England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(Her Honour Judge Critchlow)

		The Royal Courts of Justice Strand London WC2 Thursday, 18 September 2002

Wednesday 18 September 2002

1. LORD JUSTICE WARD: This is an appeal by Mr Stuart Horgan against the order made by His Honour Judge Critchlow in the Reading County Court on 24 May, committing the appellant to prison for a total period of six months for contempt of orders made by District Judge Gatter on 20 March 2002. The committal order was suspended until 1 February 2002 on terms that Mr Horgan comply with the order that he should not use or threaten violence against his wife (the applicant for the injunction) or intimidate, harass or pester her or encourage anyone else to do so. The facts giving rise to the injunction are depressingly familiar to those who practice in the family courts. What happened thereafter is, I am afraid, simply very depressing indeed for those of us who have had to hear the catalogue of accidents that have occurred.
2. The background is this. The parties were married in August 1999 and have a daughter who is about 14 months old. The wife has another child aged five and a half, who is a child by a previous relationship. Mrs Horgan alleged such a history of violence that she could not recall the precise details of each assault by her husband on her during their short marriage. His violent disposition was confirmed, she said, by his convictions for assault and in relation to firearms.
3. He was arrested for an assault on her at the end of January, charged and granted bail to appear before the magistrates on condition that he stayed away from her. There were subsequent acts of damage to the matrimonial home and her car, as to which there was no direct evidence of the husband's complicity although the wife suspected that these things were done by him. He was, however, arrested for throwing a brick through the window of her home, fortunately at a time when she was staying with her mother. A week later the matrimonial home was set on fire but there was no evidence to identify the arsonist. Mrs Horgan said in her statement of truth supporting her application for an injunction:

"I am terrified of the Respondent and I believe he is capable of doing me serious harm, and indeed killing me."

4. District Judge Gatter granted her an injunction without notice to the respondent, restraining him in the usual terms until 20 March 2003 from using or threatening violence to his wife and from intimidating, harassing or pestering her. He was also forbidden from entering or attempting to enter the property where she was living with her mother, or even going, as the order was drawn, within five miles of that property. That appears to have been a mistake by those who drew the order, though it was not corrected: the judge intended to exclude him from an area within 500 yards of the home. That order was made returnable on 9 May. Nevertheless, the power of arrest attaching to it and the injunction itself were ordered to remain effective for a whole year, expiring, as I have said, on 20 March 2003.
5. Although that order is not the subject of the appeal, I feel bound to express that I am a little disconcerted by some aspects of the procedure that were adopted on this occasion. I am troubled by these matters in particular. First, accepting as I do that it was just and convenient to make an order without notice to the respondent, section 45(3) of the Family Law Act 1996 nevertheless requires the court to afford the respondent the opportunity to make representations relating to the order "as soon as just and convenient at a full hearing". It is disappointing to note that the half-hour appointment for that further hearing could not be fixed earlier than seven weeks after the matter first came before the court. An important order with a power of arrest ordinarily deserves -- indeed demands -- earlier reconsideration than that, and I am surprised that the matter was not brought back to the court within no more than 14 days. If it could not be effective within that time (if, for example, the respondent had not had opportunity to obtain proper legal representation) the matter might need to be adjourned again. But to leave things in the air for seven weeks without notice to a respondent that he had the right to apply to vary or discharge the order seems to me to be wrong.
6. The second concern is the fact that whereas the court is given the discretion to direct that the power of arrest may be attached to an order made without notice, and/or that the power of arrest may have effect for a shorter period than the initial order, those matters may not have been fully borne in mind by the district judge. Given the ease with which a power of arrest may be invoked by an applicant, the court should normally be wary about making an order of this kind for longer than is necessary to give the applicant adequate and necessary protection, but also to give the respondent the opportunity to be heard to oppose it. In this case, the order for the injunction and the effectiveness of the power of arrest were directed to endure for the whole year. The application was, however, ordered to be returned to the court within the seven-week period. A better practice, in my judgment, would be to limit the time for the injunction and the power of arrest so that they remained effective for no longer than the conclusion of the return hearing. Those dates ought ordinarily to coincide.
7. Be that as it may, the order was duly served by a process server on 25 March, the process server saying in an affidavit before the court that he pointed out the conditions of the order, the penal notice and the power of arrest. I have no doubt that he did. There is no reason to suppose that the respondent did not understand the written word or the spoken explanation of it, but that is no substitute for a party in the throes of an emotional separation hearing the effect of the order from the judge himself or herself. It helps an understanding of the order for the respondent to hear a judge say, as I now say to the respondent in court, "No more of this nonsense and beware, you will go to prison if you disobey this order." This is another reason why efforts should be made to have the respondent present on a return date. If he chooses not to attend then of course the court must deal with the application in his absence.
8. On 9 April Mrs Horgan began to receive a series of abusive and threatening telephone calls from her husband, culminating in a conversation on 22 April which she took to be his telling her that he had a gun and was going to use it on her. She invoked the power of arrest and he was arrested the next day, Tuesday 23 April. So far this is part of the depressing story with which we are all familiar.
9. What happened then is, however, of much greater concern to me. The legal framework for the procedure to be followed subsequent to an arrest under a power of arrest is that the arrested person be brought before the court within 24 hours of his arrest. Mr Horgan was. He appeared on the next day, 24 April, before District Judge Henson. The court is then given the power to remand in custody, but by virtue of paragraph 2(5) of schedule 5 to the 1996 Act, it is provided that:

"Subject to paragraph 3, the court shall not remand a person under this paragraph for a period exceeding 8 clear days."

10. The order as drawn on that occasion, 24 April, was in these terms, that:

"The Court Directs the respondent be remanded in custody to [Her Majesty's Prison in] BULLINGDON until the next hearing and that the respondent be produced before the court at the next hearing."

11. The order as drawn then stated that the next hearing was to be on 3 May. A simple counting on one's fingers will establish that 3 May was longer than eight clear days from the date the court was dealing with the matter, 24 April. The order as drawn was therefore an unlawful order, exceeding the power of the court to make it. It was a clear breach of paragraph 2(5) of the fifth schedule. Moreover, it was not made "in accordance with the procedure prescribed by law" and it was thus a breach of the appellant's right to liberty guaranteed by Article 5(1) of the European Convention on Human Rights.
12. We were told by Mr Calway (who appears for the wife and for whose submissions, like those of Mr Brett, we are grateful) that District Judge Henson in fact said, according to the recollection of the solicitors who appeared before her on that occasion, that the appellant should be remanded for eight days. If that is right, then someone has drawn an order which did not give effect to what she had said. How that came about is something of a mystery, but it is deeply troubling that an administrative officer perfected an order inconsistent with the judgment and which (a) was unlawful on its face and (b) denied this man his fundamental human right. It is a matter which the Reading County Court ought to examine and I will direct that a copy of this judgment be made available to the Chief Clerk of Reading so that the county court judges and district judges involved in this case may have an opportunity to study it and to do what is necessary to correct any imperfections which may appear to exist in the procedures of the Reading County Court.
13. The second worrying aspect of District Judge Henson's order is that she remanded the appellant in custody and directed him to be produced before her court, the Reading County Court, at the next hearing. That would ordinarily be a perfectly proper and good order to make, until one learns of the difficulties apparently involved in carrying it out. The next hearing was fixed, as I have said, for 3 May. His Honour Judge McIntyre presided in the Reading County Court on that day. The wife was represented by counsel but Mr Horgan did not attend. We were told by Mr Calway, on the wife's behalf, that the enquiries made at Reading County Court that day led to it being concluded quite erroneously that Mr Horgan had been presented to the Oxford court, not the Reading court. Judge McIntyre therefore adjourned the matter until the following week, Friday 10 May. In fact Mr Horgan tells us through Mr Brett that he was languishing in the cells of the Reading Crown Court. This is no more than a five-minute walk from the county court. He, no doubt, sat in his lonely cell (whether with a view of the tented blue sky or not, I do not know) but no-one appears to have had the slightest concern, as he would see it, that he should be produced before a judge. He simply was put back in the van and returned to Bullingdon.
14. The reason for this scandalous mistake appears to be this. Those charged with the responsibility for conveying prisoners (in this case Premier Security) took him to the Reading Crown Court because, it may be as we are told, that their contract is to deliver prisoners to the Crown Court and not to deliver them five minutes down the road to the county court. It seems to me to be a scandal that the authorities are unable to do that which the court had ordered the governor to do as a term of the remand, ie for the prison to produce the prisoner to the court which made the order. Whose responsibility for the mistake it was I do not know, but the governor of Bullingdon was required as a term of the remand to produce his prisoner to the county court and he and/or Premier Security failed to do that. It is the most lamentable state of affairs.
15. Judge McIntyre, apparently believing that the husband was in Oxford, did not, from what we have heard (but we may not have the full story and so one must be careful about one's criticisms of this aspect of the case), demand of Bullingdon that they get the prisoner to his court, the Reading County Court, as directed. Even if it was thought he was in Oxford, it is not beyond the wit of man to convey a prisoner from Oxford to Reading during the ordinary course of a day's sitting of the court. I do not know why the court did not wait to find out for certain what had hapened and why any error could not be rectified. Judge McIntyre, on the contrary, made an order which I will now recite in full with the emphasis as appears on the order (page A15):

"Upon hearing Counsel for Mrs Victoria Louisa Horgan and upon the non attendance of Mr Stuart Sean Horgan [having not been produced by HM Bullingdon as of the time of the making of this order - 11:00am - and the Respondent having already served a period of 10 days imprisonment as of the date of the making of this Order]

Important notice to the Respondent Mr Stuart Sean Horgan

This order gives you instructions which you, must follow. You should read it carefully. If you do not understand anything in this order you should go to a solicitor, Legal Advice Centre or Citizens Advice Bureau. You have a right to ask the court to change or cancel the order but you must obey it unless the court does change or cancel it.

You must obey the instructions contained in this order. If you do not, you will be guilty of contempt of court, and may be sent to prison.

1. Adjourn the hearing of the Applicant's Notice to Show Good Reason why an Order for Your Committal to Prison should not be made to: Friday 10th May 2002 @ 10:am @ Reading Crown Court with a time estimate of 2 hours.

2. The Respondent be remanded in custody at HM Bullingdon until then when he be duly presented by the prison services to attend the adjourned hearing shown in paragraph 1 above."

16. I might have thought there was more sense in the endorsement of that penal notice if it had been directed at the governor of the prison and the chief executive of Premier Security. I cannot really see what purpose it served when addressed to the respondent. I have to wonder whether the judge made it or whether the court office simply added it for reasons their own.
17. We are further told that it is well known in Reading that prisoners subject to committal are produced only with great difficulty. If the prison authority can be persuaded to produce them at all, there are no cells in Reading County Court in which they may be accommodated, with the result that the contemnor, or potential contemnor, has to sit, doubtless in the public area of the court, handcuffed to a burly officer. That is a very unsatisfactory state of affairs. Perhaps it could fairly be said that District Judge Henson ought to have appreciated it and that Reading County Court have, exceptionally, to take special measures either to ensure that a judge of the county court marches five minutes down the road to the Crown Court and takes the hearing in the Crown Court (which apparently Judge McIntyre has, rightly, been known to do), or the matter should be adjourned from the Reading County Court to the Oxford Combined Court, where the county court and the Crown Court sit in the same building and there are facilities to accommodate those on remand.
18. It may be because of the better facilities at Oxford Combined Court that an amendment was apparently made to Judge McIntyre's order on 9 May, the day before the appellant was due to appear. According to the amended order, it was "Amended under the slip rule". Again I do not know if this truly was justified by the slip rule, or was a later change of mind. In any event, the venue was changed from Reading County Court to Oxford Combined Court. The result was that on 10 May Mr Horgan was taken to the Oxford Combined Court.
19. That was a surprise to him. He had been struggling to find solicitors to represent him. His struggles ought not to go unremarked. Here was a man on bail and on remand for criminal charges, who had solicitors duly instructed and acting for him on the criminal charges. But because they do not have the necessary franchise to do legal aid work in civil matters, they could not appear for him in the county court. He had to struggle to find others to represent him. It is a struggle that should not be underestimated, especially for a man in prison whose access to lawyers is limited by his incarceration, the information available to him being from those who ordinarily do work in the criminal courts, not all of whom (and perhaps only a few of whom) are authorised to receive civil funding to appear in the civil courts. Eventually Mr Horgan had found a solicitor who could appear for him and arranged for representation in the court where he thought, according to the first order, he was due to appear: Reading. But, of course, the solicitor arrived in Reading County Court and the case was being dealt with in the Oxford Combined Court.
20. That hearing on 10 May was heard by His Honour Judge Compston. By now the desperate Mr Horgan was prepared to represent himself. Judge Compston very properly, in my view, thought that was unwise and that he ought to be represented. He made an order (perhaps unusually but I do not criticise him for that) requiring the respondent and/or the governor of Bullingdon Prison to inform the court of the full details of his solicitors no later than Monday following, 13 May at 4.00 pm. Unfortunately, however, Judge Compston was seemingly equally unaware of the limited power of the court to remand in custody for no more than eight clear days. I suppose it would only be fair to say that I was not aware of it, but I plead in mitigation that I have not had a great deal of experience of the actual operation of the Family Law Act 1996. I would have hoped that county court judges are more aware of the provisions of the Act than I am.
21. Having made that shameful confession, let me record what His Honour Judge Compston did. He remanded the appellant in custody for the matter to be listed in the Reading County Court again, to be listed no later than 24 May 2002. He directed that the appellant be produced at that hearing. That order was again in excess of jurisdiction. He should not have been remanded for more than eight clear days. It was again, potentially at least, a breach of the human rights of the appellant. It should not have been made in that way at all.
22. At last something began to happen in favour of this prisoner. He was able to instruct the Oxford Law Group, who are experienced and obviously very competent. They immediately realised when they came on the record on 17 May that things had gone seriously wrong. They promptly instructed counsel, and counsel appeared on informal notice to the wife that they were moving for the release of Mr Horgan. The Oxford County Court made an order which records "Upon no appearance by either party". We are told, as I have said, that counsel and solicitors did appear for Mr Horgan. Judge Compston accepted, apparently without any difficulty, that his order made the previous week was wrong. He ordered that the respondent be released from custody forthwith, but on bail on condition that he did not contact the applicant, Mrs Horgan, and the date was fixed for the hearing at Reading County Court on 24 May.
23. None of those orders is the subject of the appeal and we do not have full detail of precisely what happened on those occasions. But it gives this court the opportunity to point to some salutary lessons that might be learned. The power of arrest is a draconian order. I do not complain about its imposition in this case. But when arrested, every effort must be taken to respect the rights of and the right to liberty of the arrested contemnor or, at that stage, perhaps only the alleged contemnor. Hence the requirement for the case to come back within 24 hours. Hence the limitation on the court's power to adjourn for no longer than eight clear days when remanding the respondent in custody. We have had argument addressed to us, upon which I would not wish to express concluded views, about two aspects. Firstly, is the power to remand in custody for a total period of eight days, as contended for by Mr Brett; or is the proper meaning of section 47 that the court has the power to remand on several occasions, and that each occasion can be for eight clear days? I incline strongly to think that the latter construction is the correct construction. Paragraph 2(2) of schedule 5 provides that "Where a person is brought before the court after remand, the court may further remand him." The purpose of the schedule, as I would construe it, is to follow the recommendation of the Law Commission that the powers of the court in dealing with these matters should be put on a similar footing to the powers of the magistrates' court generally, as set out in sections 128 and 129 of the Magistrates Court Act. There the practice is to give several remands in custody, each for no more than eight days. I would have thought that was the appropriate procedure also before this court.
24. A second argument was addressed to us as to the meaning of paragraph 3 of schedule 5, to which paragraph 2(5), giving the power to remand for a period not exceeding eight clear days, is made subject. Paragraph 3 provides:

"(1) If the court is satisfied that any person who has been remanded under paragraph 2 is unable by reason of illness or accident to appear or be brought before the court at the expiration of the period for which he was remanded, the court may, in his absence, remand him for a further time, and paragraph 2(5) shall not apply".

25. I do not find it necessary to pronounce upon interesting arguments that in this case paragraph 3(1) cannot be applied because the non-attendance of Mr Horgan was not due to his illness and was not due to an accident, being due to the incompetence or intransigence, or whatever one wishes to call it, of the prison and/or Premier Security. I would have thought that the court must have a residual power to deal with the exceptional case and, if necessary, remand in custody for as short a period as possible.
26. The other important lesson for judges is, however, this. It is it is imperative that at each stage after an arrest in these circumstances the court carefully consider why bail should not be allowed and give reasons why bail is not allowed. Ordinarily there may be very little reason for not granting bail. It may need a strong case to show that there would be some interference with the administration of justice if bail were not allowed, or that there is a serious risk of some further criminal activity, or even some serious further breach of the injunction likely to occur if bail is not allowed. The court should be astute, therefore, not to remand in custody for lengthy periods. I recognise that there is a balance to be struck. A fair trial on a serious matter of contempt requires proper representation and in appropriate cases adjournments longer than eight days are necessary.
27. That is the unhappy chapter of events which preceded the appearance of this case before Judge Critchlow. The appeal brought against his order is made firstly on the basis that the judge was wrong in his approach. Mr Brett complains that because the judge in his judgment referred to the history of previous convictions for assault he was admitting evidence that ought not to be before him. The complaint is, furthermore, that having made reference to a firearms offence, the judge correctly observed that in fact what had happened, I think six years previously, was that Mr Horgan was possessed of a CS gas canister, technically an offence under the Firearms Act but not an offence relating to a gun. I do not see that the judge erred in any way in referring to those matters as part of the history of the proceedings.
28. Mr Brett complains about a reference in his judgment at the end of the judgment where the judge said:

"I am also quite sure that the applicant is somebody who is in fear of him, not just because she knows that he is somebody who has past convictions for assault but also because of what she has experienced in her existence with him."

29. Mr Brett complains that the judge was not entitled to have regard to those matters. I do not agree. He was making a finding that the applicant was in fear and justifying it by reason of those matters. It was a finding of her state of mind and a proper one for him to make.
30. Mr Brett complains that the judge should be mindful of the requisite standard of proof where allegations are entirely uncorroborated. The judge had the standard of proof well in mind. He directed himself that:

"In bringing the proceedings for committal the applicant has to satisfy the court on the criminal standard of proof -- in other words, so that the court is sure -- that these allegations have been made."

31. He then went on to find that the applicant was frank in her evidence but that the respondent was evasive in his. He was therefore persuaded that the wife's allegations were credible and that the respondent husband's attempts to exculpate himself were incredible. He was fully entitled to come to those conclusions and in my view he was fully entitled to find, as he did, that of the seven alleged breaches of the injunction, four were fully made out, namely that on 9 April the husband had repeatedly telephoned the applicant and then on 11 April he continuously telephoned and said to her, "You don't have a life. I'll make sure of it." For those threats he was sentenced to three months' imprisonment. The judge found that on 15 April the husband had said, "I was not going to tell you over the phone, but I paid £500 for something. I think we both know what it is. I've buried it somewhere so can I see B [their child]?" He then told the wife, "I'm going to dig it up", and the wife took that to be a reference to a firearm. For that breach he was sentenced to six months' imprisonment, as he was for the final breach on 22 April when he telephoned the wife and said, "I have a present for you, what you picked up on the motorbike." The applicant took that to be a reference to a gun. He telephoned later saying, "It's no joke. Now it's time, I mean it." Asked whether he was going to kill her he replied, "Work it out for yourself." He said again, "Do you remember what you got on the bike?" When the applicant replied in the affirmative, he said, "It's taken me ages to get it but I finally have it. I mean it one hundred per cent." That was an elliptical reference to an occasion when the wife had, long before she met the respondent, carried a shotgun for a friend on his way to a clay pigeon shooting event.
32. The appeal against the conviction for those breaches in my judgment is hopeless and I would not allow it, but the husband appeals against the length of his sentence, submitting that the judge failed to take proper account of the fact that he had spent this period in custody and that the sentences were excessive in any event. Judge Critchlow, dealing with sentence, said this:

"You are on the face of it somebody who is a hardworking man. You have been in trouble before. You have been to prison. You have been to prison recently. I have to consider whether for the breaches that I have found, the four of them, the sentence should be one of immediate imprisonment. You are in work. But these are serious allegations. In considering what to do, I have borne in mind everything that has happened to you in the last month. You have served a term of incarceration which amounts to almost seven weeks, and this was a matter where there was an ex parte injunction and no further hearing after that was made."

33. He then imposed the sentences I have set out.
34. I am not sure what the judge meant to convey by reciting the previous spells in prison for the CS canister offence and other matters. If he meant that those offences aggravated the seriousness of these matters I would be concerned. I suspect that it was again no more than a recitation of the history. When he bore in mind everything that had happened over the last month and the serving of 24 days in prison which, with the allowance for good conduct, would have equated to a sentence of seven weeks, I hope he was taking account of the fact that that period of time probably does not count on a civil committal. We did not have full argument on this question. We did not have full argument on the same question when it arose in this court on 17 December 2001 [2001] EWCA Civ 2028 in the matter of McKnight v Northern, where Hale LJ gave a judgment with which Chadwick LJ and I agreed, that it appeared to us that because section 104 of the Criminal Justice Act defines a sentence of imprisonment so as to exclude a sentence made on committal, it seemed highly arguable that time does not count, pursuant to section 67 of that Act. This court decided, therefore, that it is generally appropriate, when imposing sentences for contempt of court, to take into account any period of time spent on remand, but that if it does not count, that period should be reflected so that there is not a double time being served.
35. So Judge Critchlow, if he did disregard the time taken on remand, has effectively imposed sentences of three months plus seven weeks and six months plus seven weeks. That in my judgment is far too long. It does not allow, as I think it should in this extraordinary, and I hope exceptional, case, that some of the time (it may only be a day or two) was unlawfully spent in custody. It ought to reflect the chapter of accidents which has led to this man being in custody for 24 days.
36. I would not wish to underestimate for one moment (and I say this hoping that Mr Horgan hears me loud and clear) that threats to kill, and threats that a firearm is available to carry out that threat, are to be regarded with the utmost concern by this or any court. But the purpose of sentencing for a contempt for a breach of an order is a dual purpose. It must be to reflect the court's disapprobation of the defiance, the disobedience of the court order, as well as to ensure that the order is henceforth obeyed. So the court cannot separate fully the gravity of the offence from the gravity of the contumelious conduct in defying the court's order.
37. But all of that being taken into account, the first matters were not of the utmost seriousness and, given there has been this history of accident, I would think for myself that the appropriate periods for which prison should have been contemplated were no more than 14 days for the first two breaches and one month for the remaining two. There is no appeal against the suspension of that until 1 March and that suspension will remain.
38. The final criticism of the procedures of Reading County Court are, however, that Judge Critchlow clearly intended to substitute a different injunction for that made by District Judge Gatter, not least in limiting its effectiveness to 1 February, and therefore an order must be drawn to give effect to that variation of the original order and to give effect to Judge Critchlow's view as to the length that the injunction should now last. I would therefore allow the appeal, substituting those reduced periods in its place.
39. The final footnote is simply this. This couple face difficult days where there will be an anxious dispute over contact to a very young baby. Passions will be inflamed, but both parties must proceed very carefully indeed and I hope that those difficult decisions will be taken without there being any further hint or suggestion of a breach of this order. I also hope the mother will recognise that for a father this is a very difficult time indeed and she too must have some sympathy for the predicament which now faces their child.
40. That said, the appeal is allowed, in my judgment, with the substitution of that limited period of imprisonment.
41. LORD JUSTICE POTTER: I agree. I would mention for the record, in relation to the wife's assertion that the appellant had a previous conviction for a firearms offence, that the judge correctly stated in his judgment that the conviction was in respect of use of a CS gas canister some years ago, which is in fact an offence under the Firearms Act; but that there was no conviction in respect of guns nor any evidence that the appellant had ever possessed or used a gun. Nevertheless, in the circumstances of the violent history and various statements of the husband, the judge apparently went on to conclude that he accepted the wife's belief and fear that the appellant was someone capable of getting hold of a gun in pursuance of threats made by him which were part of the substance of the allegations of contempt.
42. I would also add that in my view, on the true construction of section 47 of the Family Law Act 1996, subsections (7), (10) and (11), as elaborated in schedule 5, provide in paragraphs 2(2) and 3(1) of the schedule for a further remand of not more than eight days following a first remand of not more than eight days. There is not, therefore, as argued by Mr Brett, an absolute and overall limit of eight days attaching to the remand in custody of a person under section 47.
43. LORD JUSTICE LONGMORE: I agree. It is a deeply unsatisfactory feature of this case that on two separate occasions, 24 April and 10 May, Mr Horgan was unlawfully remanded in custody for a period of more than eight days, contrary to paragraph 2 of schedule 5 of the Family Law Act 1996. Despite this fact being drawn to the attention of His Honour Judge Critchlow, he made no specific reference to it in his sentencing remarks. The fact that Mr Horgan had been unlawfully in custody on remand is a matter which in my view should have been taken specifically into account in determining the proper sentence.
44. For this reason I agree that the sentence of imprisonment imposed by the judge was excessive and that we should interfere, and I agree with the order proposed by my Lord, Lord Justice Ward.
45. Another unsatisfactory feature revealed by the case is that Reading County Court appears to have no cells where litigants in custody can be held pending trial of their cases and that the body responsible for producing defendants in custody to court, in this case Premier Security Ltd, say that they are only contractually obliged to produce those in custody at Reading Crown Court. This must surely mean either that District Judge Henson should have directed Mr Horgan to appear at a Crown Court (whether that be Reading or Oxford), not the county court; or that His Honour Judge McIntyre should have held the hearing of 3 May at the Crown Court. It is not, of course, for this court to tell Reading County court what the appropriate administrative arrangements should be, but in cases where the liberty of the subject is at stake it is absolutely axiomatic that proper administrative arrangements should be made to deal with litigants in custody.
ORDER: Appeal allowed. Sentence reduced to 14 days for the first two breaches and one month for the remaining two, suspended until 1 March. A copy of the transcript of this judgment to be provided to the Chief Clerk of Reading County Court. (Order not part of approved judgment)