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Court of Appeal gives guidance in committal cases

Mrs Justice Theis sets out checklist of considerations

In L (A Child) [2016] EWCA Civ 173, the Court of Appeal allowed an appeal from a committal order sentencing the appellant to six months' imprisonment for breach of a collection order which had been made over eleven years previously.

In a supporting judgment, Mrs Justice Theis set out a 'useful checklist' (at paragraph 78) for use in cases where the court is hearing a committal application, whether for a contempt in the face of the court or for breach of an order. She said that the court should ensure that the following matters are at the forefront of its mind:

(1) There should be complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is: contempt in the face of the court, or breach of an order.

(2) Prior to the hearing the alleged contempt should be set out clearly in a document or application that complies with FPR rule 37 and which the person accused of contempt has been served with.

(3) If the alleged contempt is founded on breach of a previous court order, the person accused had been served with that order, and that it contained a penal notice in the required form and place in the order.

(4) Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to.

(5) Whether the judge hearing the committal application should do so, or whether it should be heard by another judge.

(6) Whether the person accused of contempt has been advised of the right to remain silent.

(7) If the person accused of contempt chooses to give evidence, whether they have been warned about self-incrimination.

(8) The need to ensure that in order to find the breach proved the evidence must meet the criminal standard of proof, of being sure that the breach is established.

(9) Any committal order made needs to set out what the findings are that establish the contempt of court, which are the foundation of the court's decision regarding any committal order.

For the judgment and a summary by Emily Ward of Broadway House Chambers, click here.