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Justice for Families Ltd v Secretary of State for Justice [2014] EWCA Civ 1477 (14 No
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This is in form a challenge to the refusal by Collins J, sitting in the Administrative Court on 6 November 2013, to issue a writ of habeas corpus. It is in substance a challenge to the decision of Theis J, sitting in the Family Division on 11 October 2013, to commit Margaret Connors to prison for 28 days for contempt of court. Collins J described the application for the writ as being, in the circumstances, "hopeless" and "entirely misconceived". I agree. The challenge to Theis J's decision is equally devoid of merit.
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42. Secondly, Practice Guidance (Committal Proceedings: Open Court) [2013] 1 WLR 1316 spelt out (paragraph 6) that:
"In every case in which a committal order or a suspended committal order is made the judge should take appropriate steps to ensure that … as soon as reasonably practicable:
(a) a transcript is prepared at public expense of the judgment …;
(b) every judgment as referred to in (a) is published on the BAILII website; and
(c) upon payment of any appropriate charge that may be required a copy of any such judgment is made available to any person who requests a copy."
President's Circular: Committals Family Court Practice 2014 2976 spelt out that paragraph 6 of Practice Guidance (Committal Proceedings: Open Court) [2013] 1 WLR 1316 "applies in EVERY case in which a committal order or a suspended committal order is made, WITHOUT EXCEPTION." It went on:
"The principle is very clear and MUST be rigorously followed. NO-ONE is EVER to be committed for contempt of court by a family court or the Court of Protection (whether the sentence is suspended or takes immediate effect) without (a) the name of the contemnor (b) proper details of the contempt(s) and (c) the reasons for the committal being made publically available in a judgment published on the BAILII website."
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It is not the function of the court to assist Mr Hemming in his campaign and beyond recording his submissions there is, in my judgment, little that can appropriately be added to what I have already said. I can, however, properly make the following points:
i) I draw the attention of all judges sitting in family courts to what I have said in paragraph 42 above. In particular, I emphasise that in every case in which a committal order or a suspended committal order is made, the judgment must be transcribed and published on the BAILII website "as soon as reasonably practicable" and, I stress, whether or not anyone has requested this. I suggest that in every case the judge, having given judgment, should immediately direct that a transcript be ordered the same day and prepared on an expedited basis.
ii) In collection (or location) order cases where, as here, there is no committal application as such before the court, the matter should be shown in the public court list as follows:
"FOR HEARING IN OPEN COURT [add, where there has been a remand in custody: in accordance with the order of [name of judge] dated [date]]
Proceedings for the Committal to prison of [full names of the person alleged to be in contempt] who was arrested on [date] in accordance with and for alleged breach of a [location / collection] order made by [name of judge] on [date]."
iii) In cases where it is not possible to publish these details in the public court list in the usual way the day before (for example, because the prisoner is produced at court by the Tipstaff on the morning of the hearing, having been arrested overnight), the following steps should be taken:
a) Where, as in the Royal Courts of Justice, the public court list is prepared and accessible in electronic form, it should be updated with the appropriate entry as soon as the court becomes aware that the matter is coming before it. This can be done very quickly.[3]
b) Notice of the hearing should at the same time be placed outside the door of the court in which the matter is being, or is to be heard, and at whatever central location in the building the various court lists are displayed.
c) The Press Association should be notified by email from the Judicial Office of the fact that the hearing is taking or is shortly due to take place.
iv) This is primarily a matter for others, but consideration might appropriately be given to ensuring that the statistics of the receptions of contemnors into prison accurately record in all cases details of the committing court. There ought not to be any insuperable obstacle to obtaining this information, because in every committal for contempt there will be a warrant identifying the sentencing court.
I add one final observation. I would not for myself want to give any credence to the proposition that a failure to sit in open court or a failure to list the case properly or a failure to publish the judgment, suffices of itself to invalidate an otherwise proper committal for contempt, let alone that such a failure can entitle the contemnor to release on a writ of habeas corpus. Mr Hemming has produced no authority in support of the proposition and in my judgment it is fundamentally unsound.
This is in form a challenge to the refusal by Collins J, sitting in the Administrative Court on 6 November 2013, to issue a writ of habeas corpus. It is in substance a challenge to the decision of Theis J, sitting in the Family Division on 11 October 2013, to commit Margaret Connors to prison for 28 days for contempt of court. Collins J described the application for the writ as being, in the circumstances, "hopeless" and "entirely misconceived". I agree. The challenge to Theis J's decision is equally devoid of merit.
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42. Secondly, Practice Guidance (Committal Proceedings: Open Court) [2013] 1 WLR 1316 spelt out (paragraph 6) that:
"In every case in which a committal order or a suspended committal order is made the judge should take appropriate steps to ensure that … as soon as reasonably practicable:
(a) a transcript is prepared at public expense of the judgment …;
(b) every judgment as referred to in (a) is published on the BAILII website; and
(c) upon payment of any appropriate charge that may be required a copy of any such judgment is made available to any person who requests a copy."
President's Circular: Committals Family Court Practice 2014 2976 spelt out that paragraph 6 of Practice Guidance (Committal Proceedings: Open Court) [2013] 1 WLR 1316 "applies in EVERY case in which a committal order or a suspended committal order is made, WITHOUT EXCEPTION." It went on:
"The principle is very clear and MUST be rigorously followed. NO-ONE is EVER to be committed for contempt of court by a family court or the Court of Protection (whether the sentence is suspended or takes immediate effect) without (a) the name of the contemnor (b) proper details of the contempt(s) and (c) the reasons for the committal being made publically available in a judgment published on the BAILII website."
.................................................. .........
It is not the function of the court to assist Mr Hemming in his campaign and beyond recording his submissions there is, in my judgment, little that can appropriately be added to what I have already said. I can, however, properly make the following points:
i) I draw the attention of all judges sitting in family courts to what I have said in paragraph 42 above. In particular, I emphasise that in every case in which a committal order or a suspended committal order is made, the judgment must be transcribed and published on the BAILII website "as soon as reasonably practicable" and, I stress, whether or not anyone has requested this. I suggest that in every case the judge, having given judgment, should immediately direct that a transcript be ordered the same day and prepared on an expedited basis.
ii) In collection (or location) order cases where, as here, there is no committal application as such before the court, the matter should be shown in the public court list as follows:
"FOR HEARING IN OPEN COURT [add, where there has been a remand in custody: in accordance with the order of [name of judge] dated [date]]
Proceedings for the Committal to prison of [full names of the person alleged to be in contempt] who was arrested on [date] in accordance with and for alleged breach of a [location / collection] order made by [name of judge] on [date]."
iii) In cases where it is not possible to publish these details in the public court list in the usual way the day before (for example, because the prisoner is produced at court by the Tipstaff on the morning of the hearing, having been arrested overnight), the following steps should be taken:
a) Where, as in the Royal Courts of Justice, the public court list is prepared and accessible in electronic form, it should be updated with the appropriate entry as soon as the court becomes aware that the matter is coming before it. This can be done very quickly.[3]
b) Notice of the hearing should at the same time be placed outside the door of the court in which the matter is being, or is to be heard, and at whatever central location in the building the various court lists are displayed.
c) The Press Association should be notified by email from the Judicial Office of the fact that the hearing is taking or is shortly due to take place.
iv) This is primarily a matter for others, but consideration might appropriately be given to ensuring that the statistics of the receptions of contemnors into prison accurately record in all cases details of the committing court. There ought not to be any insuperable obstacle to obtaining this information, because in every committal for contempt there will be a warrant identifying the sentencing court.
I add one final observation. I would not for myself want to give any credence to the proposition that a failure to sit in open court or a failure to list the case properly or a failure to publish the judgment, suffices of itself to invalidate an otherwise proper committal for contempt, let alone that such a failure can entitle the contemnor to release on a writ of habeas corpus. Mr Hemming has produced no authority in support of the proposition and in my judgment it is fundamentally unsound.
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