England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		1st March 2001

1. LORD JUSTICE LATHAM: On 2 September 2000 the respondent appeared before Assistant District Judge Foster sitting in the Magistrates' Court at Kingston upon Hull. A preliminary issue was raised on his behalf to the effect that for the prosecution to proceed with the charge, namely that he had assaulted his wife on 18 June 2000 occasioning her actual bodily harm, would amount to an abuse of the process of the court. Put very simply, the basis of that submission was that the respondent had almost immediately after the incident been taken before His Honour Judge Morrell, sitting at the Hull County Court on 22 June 2000, on the grounds that the events of 18 June had amounted to a breach of an injunction against him. The judge, having found the respondent to be in contempt, imposed a three-month sentence of imprisonment.
2. It was argued that to subject the respondent to the process of trial and, if convicted, sentence on the criminal charge would in effect be exposing him to the risk of punishment twice for the same offence, because the facts giving rise to the criminal prosecution were identical to the facts which were relied upon by the judge in coming to the conclusion that the respondent had been in breach of the injunction.
3. The deputy district judge made it clear in his judgment, in which he upheld the submission that to proceed would be an abuse of process, that he did so on the following basis:

"(a) The County Court proceedings and these proceedings are based on precisely the same facts.

(b) The County Court proceedings are to be regarded as having all the hallmarks of criminal proceedings. I have considered Archbold 2000 at 16-60 in this regard and note particularly the case of Benham v UK 22 EHRR 293 in that respect.

(c) The defendant has been punished by the imposition of a 3 month sentence ensuing out of that hearing before the County Court.

(d) To allow the case to continue would be to allow for the possibility of the Defendant receiving a second punishment for the same offence."

4. The questions which he poses for the consideration of this court are as follows:

"i) In all the circumstances of this case, did I err in law in finding an abuse of process and in ordering a stay of proceedings?

ii) Is the decision of R v Bryan Gwyn Green (1993) CLR 46 compatible with the terms and principles of article 6 of the European Convention?

iii) With the coming into effect of the Human Rights Act (1998), are proceedings for contempt before a civil court to be classified as 'criminal' within the terms of article 6 of the European Convention on Human Rights and Fundamental Freedoms, and thereby be so classified in subsequent criminal law proceedings?"

5. I should start by making it clear that these proceedings today have not been fully argued in the sense that the appellant has been represented and has provided the court helpfully with a full skeleton argument and a list of authorities, but the respondent has not been represented and there has been no other party appearing before us to argue to the contrary. It follows that this court should be cautious in what it says in relation to matters which may be controversial on the basis that they have not been subject to full argument.
6. However, despite the fact that we have not had the assistance of counsel other than from the appellant, the answer to my mind in this case is quite clear. Abuse of process is a concept which needs to be approached by any court with the greatest of care. The normal course should be that any criminal charge should proceed to full trial, and it is only in the most exceptional circumstances, as the courts have repeatedly reiterated, that the court should exercise its undoubted discretion to prevent such a course on the basis that the proceedings amount to an abuse.
7. There are a number of categories of circumstances which can be identified as amounting to abuse. For example, where the prosecution has manipulated or misused the powers of the court so as to deprive the defendant of the protection provided by the law, or to take unfair advantage of a technicality, then clearly the court may intervene. Where there has been unjustifiable delay on the part of the prosecution which may prejudice the defendant so as to deprive him of the opportunity in truth of a fair trial, then again the court may intervene.
8. Essentially, those justifications for intervening go to the question of whether or not a defendant can have a fair trial. There are, of course, other circumstances which can give rise to the conclusion that the proceedings are an abuse. An example is where the means whereby the defendant has been brought before the court offends against the rule of law. An example of that is R v Horseferry Road Magistrates' Court, Ex parte Bennett [1994] AC 42.
9. Coming more closely to the circumstances of this case, then the court will categorise as an abuse an attempt by the prosecution to prosecute a defendant on facts which, whilst not giving rise in strict law to his entitlement to plead autrefois convict or autrefois acquit, are nonetheless such as to give rise to the conclusion that it is merely an attempt by the prosecution to put another name or criminal categorisation on the same conduct which has already been the subject matter of the decision of a criminal court of appropriate jurisdiction. An example of that is the case of R v Beedie [1997] 2 Cr App R 167.
10. However, it should be noted that there is and has been no case in which the courts have precluded a criminal prosecution arising out of matters which have additionally been the subject matter of contempt proceedings. As can be appreciated, it may well be on many occasions that the same conduct will amount to the breach of an injunction and a criminal offence.
11. In relation to the potential overlap between those two jurisdictions, the only relevant case, it seems to me, to which we have been referred is the case of Hale v Tanner, which was a decision of the Court of Appeal Civil Division, reported in The Times on 22 August 2000. In that case, the court was concerned with the appropriate approach to the court's powers of sanction where there has been a breach of a non-molestation order, and in particular the circumstances in which it might be considered appropriate to impose a sentence of imprisonment.
12. The district judge appears to have been attracted by a passage in the judgment of Lady Justice Hale dealing with the consequences where criminal proceedings may be in train. She said:

"In many cases the court would have to bear in mind that there were concurrent proceedings in another court based on either the same or some of the same facts as in the contempt proceedings. The court could not ignore those parallel proceedings and might have to take the outcome into account in practical terms.

Contempt proceedings had a different purpose and often the overlap was not exact but the court would not want a contemnor to suffer the same punishment twice for the same events."

13. The one thing that is noteworthy about that passage is that Lady Justice Hale was not seeking to suggest in any way that parallel proceedings would amount to an abuse of process of the court.
14. In domestic law contempt proceedings and criminal charges have different purposes. As far as the proceedings for contempt are concerned, as Lady Justice Hale said in Hale v Tanner, there are two objectives. Firstly, the court has to mark the court's disapproval of disobedience to its order; secondly, it has to consider how best to secure future compliance with the order. Those are two considerations which are quite different and separate from the considerations which are raised by a criminal charge. Unlike contempt proceedings, which are essentially proceedings between the court seeking to enforce its order and the contemnor, criminal proceedings are between the public and are concerned with different considerations.
15. The essential feature of a criminal charge is the attempt to protect public order; the necessity to punish offenders and in so doing both deter the offender and others from committing offences and therefore provide protection for the public. Incidentally, of course in relation to the sentencing process, there will be considerations relating to the rehabilitation of the offender. But the important feature of a criminal charge is the fact that it is seeking to ensure that there is proper sanction for those who break the law. Not a court's order, but the law.
16. It seems to me in those circumstances that there can in domestic law be no justification for concluding that merely because someone has, on a given set of facts, been found guilty of contempt of court, that should in any way preclude the appropriate prosecuting authorities from bringing criminal proceedings for the purposes to which I have referred.
17. It is not only those considerations which need to be emphasised. Further, a criminal conviction is a public sanction which has consequences which are of significance in relation to the protection of the public for the future. Further, it may or may not be that, in view of the considerations which affected the court when dealing with a breach of an injunction, the way in which the court dealt with that matter was appropriate in considering the public interest so far as punishment is concerned. By that I mean it may or may not be the case that given the facts of the particular case here, three months' imprisonment would be an appropriate criminal sanction. One can envisage cases in which the court dealing with the contempt application will deal with the matter in a wholly different way from the way in which the criminal courts may consider appropriate.
18. However, again considering the matter simply as a matter of domestic law, it is clearly right, as Lady Justice Hale said in Hale v Tanner, that the court's dealing on the one hand with an allegation of contempt and on the other with a criminal charge should take into account what the court dealing in the alternative jurisdiction has or may do in relation to the individual when coming to a decision as to what would be the appropriate penalty.
19. In this case one would assume that the court, if the respondent were found guilty of the criminal offence, undoubtedly will take fully into account the sentence of three months' imprisonment that had been imposed by His Honour Judge Morrell in deciding the appropriate way in which to sentence the respondent for the criminal offence. My conclusion that contempt proceedings do not in domestic law preclude criminal charges is entirely consistent with this court's decision in Bryan Gwyn Green [1993] Crim L R 46.
20. That being the position in domestic law, the question which really arises in this case is the extent to which the deputy district judge was right to take the view that by reason of the provisions of the European Convention on Human Rights, the contempt proceedings should be categorised as criminal proceedings and therefore carry with them the similar results that a conviction for an offence based on similar facts would carry; in other words, should the principle set out by this court in R v Beedie be applied to this type of situation so as to conclude that in essence this was a case which should be equated to autrefois convict.
21. The basis upon which the deputy district judge came to his conclusion would appear to be that contempt proceedings would be categorised as criminal for the purposes of Article 6 of the European Convention on Human Rights by reason of the fact that although categorised as civil within this jurisdiction, they nonetheless carry with them penalties of sufficient severity to mean that the protection afforded by Article 6 should be extended to proceedings for contempt.
22. By putting the matter in that way, it seems to me that the fundamental fallacy of the deputy district judge is exposed. The European Convention of Human Rights does not recategorise proceedings for domestic law purposes as criminal or noncriminal. That is not its purpose. The purpose of Article 6 is to provide procedural safeguards for those facing charges which are criminal or can be considered to be of a nature which justifies the procedural protection envisaged by that article. That is the limit of the purposes of Article 6.
23. It follows, it seems to me, that Article 6 has no application to this particular situation at all. We are not being asked to decide whether or not, in relation to the contempt proceedings, the respondent was or was not entitled to the protection of the procedural matters in Article 6. We are dealing with an entirely different question, and Article 6 does not touch that question. We are asked simply to determine whether or not the contempt proceedings are such and of such a kind as to justify the conclusion that the pursuing of this prosecution amounts to an abuse of process.
24. For the reasons which I have given, since Article 6 does not affect the situation, the answer to that must be no. There can be no abuse in merely pursuing criminal proceedings based upon the same facts as have been the subject matter of a contempt hearing. That does not mean that there may not be cases where the court could conclude that proceedings were, for some reason, vexatious or were otherwise an abuse of process, but the facts before us in this case do not raise any such issues.
25. It follows, it seems to me, that the appeal must be allowed. I would answer the questions posed by the deputy district judge as follows. As far as i) is concerned, the answer is "yes", he did err. As far as ii) is concerned, that requires us to consider the question of whether or not Bryan Gwyn Green [1993] Crim L R 46 remains good law. For the reasons that I have given as to the effect of Article 6, the answer to that question must be "yes". As far as question iii) is concerned, for the reasons that I have given, that question does not fall to be answered in relation to these proceedings. It is not directly relevant to the question which had to be answered on the facts of this case.
26. For those reasons, therefore, as I say, I would allow this appeal.

MR JUSTICE ASTILL: I agree.

MR BURY: Would your Lordships in those circumstances then remit this case for a rehearing in the lower court?

LORD JUSTICE LATHAM: Yes.

MR BURY: Thank you.

LORD JUSTICE LATHAM: Any other matters?

MR BURY: I am not instructed to apply for costs.

LORD JUSTICE LATHAM: No. Then we will rise.