the justice system (in multiplying litigation).

35. Notwithstanding these reasons, this case has shown, I respectfully suggest, why consideration might usefully be given to a rule-change permitting partial suspension of sentences for contempt in appropriate cases. But that lies, if anywhere, in the future. For the present there is no ground on which we can interfere with the sentence imposed by Judge Farmer QC.

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.