Committal proceedingsEnforcementCommittal proceedings:bringing proceedingsCommittal proceedings:applicationCommittal proceedingsEnforcementCommittal proceedings:bringing proceedingsCommittal proceedingsEnforcementCommittal proceedings:bringing proceedingsCommittal proceedingsEnforcementCommittal proceedings:crucial featuresCommittal proceedings:bringing proceedingsCommittal proceedingsEnforcementCommittal proceedings:vagueness of evidenceCommittal proceedings:hearing:evidenceCommittal proceedings:bringing proceedingsCommittal proceedingsEnforcementCommittal proceedings:hearing:publicCommittal proceedings:hearing:privateCommittal proceedings:hearingCommittal proceedingsPractice Guidance:Committal for Contempt of Court (March 2015) Lord Chief Justice’s Practice Direction: Committal for Contempt of CourtEnforcementCommittal proceedings:hearingCommittal proceedingsEnforcementCommittal proceedings:prison, committal toCommittal proceedings:hearingCommittal proceedings
Bringing proceedings
17.12The COPR contains detailed provisions
1COPR rr185–191. (accompanied by a practice direction
2PD 21A.) relating to the procedure that applies when an application is made to a Court of Protection judge to commit a person for contempt of court. Such an application can be made in a range of circumstances, including where the person has: a) refused or neglected to do an act required by a judgment or an order within the specified time; b) disobeyed a judgment or order requiring them to abstain from doing a specific act; or c) breached the terms of an undertaking given to the court.
3PD 21A para 6. With one exception, no permission is required to bring such an application. That exception is where the application is brought on the basis that made or caused to be made a false statement in a document verified by a statement of truth (such as a witness statement). Such an application can only be brought by the Attorney-General and with the permission of the court.
4COPR r14(2)(a).17.13The provisions of the COPR do not govern the power to commit a contemnor to prison which, as discussed at para 17.5 above, is derived (via MCA 2005 s47(1)) from the High Court’s common law powers in this regard. Rather, they govern the procedure for such applications.
17.14The provisions of the COPR rr185–191 are largely self-explanatory, requiring as they do the filing of an application notice on a COP9, accompanied (unusually) by an affidavit containing specific details set out in PD 21A, most importantly of the alleged act(s) of contempt.
5COPR r186(1).17.15In
Re Whiting,
6[2013] EWHC B27 (Fam), [2014] COPLR 107. an application for committal for alleged breaches of orders made by the Court of Protection, Hayden J emphasised some crucial features of the committal process:
(1)the procedure has an essentially criminal law complexion. That is to say, contempt of court must be proved to the criminal standard, i.e. so that the judge is sure. The burden of proof rests throughout on the applicant (see: Mubarak v Mubarak [2001] 1 FLR 698);
(2)contempt of court involves a deliberate contumelious disobedience to the court (see: Re A (A Child) [2008] EWCA Civ 1138);
(3)it is not enough to suspect recalcitrance; it must be proved (see: London Borough of Southwark v B [1993] 2 FLR 559);
(4)committal is not the automatic consequence of a contempt, though the options before the court are limited – for example: (a) do nothing; (b) adjourn where appropriate; (c) levy a fine; (d) sequester assets; (e) where relevant, make orders under the Mental Health Act (see: Jamie Malcolm Hale v Rachel Tanner [2000] 2 FLR 879);
(5)the objectives of the application are usually dual, ie to punish for the breach and to ensure future compliance;
(6)bearing in mind the dual purpose of many committal proceedings, they should be brought expeditiously, whilst primary evidence is available and the incidents are fresh in the mind of the relevant witness. This is particularly important in the Court of Protection where there may be reliance on a vulnerable witness and where capacity might have to be assessed.
(7)It follows, therefore, that where injunctive orders are made, they should be clear, un-ambivalent and drafted with care. In my judgment, simplicity should be the guide.
7See also the comments of Munby LJ (as he then was) in Re X and Y (children) [2012] EWCA Civ 1500, [2013] Fam Law 148 at paras 61–63. Similarly, where breaches are alleged, they should be particularised with care, both so that the alleged contemnor knows exactly what, where, when and how it is contended that he is in breach, so as to be able to marshal his defence, but also to help the applicant focus on what evidence is likely to be required to establish the breach to the requisite standard of proof.
8Para 12. 17.16In the same case, and criticising the vagueness of the evidence advanced by the local authority which brought the application for committal for contempt, Hayden J, further, emphasised that:
What is required … is an intellectually rigorous relationship between the lawyers and the social workers in every aspect of the Court of Protection, of course, but particularly on an application of this kind. The lawyers preparing the case must realise that establishing breaches to the criminal standard of proof requires forensic precision and the careful identification of evidence to support each of the particulars of the breach … The process requires the lawyer and the social worker to work closely together to look at the order, to identify the breach and to marshal the material as if proving the constituent parts on a count on an indictment. Nothing less will do where the liberty of the individual is at stake.
9Para 15.The hearing
17.17COPR r188(2) makes clear that, even if the underlying proceedings are (or were) taking place in private, applications for committal are to be heard in public unless the court directs otherwise. The position is also confirmed by the Lord Chief Justice’s Practice Direction: Committal for Contempt of Court – Open Court issued on 26 March 2015, which should be read also with subsequent clarificatory guidance issued.
10Available at www.judiciary.gov.uk/publications/practice-guidance-committal-for-contempt-of-court-open-court/ That Practice Direction and Guidance gives details as to the steps that must be taken to ensure that the hearing is properly publicised, the (exceptional) circumstances under which a committal hearing can take place in private, and also as the need for publication of judgments. To emphasise the seriousness of the hearing, they will almost invariably take place with Counsel robed.
17.18If a person wishes at the hearing of the committal application to give oral evidence, they must be allowed to do so,
11COPR r187. as well as to obtain legal advice if they are not represented.
12See, by analogy, Hammerton v Hammerton [2007] EWCA Civ 248 at para 52 per Wall LJ.17.19The court, when determining an application for contempt, may, in an appropriate case, commit the person to prison. COPR r193, however, also makes clear that the powers granted to the court under MCA 2005 s47 in respect of the punishment of contempt are not limited solely to committal to prison, but that the court can also require a person guilty of contempt of court to pay a fine or give security for his good behaviour: see also the passages from Re Whiting set out at para 17.15.