England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WOOLWICH COUNTY COURT
His Honour Judge Collins
WO0500010

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 March 2007

Lord Justice Moses :

Background

1. On 26^th and 27^th July 2005 His Honour Judge Collins CBE heard two applications concerning William Hammerton. The first was the application for contact with two of his children. The second was an application by his former wife for his committal to prison for breach of an undertaking given on 21^st December 2004 and for breach of an order made by the Woolwich County Court on 23^rd February 2005. Mr Hammerton was unrepresented. The judge chose to hear both applications at the same time. On the second day of the hearing, 27^th July 2005, the judge made an order for indirect contact. There is no appeal against that order. At the same time he committed Mr Hammerton to prison for three months. Mr Hammerton appeals against that decision.
2. The appeal was out of time but since the appellant was without legal representation whilst he was in prison we extended time. There was subsequent delay due to the difficulty the solicitors, who are instructed now, had in obtaining the necessary papers. Chief amongst these difficulties is the absence of any tape recording of a crucial part of the judge's judgment.
3. But this appeal concerns grave errors in procedure, which affected the whole of these proceedings. We do have a transcript of the proceedings and are, therefore, able to trace a series of procedural errors which deprived the appellant of the protection to which he was entitled before being sent to prison. These errors stem from a combination of the fact that the appellant was unrepresented and the decision of the judge to hear both Mrs Hammerton's application for committal and Mr Hammerton's application for contact at the same time. Before dealing with those errors I should identify such facts as are necessary for the disposal of this appeal.

The Facts

4. Mr and Mrs Hammerton were married on 1^st October 1977 and had five children, of which only two were the subject of the application by the appellant for contact. The parties separated in 2002. The last date the appellant had direct contact with the children was on 26^th December 2003. On the 9^th January 2004 the appellant issued his application for contact in the Woolwich County Court. The parties were divorced by decree absolute on 27^th August 2004.
5. The appellant undertook:-

"…not to contact or communicate with the Applicant, the Applicant's mother or father, nor her solicitors in any way whatsoever, neither send nor deliver to them any package or other missive and shall not encourage any other person to do so except through his own solicitors".

6. On 23^rd February 2005 the Woolwich County Court ordered that the appellant was:-

"forbidden to use or threaten violence against the applicant Beverly Hammerton and must not instruct, encourage or in any way suggest that any other person should do so, and is forbidden to intimidate, harass, or pester the applicant Beverly Hammerton and must not instruct, encourage or in any way suggest that any other person should do so".

7. On 6^th July 2005 Mrs Hammerton filed a Notice to Show Cause alleging nine breaches of the undertaking or the order. His Honour Judge Collins found only eight of the nine proven so it is unnecessary to set out more than those eight:-

"2. On 14^th May 2005 the Respondent received a letter directly from the Appellant;

3. On 31st May 2005 the Appellant telephoned the Respondent's solicitors on at least 12 occasions being threatening and abusive;

4. On 31^st May 2005 the Appellant telephoned the Respondent's parents over 30 times shouting abuse;

5. On 31^st May 2005 the Appellant attended at the Respondent's parents' home knowing that the Respondent was present at the property. The Appellant forced entry by kicking the door in and was abusive and made threats to the Respondent;

6. On 6^th June 2005 the Appellant telephoned the Respondent's solicitors on 2 occasions making threats;

7. On 7^th June 2005 the Appellant telephoned the Respondent's solicitors over 50 times being threatening and abusive;

8. On 7^th June 2005 the Appellant attended the Respondent's solicitors' office threatening and abusing members of staff;

9. On 14^th June 2005 the Appellant telephoned the Respondent's solicitors' office being threatening and abusive."

The allegations identified at 2 and 5 concern breaches of the order. All the other allegations alleged breaches of the earlier undertakings.

8. As I have already recalled, the judge found those eight allegations proved and committed the appellant to prison for a period of three months.

Principles Relating to Committal

9. I should set out a number of principles in relation to committal hearings which are well settled. Those relevant to this appeal are:-

i) By virtue of s. 6 of the Human Rights Act 1998, it is unlawful for a court, as a public authority for the purposes of s. 6(3) of the 1998 Act, to act in a way incompatible with defendant's rights enshrined in article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). If any authority was needed for such a proposition, which it is not, it was expressed recently in R v Mustaq [2005] 2 Cr.Ap.R.32 p 485 at para 53 p 506. The need to ensure that the conduct of committal proceedings in family cases follows the precepts of the Human Rights Act 1998 is central to the Practice Direction (Family Proceedings: Committal) 2001 1 WLR 1253. This Practice Direction applied to the proceedings before HH Judge Collins in July 2005.

ii) Proceedings for committal are a criminal charge for the purposes of article 6 (see Re K (Contact: Committal Order) 2003 1 FLR 277 at para 21 p 282). Thus the defendant to such proceedings has the right enshrined in article 6(3)(c):-

"to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."

That right is reinforced by the jurisprudence of the European Court of Human Rights in recognising that the interests of justice, in principle, call for legal representation when deprivation of liberty is at stake (Benham v United Kingdom [1996] 22 EHRR 293 at 324). Such a right exists even where a defendant has parted company with one set of lawyers (see Re K per Hale LJ para 23) and see also Butler-Sloss P in Re: G (Contempt Committal) [2003] 2 FLR 58 at para 22 p 65). The obligation to afford a defendant representation imposed by virtue of article 6(3)(c) is not, however, unlimited. A defendant's intransigence in unreasonably failing to co-operate with whatever legal assistance is offered, or in refusing it, may make it impossible for legal assistance to be continued (see Re K per Mance LJ para 34). But absent such unreasonable behaviour, both article 6 and the decisions of this court make it plain that a defendant is entitled to be represented. If he is unrepresented then an adjournment should, save in circumstances of extreme urgency, be granted so that representation may be obtained.

iii) Since committal proceedings involve a criminal charge against a defendant, the burden of proving guilt lies on the person seeking committal (see article 6.2 of the Convention).

iv) A defendant to committal proceedings is not obliged to give evidence. His right against self-incrimination under article 6.1 applies with equal force to committal proceedings in the family courts as to any other criminal charge (see Re G para 22 and e.g., Saunders v United Kingdom [1996] 23 EHRR 313 and recently Lord Roger in R v Mustaq para 53 page 506).

v) In the event that the facts constituting contempt are proved, the seriousness has to be marked by reference not merely to the intrinsic gravity of the conduct, but also to secure compliance in the future. The courts must bear in mind that in family cases different considerations apply from other contempts; the parties are subject to heightened emotional tensions and there is often a need for family members to continue to be in contact with one another (see Hale v Tanner [2002] FLR 883 at paras 25 and 29 and Aquilina v Aquilina [2004] EWCA Civ 504 at para 10).

The Hearing: Procedural Errors in Proving Contempt

10. Despite these principles, neither the 1998 Act, nor the European Convention on Human Rights, nor the Practice Direction, still less any authority were drawn to the attention of the judge at any stage. This was no doubt, in part, due to the fact that Mr Hammerton was unrepresented. The judge was under an obligation, himself, to comply with provisions of the 1998 Act but was, perhaps, diverted from recollection of the well-established principles I have identified, by the fact that all the relevant files were lost in the Document Exchange in the transfer from Woolwich County Court to the Central London Civil Justice Centre. Counsel appearing for Mrs Hammerton on the first day was unfit to attend on the second and her substitute did not himself remind the judge of the relevant principles and authorities. It would be unfair to make any ad hominem criticism of him since Mrs Hammerton was unrepresented in these proceedings and we have had no explanation as to why the usual assistance offered by opposing counsel to a litigant in person was not provided in this case.
11. Untutored and unassisted as the judge was, matters went wrong from the beginning. The judge noted, at the outset, that Mr Hammerton was acting in person. He made no comment about it whatever. In particular, he did not ask anything as to the circumstances in which he was unrepresented. Had he done so, he would have learnt that earlier legal representation had been withdrawn by the Legal Services Commission after he received a sum of money on his divorce. This, he had not reported and they had withdrawn legal aid. That was the subject matter of a review panel which was due to sit two weeks later. This emerged at the outset of the cross-examination by counsel for Mrs Hammerton on the second day of the hearing. Had the judge asked appropriate questions at the start of the hearing, on the first day, there is no reason to think that that information would not have been forthcoming.
12. Once the judge had learnt that the issue of legal aid was the subject of a review panel which was due to sit in two weeks' time there was no reason, so far as I can see, why, at the least, the committal hearing should not have been adjourned until the issue of legal representation had been resolved. By failing to ask appropriate questions at the outset the judge deprived himself of the opportunity of receiving that information.
13. In my judgment the judge was obliged to ask such questions and to consider, at the very outset of the hearing, whether there should be an adjournment so as to enable the defendant to be represented. In the absence of evidence of intransigence, and there was none, there was no reason why Mr Hammerton should not be represented. Moreover, there was no reason why the hearing of the committal should not be adjourned to enable him to be afforded such representation.
14. This brings me to the second source of error. That was the decision of the judge to hear both the application for contact and the committal proceedings at the same time. The judge learnt that Mr Hammerton was denying the allegations of breach of the undertakings and the order. He adjourned to read such copies of the papers as were provided to him and then decided, immediately, to "deal with everything" as he put it. Counsel for Mrs Hammerton on the first day never sought to resist that. Mr Hammerton could hardly have been expected to. But the decision to hear both applications at the same time led to inescapable errors in procedure. Once the judge had decided to hear both the applications together, he was faced with an insoluble conflict. It was for Mr Hammerton to make good his claim for contact. When he came to give evidence on the second day of the hearing he said he would accept a period of supervised contact and sought a report:-

"…providing I could get a fair crack of the whip, your Honour, with a fair balanced view of direct contact under supervision, then I would be quite confident that eventually the court would grant me to take them out." (sic)

15. But at the same time as Mr Hammerton was seeking to establish his claim for contact, it was incumbent upon Mrs Hammerton, in seeking committal, to prove breaches of his undertakings and of the court order to the high standard of proof necessary in committal cases. Moreover, as Butler-Sloss P pointed out in Re G (para 22) Mr Hammerton was not obliged to given evidence at all in his own defence. The court was obliged to warn him that he did not need to give evidence. No such warning was given. But the evidence he gave about the alleged breaches of the undertakings and of the order was clearly relevant to the issue as to whether any form of contact was appropriate in the interests of the children. Accordingly, if Mr Hammerton exercised his right not to give evidence in the committal proceedings, he would almost inevitably fail in his claim for some form of contact.
16. Thus, the decision of the judge to hear both applications at the same time placed Mr Hammerton in an impossible position. There was no means of reconciling the need for him to establish his case for contact, in the course of which he would have to deal with the alleged breaches of undertakings and of the order, and defending himself, at the same time, in the committal proceedings. There is no hint at any stage of the transcript of anyone advising Mr Hammerton of his rights in respect of the committal proceedings, nor of the judge reminding himself of the different burden and standard of proof in the two applications.
17. The judge gave no reason why it was essential to hear both applications at the same time. He never explained why the committal proceedings were so urgent that they had to be heard at the same time. Yet a sense of urgency often impedes the fair conduct of committal proceedings. The courts have frequently, in such cases, explained the importance of time for reflection. This is no less true in family cases, inflamed, as they often are, with a high degree of tense emotion (see e.g., in Re M (A Minor) Contempt of Court: Committal of Court's Own Motion) [1999] Fam 263 and in Re G (para 22)). But the need for an opportunity to "take stock" is a feature in all contempt cases, particularly in the criminal courts (see in particular the first principle identified in R v Moran 81 Cr. App.R.51). The need for immediate action may be, of course, particularly important where the contempt consists of behaviour in front of the judge. Even in such cases a judge must consider whether it is necessary to deal with the allegations of contempt as a matter of urgency, or whether fairness demands an adjournment, in particular where the defendant is unrepresented.
18. In the instant case it may well be that it was necessary to consider the contact application forthwith, bearing in mind the length of time since Mr Hammerton had seen his two children, one of whom was nearly 11, and the other who was 8. But that was no basis whatever for the conclusion that the committal proceedings were urgent. As I have already said, the facts of the alleged breaches were relevant to the contact proceedings. But there was no reason why the judge should not have adjourned the committal proceedings to be heard by a different judge or even, if that was unavoidable, by HH Judge Collins himself. If he were to hear those later committal proceedings, he would have had to make clear that he acknowledged, despite any adverse findings in the contact proceedings, that the burden and standard of proof were different. The better course would have been for another judge to hear the committal proceedings.
19. In so concluding, I appreciate that there will be cases, of which this case is an example, where the allegations of breaches of either an undertaking or a court order, are relevant to the contact proceedings. But it does not follow that it is necessary to hear the proceedings for committal at the same time. The important rights enshrined in article 6 must not be sacrificed in the interests of time and costs. It may well be that, after adverse findings in contact proceedings, committal proceedings turn out to be unnecessary or, at the very least, a severe sanction might be avoided once the smoke of battle has drifted away. I am not asserting that there can never be a case where an application for contact and for committal can never be heard at the same time. But it is difficult to envisage circumstances which compel such a procedure.

Procedural Errors: Sentencing

20. The judge gave a judgment in relation to contact based, so far as the notes of judgment show, upon a report from CAFCASS and a psychiatric report. He then turned to the application to commit Mr Hammerton to prison. At that stage, he again fell into error. The judge moved seamlessly from the finding that eight out of the nine allegations were proved to the question of sentence. He never paused, even at that stage, to consider whether Mr Hammerton should have legal representation. Nor did he remind himself of the principles, to which I have already referred. Firstly, it was incumbent upon the judge to bear in mind that the contempt occurred in the context of a father who had not seen his children for one and half years. Nor did he bear in mind that at the time of the alleged breaches this father was without the benefit of, possibly emollient, legal advice. Nor did he pay heed to the purpose of punishment in contempt proceedings.
21. He made no reference to any of these factors but imposed the sentence of three months' imprisonment on the grounds that in relation to one of the findings (no. 5) he had forced entry by kicking in the door and threatening violence. This, the judge said, was done in full view of his two children and their elderly grandparents, one of whom was a sick man who had undergone major heart surgery. If those allegations were true they were, indeed, serious, but the judge did not have the benefit of mitigation nor submissions on Mr Hammerton's behalf as to the context in which those events took place. It is disturbing to recall that apart from referring to that incident the judge also referred to what he described as two previous convictions. There is no suggestion that those convictions had anything to do with the facts of the instant case at all. Moreover, the defendant says they were recorded over thirty years ago. If that is right, and there is no evidence to the contrary, the judge was quite wrong to refer to them at all. It would never have happened, I suggest, had Mr Hammerton been represented at that stage.
22. Since Mr Hammerton was unrepresented and since he was never given an opportunity to mitigate, the process of sentencing was fatally flawed. Added to that error, the judge failed to take into account the context in which the breaches occurred and the purpose of sentencing.

Would Representation have made a Difference?

23. I have, during the course of my account of these procedural errors, deliberately avoided dealing with the merits of the allegations made against Mr Hammerton. In Re K Hale LJ concluded her judgment by observing that legal representation:-

"might have made a difference. I do not say that it would make a difference, but it might have done."

This suggests that in cases where a defendant has been deprived of his rights under article 6, it is necessary for the court to consider whether, had such a breach not occurred, it would have made any difference. I doubt whether it will ever be necessary for a court to speculate as to whether representation would have made a difference in cases such as these. The more serious a case, the more a defendant is likely to need persuasive and skilful representation. It is almost impossible to envisage a case where such representation will not be needed, if only, as this case demonstrates, to remind a judge of the principles which apply. Even in a case where a defendant admits each and every breach alleged, representation will be needed so as to assist the judge in considering the appropriate disposal. In my view, it will rarely be open to anyone opposing an appeal based on article 6 to contend that article 6 rights would have made no difference.

24. Even if there may be a case where the court declines to take action despite a breach of article 6, this is certainly not one of those. If it had been necessary to ask the question whether representation would have made any difference, there is ample material to suggest that it would. Quite apart from the question of the appropriate sentence, there was material in relation to the facts of the breaches to which the judge's attention should have been drawn. Had Mr Hammerton been represented it is likely that his representatives would have obtained a report from the police in relation to the incident on 31 May 2005, (No. 5), which the judge highlighted as justifying his sentence. In response to solicitors, who were acting for Mr Hammerton by 1 November 2005, the Metropolitan Police gave an account of that incident which contradicts in important respects the account found by the judge. Whilst it supports the allegation that he kicked the door and broke a lock, it specifically states that he failed to gain entry. That falsifies the suggestion that he made any threats or disturbed elderly grandparents. Indeed, it records that the grandfather told the police that he was not injured, was not threatened in any way and did not wish to pursue an allegation of criminal damage. Such information would, I believe, have been available to the judge had an adjournment been afforded to Mr Hammerton and had he been represented.

Conclusions

25. The procedural errors, both in relation to proof of contempt and sentencing, were such that the only appropriate course, I suggest, is to allow the appeal and to quash the findings and the sentence. The only good to come out of this dispiriting hearing are the lessons to be learned as to the need for separate proceedings for contact and proceedings for committal, the importance of the protection afforded to even the most recalcitrant litigant by independent advocacy and that speedy litigation is not the same as speedy justice.

Lord Justice Wall :
 


26. I have had the advantage of reading in draft the judgment given by Moses LJ in this case. I fully agree with it, and like him, see no alternative to allowing Mr. Hammerton's appeal, and quashing both the judge's finding that Mr. Hammerton was in contempt of court, and the sentence of three months imprisonment which the judge imposed.
27. This appeal reveals a sorry story of both administrative and judicial errors. Moses LJ's judgment should, in my view, be required reading for every judge hearing or aspiring to hear family proceedings, and in particular an application in such proceedings to commit one of the parties to prison for contempt of court. The appeal demonstrates graphically what can go seriously wrong when even an experienced judge like Judge Collins does not address his mind to ECHR Article 6 and to the correct procedure required to ensure that the issues he is being invited to hear are properly and fairly decided.
28. Two particular points need to be emphasised. The first is the importance of every family tribunal taking the greatest possible care, when hearing committal proceedings, to ensure that the evidential and procedural rules applicable to such proceedings are properly obeyed. The second is the need for a redoubled vigilance when the respondent to such proceedings is a litigant in person. I propose to address each of these questions in this judgment.
29. As Moses LJ has pointed out, committal proceedings are criminal proceedings for the purposes of ECHR article 6. This means that the evidential structure for the proceedings is necessarily more formal and regulated than that normally applicable in private law proceedings between parents under Part II of the Children Act 1989 (the 1989 Act). The latter are quasi-inquisitorial, and the court's objective is not primarily to grant relief to one party or the other, but to reach a solution which is in the best interests of the child or children involved, whose welfare is the court's paramount concern. As a result, the evidential rules in such proceedings are more relaxed. Hearsay is admissible, and facts have to be established on the balance of probabilities, not beyond reasonable doubt.
30. Such elementary considerations should, therefore, give judges immediate pause for thought, if they are asked to hear – at one and the same time - an application in proceedings under Part II of the 1989 Act, and committal proceedings by one of the parties to the Part II proceedings against the other arising out of alleged breaches of injunctions made, or undertakings given, in proceedings under the non-molestation provisions contained in Part IV of the Family Law Act 1996 (the 1996 Act), but essentially arising out of the same facts as the proceedings under Part II of the 1989 Act.
31. Like Moses LJ, I do not say that a judge can never take that course. There may well be cases in which the factual matrix for the committal proceedings is so inter-twined with that giving rise to the Part II proceedings, that there is no sensible alternative but to hear them together. However, if a judge does take that course, he or she must be astute to differentiate between the two sets of proceedings when it comes to findings of fact and disposal. That plainly did not happen in the instant case, and I thus find myself in complete agreement with Moses LJ's analysis of the impossible position in which Mr Hammerton found himself.
32. Like Moses LJ, I find it difficult to see how a judge can do justice in these circumstances when one of the parties is unrepresented. Had Mr Hammerton been legally represented, the judge's attention would have been drawn to the difficulties involved in hearing both sets of proceedings together, and either the committal proceedings would have been adjourned to be heard on another occasion (and, preferably, by a different tribunal); alternatively, had the proceedings been heard together, the judge would have been obliged to address the ECHR Article 6 issues identified by Moses LJ, including the distinction which the judge would have had to have drawn between the different evidential rules applicable; the differences in the burden and standard of proof; and the need both to hear mitigation; and to take into account mitigating factors which, it is clear, were not brought to the judge's attention in the instant case, and of which he was, as a consequence, unaware.
33. As I have already stated, non-molestation injunctions and undertakings in the county court are governed by Part IV of the 1996 Act. This part is entitled: FAMILY HOMES AND DOMESTIC VIOLENCE. The power to make non-molestation orders is contained in section 42 of the 1996 Act: the power to accept undertakings is contained in section 46.
34. Section 42A of the 1996 Act, which was introduced by section 1 of the Domestic Violence, Crime and Victims Act 2004, but which is not yet in force, makes the breach of a non-molestation order a criminal offence. It also contains provisions designed to avoid double jeopardy. The inter-relationship between a committal application in the family proceedings and actual or potential criminal proceedings is thus a further matter which the court will increasingly need to have in mind when hearing an application to commit a party to prison for alleged breaches of orders made or undertakings given under Part IV of the 1996 Act.
35. There are, of course, many cases in the books in which this court has upheld committal orders even although they have been made in proceedings which were procedurally flawed. The law is, in my judgment, accurately set out in paragraph 36.33 in volume 1(2) of the eighteenth edition of Rayden & Jackson on Divorce and Family Matters. Provided the contemnor has had a fair trial and the order has been made on valid grounds, the existence of a defect in the committal application or in the order served will not result in it being set aside except in so far as the interests of justice require that to be done. The leading cases are M v P and Others (Contempt of Court: Committal Order) and Butler v Butler reported together at [1993] Fam 167.
36. The instant case, however, is plainly not in that category, and I am in complete agreement with Moses LJ that the defects in the process in the instant case are so serious that the interests of justice plainly require both the committal order and the consequential sentence of imprisonment to be set aside.
37. I do, however, wish to make it clear that in my judgment this appeal is essentially about process. I am emphatically not saying, nor am I to be taken as saying, that a parent who breaches either a court injunction made in proceedings under Part IV of the Family Law Act 1996, or an undertaking given to the court in those proceedings would not deserve a sentence of three months immediate imprisonment if the court, on properly admissible evidence and in properly conducted proceedings, had found beyond reasonable doubt that he or she had behaved in the manner in which Mr. Hammerton is alleged to have behaved in this case. In particular, the fact that the breaches are of an order made in proceedings under Part IV of the Family Law Act - but which arise, on the facts, in the context of contact with a child - is not, in my judgment, mitigation which usually carries any substantial weight, however frustrated one parent may feel at being deprived of such contact by the other parent or by the court. As this court said in H v O (Contempt of court: sentencing) [2004] EWCA Civ 1691; [2005] 2 FLR 329, 337-8:

[37] In our judgment, the level of sentencing in cases which preceded the Protection from Harassment Act 1997 (and perhaps in some later cases) does not fully reflect contemporary requirements and opinion. We think that parliament and society generally now regard domestic and other violence associated with harassment and molestation as demanding rather more condign deterrent punishment than formerly. In a somewhat different context, contemporary judicial opinion may be seen in the decision of this court in four appeals from decisions refusing contact to fathers in cases where there had been serious domestic violence – Re L (a child) (Contact: Domestic Violence) [2001] Fam 260, in which the court accepted the advice of two psychiatrists, instructed by the Official Solicitor to report to the court on the serious effect of domestic violence on its victims, both adults and children.

[38] Furthermore, we do not regard the fact that the breaches in the instant case took place in the context of the appellant wishing to have contact with A as being in any way a mitigating factor. If anything, it is the reverse. The judge plainly thought so. In his sentencing remarks he said: "She is now acting as the mother of your child, and that is how you threat her". We agree with that criticism. The appellant had withdrawn his application for contact. In any event, separated parents have a particular responsibility to behave properly over all questions arising out of contact with their children, and it was fortunate that A was not present at any of the three incidents for which the appellant was sentenced.

38. That said, however, it is manifestly unsatisfactory in the instant case, for example, that the judge did not have the benefit of the police report identified by Moses LJ in paragraph 24 of his judgment. Moreover, that is but one of a catalogue of errors, all of which show the family justice system in a very poor light. Before turning to the considerations which have particular relevance to the fact that Mr. Hammerton was in person, I therefore propose to list a number of factors in the case, in addition to those identified by Moses LJ, which strike me as particularly unsatisfactory, and which are, as far as I am aware, unexplained.
39. I start with the undertaking given by Mr Hammerton on 21 December 2004 not to contact or communicate with his former wife's solicitors. In my judgment, the court should not have accepted an undertaking in these terms. It is, of course, manifestly unacceptable behaviour for a litigant in person to make repeated, offensive and purposeless telephone calls to the solicitors acting for the other parent in contact proceedings. But if that is the mischief which the undertaking is designed to address, that fact should be made clear. This could easily have been done by accepting an undertaking from Mr. Hammerton not to contact his former wife's solicitors "for any purpose other than a purpose directly connected with the necessary conduct of the proceedings" or some other suitable form of words.
40. As it was, Mr. Hammerton, whatever the nature and frequency of the calls he made, has the legitimate grievance that as a litigant in person, he was gravely hampered in his conduct of the pending 1989 Act proceedings. The words of the undertaking forbid him any (my emphasis) communication or contact with his former wife's solicitors. This would include (although it would plainly not be its intention) a response to any letter written by the solicitors to him. Whilst a party is represented, such an undertaking may, in certain circumstances be appropriate, but where, as here, Mr. Hammerton was in person, it was, in my judgment, the duty of the district judge accepting the undertaking to point out what it meant, and to amend it accordingly.
41. The telephone calls to the former Mrs Hammerton's solicitors also provide a useful example of the evidential difficulties faced by Mr. Hammerton. In contact proceedings, if the issue is in any way relevant, a judge might well assess a litigant's credibility without requiring the offensive nature of the telephone calls to be strictly proved. Equally, in such proceedings, a judge might well be entitled, as a matter of discretion, to make findings of fact about the calls without insisting on the attendance of their author to prove their content.
42. However, in committal proceedings, if the content of the calls and the attendance notes is disputed, the party bringing the contempt proceedings is required to prove them, and to give the alleged contemnor the opportunity to cross-examine their author on them. The contemnor must equally be afforded the opportunity to produce any evidence which contradicts them.
43. It is, of course, the case that an alleged contemnor cannot be compelled to give evidence in contempt proceedings. In practice, the reality is that an alleged contemnor who declines to give oral evidence in the face of properly proved and otherwise compelling testimony against him is likely to find the case against him proved beyond reasonable doubt. But this practical observation does not detract from the essential point: the case against an alleged contemnor (and particularly one who is unrepresented) must be strictly proved to the criminal standard of proof. Nothing less will suffice.
44. On the subject of representation in committal proceedings in family cases, the leading case is undoubtedly Re K (Contact: Committal Order) [2002] EWCA Civ 1559, [2003] 1 FLR 277, which Moses LJ has discussed. I add only that, in my judgment, a similar consideration applies to that case as applies to Moses LJ's judgment in the instant case, namely it should be required reading for every judge hearing a committal summons in family proceedings who is minded to send an unrepresented contemnor to prison.
45. There are, in my judgment, several other, perhaps more minor, but nonetheless dispiriting aspects of this appeal, leaving on one side the apparent inability of the Woolwich County Court to deal swiftly with Mr. Hammerton's contact application. The first is that this case could not be properly accommodated in the Woolwich County Court and had to be heard in the Central London Civil Justice Centre (CLCJC). Secondly, there is the serious fact that the court papers went astray between the two courts. The third is that there was a very substantial delay before the court tapes were transcribed, and that it appears to have required no less than six letters (including a formal letter of complaint from Mr Hammerton's solicitors) before the tapes were located and sent to the transcribers. Fourthly, and equally inexcusably, the CLCJC lost the vital tape recording containing the judge's judgment. No explanation has been forthcoming from the Court Service in relation to any of the three latter errors, although on 20 March 2006 an official from the Orders Section of the CLCJC formally apologised to Mr Hammerton for the "poor level of service" and invited a claim for reimbursement of expenses and compensation.
46. This case also seems to me to provide another argument for transparency, and for family proceedings to be more open. Proceedings for contempt of court would normally be heard in public. In family proceedings, however, the court retains a discretion to hear the evidence and to give judgment in private, provided that the judge goes into open court; (a) to identify the respondent, and (b) to state in general terms the nature of the contempt found proved and the penalty (if any) imposed: - see the President's Practice Direction (Committal applications and Proceedings in which a Committal Order may be made, 16 March 2001 [2001] 1 FLR 949; CPR 1998, schedule 1, RSC Order 52 rule 6; Schedule 2 CCR Order 29; and the decision of this court in Re C (Contempt: committal order) [1989] 1 FLR 288. This is a matter which may well need to be revisited by the Family Procedure Rules Committee.
47. We have no idea what procedure relating to the pronouncement of sentence was followed in the instant case, but, once again, if the judge had been required to hear the committal proceedings in public, he would at least have been obliged to direct his mind to how he went about hearing both sets of proceedings, and whether or not it was necessary for him to hear the committal proceedings then and there.
48. Finally on this part of the case, and as a consequence of all these deficiencies in the system, it is disappointing, but unsurprising (and thus not a matter of criticism) that the judge, presented on 27 April 2006 with a note of his judgment given on 27 July 2005 replied: "I'm afraid the hearing was too long ago for me to have any useful observation about the note of judgment".

Committals involving litigants in person

49. Against this unhappy background, I repeat and re-emphasise what this court has already said about the manner in which litigants in person in family proceedings should be treated.
50. Litigants in person are a regular phenomenon of the family courts, and with the ever downward spiralling restraints on public funding it may be said that they are ceasing to be a phenomenon and are becoming a commonplace. In paragraphs 50 to 56 of the incorrectly entitled case of In re O (Children) (Hearing in Private: Assistance) In re W (children); in re W-R (a child) [2005] EWCA Civ 759, [2006] Fam 1, this court made clear its views on the manner in which judges should treat litigants in person. I resile from nothing contained in those paragraphs, which I need not set out..
51. The instant appeal raises a different point. Nowhere in the transcript is Judge Collins other than scrupulously courteous to Mr. Hammerton. Judicial impatience, insofar as it is discernible, is quite properly directed towards counsel for the former Mrs. Hammerton. The point raised by this case, which Moses LJ has explained and developed in his judgment, is the propriety of sending an unrepresented litigant in person to prison. In my judgment, absent the type of impossible behaviour identified by Mance LJ (as he then was) in Re K [2003] 1 FLR 277 at 285 (paragraph 34) a litigant in person who is liable to be sent to prison for contempt of court is entitled to legal representation, if necessary at public expense. It should not be a matter for the Bar's Pro Bono unit, or other charitable intervention. Where the liberty of the subject is at stake, as is it in contempt proceedings, nobody should be sent to prison without having had the benefit of legal advice and representation.
52. I have had experience in this court of appellants already serving a prison term appealing against their sentences in person. That is bad enough, but in the instant case, Mr. Hammerton did not reach even get to this court before he had completed his sentence. In my judgment, this is simply unacceptable. Appeals against committal orders are one of only three categories of civil appeals which do not require permission: - see CPR 52.3(1)(a)(i). Even more important, however, in my view is the proposition that in the absence of exceptional circumstances, it is a breach of a party's ECHR Article 6 rights to be sent to prison for contempt of court without the benefit of legal representation. No magistrates' court would impose a custodial sentence on an unrepresented defendant, and in my judgment, no family court should send a litigant in person to prison for contempt without first making arrangements for that litigant to be legally represented.
53. We do not know, in the instant case, whether or not Judge Collins heard mitigation. Whilst it does not appear from the note of his judgment that he did so, I remind myself that this is only a note, and that we have been deprived of the vital part of the transcript (which includes the point at which mitigation would have taken place) by the fact that the court has lost the tape. It is, however, I think, no bad thing for the judiciary to be reminded of the criticism made by this court of a judge who did not hear mitigation before imposing a custodial sentence in a family case: - see Goldsmith v. Goldsmith [2006] EWCA Civ 1670; (2006) The Times 370, as well as the need for a judge to give himself sufficient time for the "quiet reflection" identified by the Criminal Division of this court in R v Huggins (2007) The Times 24.

Footnotes

54. Although it is not directly relevant to this appeal, we were concerned to learn that in addition to being sentenced to three months immediate imprisonment by Judge Collins, Mr. Hammerton had been prosecuted in the Magistrates' Court under the provisions of the Protection from Harassment Act 1997; that he had been found guilty, and sentenced to a maximum term of community service. We were also told that his conviction had been quashed on appeal to the Crown Court.
55. This court has not investigated these matters on this appeal, and it is plainly not for us to do so. I simply repeat the point identified at paragraphs 33 and 34 above, that, where a judge is dealing with a litigant in person who is also facing a criminal charge arising out of the same facts, it is important for that judge to make enquiries about the criminal proceedings before starting to hear contempt proceedings. There plainly will need to be a proper process to avoid duplication of proceedings as well as any inappropriate double jeopardy, particularly since, under section 42A(5) of the 1996 Act when it is in force, a defendant will be liable on conviction on indictment for a term not exceeding five years imprisonment.
56. Finally, we are sufficiently concerned about the issues raised in this appeal to have decided to send copies of our judgments to the President of the Family Division and to the Family Division Liaison Judge for Greater London. The former might like to consider whether it raises any issues which could properly be discussed by the Family Justice Council: the latter may well wish to investigate further and to consider what steps are necessary to prevent a recurrence of each and every one of the regrettable events which have characterised this appeal.