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 WORCESTER COUNTY COURT
(HIS HONOUR JUDGE COLES QC and
HIS HONOUR JUDGE MOTT)

		Royal Courts of Justice Strand London, WC2
		28th January 2005

1. LORD JUSTICE LAWS: This is an appeal against an order made in contempt proceedings by His Honour Judge Coles QC on 20th May 2004 in the Worcester County Court, by which he ordered that the applicant be committed to prison for contempt for six months but that the committal be suspended until 20th November 2004 provided that during the period until that date the applicant commit (as it was put) no further breach of an injunction which restrained him from molesting his wife or interfering with her. That order had originally been made without notice on 19th April 2004 by District Judge Suckling on the basis of a sworn statement by the wife. In that statement she complained of an incident of violence in which the couple's two young children as well as the wife herself had been struck by the applicant. That was said to have taken place on 16th April 2004.
2. On 29th April 2004 the applicant faced committal proceedings before His Honour Judge Mott for alleged breaches of the order. His Honour Judge Mott found that the applicant had breached the order by acts which took place on 21st April 2004, partly (so the judge found) perpetrated by the applicant and partly by the applicant's brother on his behalf. The judge said:

"10. I have had to consider of course the credibility of the witnesses and the various points that have been made on both sides. Clearly somebody is lying and there has been a great deal of hard swearing going on. In the end I have come to the conclusion without any doubt at all that I believe the evidence given by Mrs Vanessa Champken and her mother and I reject that given by the husband and by his brother."

3. Judge Mott sentenced the applicant to four months in prison but the sentence was suspended until 19th November 2004. He also issued revised injunctions again the applicant, but they I think were also limited in time. In fact the applicant and his wife are now back together with their children and the orders below are all spent. But the applicant is anxious to have Judge Coles' decision overturned if that is justified.
4. On 20th May 2004 the applicant faced applications by his wife calling upon him to show cause why he should not be committed for breaches of the orders made on 19th and 29th April. In his judgment given on the same day Judge Coles said that with the assistance of counsel he had drawn up a schedule of allegations against the applicant, amounting in all to some 14 incidents as he enumerated them. As he said:

"5. ... The allegations are that on some occasions the respondent was in breach of the injunctions against him by directly going to the former matrimonial home at 259 Drake Avenue, Dines Green in Worcester, or, alternatively, by encouraging others to go there and either use violence upon her or to threaten her or harass her."

5. Again the applicant and his wife both gave evidence. It was part of the applicant's case that he had been at a bail hostel when some of the breaches were said to have been committed. It was part of the wife's case that in some instances other persons acting on behalf of the applicant did the acts in question. The judge commented, plainly rightly, that the fundamental question was whether he believed the wife or the applicant. He correctly directed himself that the criminal standard of proof applied. Then he dealt in general terms with the crucial issue of credibility as follows:

"8. In assessing the credibility of the witnesses I should say that I found the applicant wife, Mrs Champken, to be a truthful witness. I did not form a very high opinion of the credibility of the respondent, but that of course is not an end of the matter because there are other matters which go to credibility and I should say that I accept the observations made by Mr Halstead for the respondent that the evidence of the log kept by the probation service at the bail hostel is evidence to be taken into consideration but, on the other hand, I do not think that evidence is conclusive on all matters because it does not necessarily prove that Mr Champken was not at a particular place at a particular time although there are instances when clearly it does prove that. I have had some assistance from the bail hostel on the logs but I do not think it is necessarily conclusive.

9. I have come to the further conclusion that I accept the submissions by Mr Bagshaw that there is an overwhelming inference from particular matters which I will identify that where incidents occurred and third parties were involved, the actions of those third parties were either encouraged or solicited by the intervention of Mr Champken. I have reached this conclusion because I think there is absolutely no other explanation as to why anybody else would have done what I accept she says has been done (which I will come to in a moment). The only inference to draw, and I think it is an absolutely overwhelming inference, is that what these other third persons did was at the instigation or encouragement of or solicitation of the respondent."

6. It will be seen at once that the judge's overwhelming inference that the relevant actions of other persons were done on behalf of the applicant only arose for consideration once the judge accepted, as he did, that those actions had in fact been carried out by someone. The judge proceeded to go through the list of 14 incidents. At length he stated that the breaches said to have been constituted by incidents numbers 2, 3, 5, 6, 7, 9, 10, 11 and 12 were all proved, but not those numbered 13 and 14.
7. The applicant now appeals in effect against the adverse findings in this judgment. His essential case is that the judge's favourable view of his wife's credibility and his consequent conclusions in relation to most of the allegations are unsustainable or (in the language of the criminal law) unsafe. I will return briefly to the test to be applied by this court in an appeal of this kind.
8. The applicant has a major point relating to certain events which happened after 20th May 2004 when the judge gave judgment. This point would require the introduction of fresh evidence. We indicated in the course of argument that we would admit it. I will explain the point shortly, but there are some other points taken relating to material which was before the judge and considered by him. I will deal with those first. They can be addressed quite briefly.
9. It is first said that the judge should have paid attention to the fact that there were inconsistencies between a witness statement by the wife and her diary entry for 30th April 2004 and a police statement. The witness statement contained an allegation not found in the other documents. This relates to incident number 3. It is clear from paragraph 12 of the judgment (which I will not read) that the judge had this point in mind. Nevertheless he concluded as he did.
10. I would reject this ground of appeal. This court will not interfere with a factual finding in contempt proceedings, as in other proceedings, unless satisfied that it is wrong (see Abouchitaa v El­Yamlahi [2001] EWCA Civ 1407). The judge heard the witnesses. He considered the point in question as I have said. He was entitled to conclude as he did. There is no basis here for upsetting his judgment.
11. The next point relates to incident number 4, by which it was alleged that someone knocked on the wife's door, grabbed her round the throat and said "this is for John", meaning the applicant. The applicant had in fact been in custody since about 2.00 pm the day before. The judge accepted the wife's evidence that the incident had happened but acquitted the applicant of any involvement, saying (paragraph 13) that there was insufficient evidence that it had been done at the applicant's instigation. The applicant said that the judge should have positively found that he was not involved.
12. I have some difficulty in seeing how the applicant is entitled to appeal against a decision in his favour simply because he complains of the judge's reasoning. But in any event there is nothing in this. Always subject to the applicant's major point on the fresh evidence to which I am coming, there is nothing here to upset the judge's finding.
13. I should say there is also a complaint concerning the judge's findings on incidents 13 and 14, where again he found no breach. Mr Halstead for the applicant says he should have made specific findings in relation to those matters which would have affected his view of the wife's credibility on other matters. He might indeed have done so; but this is again an insufficient basis on which to overturn Judge Coles' conclusions.
14. The next point concerns incidents 9 to 12 which the judge took together. I must read paragraphs 17 and 18 of the judgment:

"17. Number 9 is on 7th May and I can group together numbers 9, 10, 11 and 12. They are all allegations on 7th, 8th and 11th May of either writing on the back door or the back window or the delivery of a threatening letter to the front door and pebbles being thrown at the house. I find that the respondent himself actually either did this writing or wrote these letters or it was at the respondent's instigation. A point is made about the letter which was delivered at 8.30 pm on 11th May. I will read the letter: 'I told you I will not go down. I will make out you are lying. I have people who will say I was with them. I will get you. I will be in town ---' and the rest is indecipherable. It does go on but I won't read the rest of it.

18. The point is made that the work 'lying' is spelt 'L.I.Y.I.N.G.' Mrs Champken was asked in the witness box how she spelt the word 'lying' and she said, 'I spell lying L.I.Y.I.N.G.' It was said that that was very strong evidence that she actually fabricated that by writing 'lying' in that way. I have been troubled by that, but when the respondent gave evidence he indicated in the witness box that he was a very bad speller, contrary to what in fact his wife had said. And when I asked him to spell 'lying' he spelt it L.I.I.N.G. Given that they both would appear to be bad spellers, I don't think I can attach the sort of weight which Mr Halstead wants me to attach to that bad spelling to reach the conclusion that the case has not been proved. So I find that all those matters, that is to say 9, 10, 11 and 12, are proved."

15. This is in my judgment a much more substantial point. The fact that the wife misspelt the word 'lying', L-I-Y-N-I-N-G, in exactly the same way as it had been misspelt in the letter complained of, is to say the least striking. Further the judge is with respect surely guilty of a non sequitur. The fact that the applicant is a bad speller as well does not mean that the point about the wife's spelling is any less forceful. I would have been inclined at least to find that this particular allegation was unproved given the point about the spelling. However, I repeat the judge heard and assessed the witnesses and for my part I would not be prepared to hold that this point, striking though it is, alone infects the whole of the wife's case put forward on 20th May.
16. Now I may turn to the major point on the fresh evidence which (if I may so put the matter) is really what the case is about. On 21st May 2004, the very day after the hearing before Judge Coles, the wife complained to the police and made a statement to the effect that that morning, 21st May, a man assaulted her in her garden, grabbing her and putting his right arm around her neck and his left hand in her lower back. She said she felt something sharp in his left hand. She claimed that this man had said:

"John said you don't think he's going to leave you alone just because he got off yesterday."

Then, according to the wife, the man ran away. However, the same night she made a further statement to the police admitting that this allegation about the intruder was entirely false. We do not have this statement. It is however referred to in a case summary prepared by the police which records that at 11.30 pm on 21st May the wife was charged (with an offence of attempting to pervert the course of justice) and was bailed to appear at the Worcester Magistrates' Court on 27th May.

17. A supplemental skeleton argument put in on the wife's behalf states that she appeared at the Worcester Crown Court in August 2004 and pleaded guilty, and on 12th December 2004 she was sentenced to a community rehabilitation order of 18 months' duration. This skeleton argument is also the source of our information that the applicant and the wife are reconciled.
18. Mr Bagshaw for the wife submits that the test on appeal for a committal order is whether the decision below was wrong (CPR 52.11(3)). I have already indicated that that is indeed the test. However in my judgment, given the particular context and the quasi-criminal nature of committal proceedings, if the decision at first instance is demonstrated to this court's satisfaction to be unsafe because it is based on tainted evidence, then it may readily be categorised as wrong. Otherwise the court is powerless to remedy the injustice that would arise when a person has been committed to prison on evidence which in truth ought now to be regarded as unreliable.
19. The events which happened on 21st May 2004 and thereafter persuade me that the decision of Judge Coles is unsafe. The false allegation of 21st May is in fact extremely similar to some of the allegations relied on and found to be proved by Judge Coles. Of course I accept that not every later lie by a complainant in the wife's position will necessary undermine an earlier finding of a judge who had believed her evidence. My view of the matter is entirely generated by the particular facts here: the striking similarity of the false allegation and the earlier allegations and the fact (which I also regard as relevant) that this false tale was made up one day after Judge Coles had decided as he decided.
20. In those unusual circumstances -- and they are unusual -- I for my part would allow this appeal and quash the order made by Judge Coles.
21. It is canvassed in I think the skeleton argument put in by Mr Halstead for the wife whether Judge Mott's decision also ought to go. We have not heard argument about that. Subject to my Lord's view of course, if he agrees with my view as to the decision of Judge Coles, we had better hear very brief submissions about Judge Mott.
22. LORD JUSTICE WALL: I agree.
(Further submissions)
23. LORD JUSTICE LAWS: Having heard brief submissions about Judge Mott's order, given the conclusions that were reached by my Lord and myself in relation to Judge Coles, I would also quash Judge Mott's order. It is not I think necessary to add any additional reasoning.
24. LORD JUSTICE WALL: I agree.

ORDER: Appeals allowed.

(Order not part of approved judgment)