England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		The Priory Courts 33 Bull Street Birmingham B4 6DS
		15 July 2011

HH JUDGE SIMON BARKER QC:

Background

1. On 1.7.11, I committed Mr Ravinder Balli, who refers to himself as and wishes to be known as Ravinder Singh (S), to prison for a term of 6 months for his contempt in the face of the court. My judgment in that case is available under the neutral citation number [2011] EWHC 1736 (Ch).
2. At the outset of this judgment, I should make a correction to the final paragraph of that judgment where I dealt with the effect of the sentence of imprisonment I imposed and said :

"I therefore impose a sentence of 6 months imprisonment for the contempt of court admitted by S. This means, in the ordinary way, ie subject to good behaviour, that 3 months will be served in prison and for the remaining 3 months S will be on licence".

3. I also referred to release "on licence" at paragraph 24 of that judgment. The observations relating to good behaviour and release on licence are incorrect. S258(2) of the Criminal Justice Act 2003 provides :

"As soon as a person to whom this section applies has served one-half of the term for which he was committed, it is the duty of the Secretary of State to release him unconditionally." (emphasis added).

Thus, the true effect of the sentence I imposed is that (1) irrespective of S's behaviour in prison, he is to be released upon serving 3 months (ie he is to be released on Friday 30.9.11), and further (2) S is not subject to release on licence and therefore is not at risk of being recalled to prison over the unexpired part of the following 3 months (ie to 31.12.11) in respect of the matters the subject of the committal in the event that he commits some other contempt or unlawful act during that period.

4. For my part, I do not believe that my erroneous explanation has caused any prejudice to S and therefore I do not consider myself to be under an obligation to release S immediately on that account. In my judgment, the sentence of 6 months was lawful; it was my explanation of its effect that was incorrect and contrary to statute. Mr Singh has said that that judgment has been widely circulated; so as to avoid the risk of future confusion, I shall cause my judgment of 1.7.11 to be corrected and to disclose the correction in footnotes.
5. On 1.7.11, I refused Mr Singh's application that I should suspend the committal of S pending an appeal. My primary reason was that I had no doubt as to the appropriate sanction for the admitted contempts; in addition, it seemed to me that one consequence of suspension pending appeal might be that it would give rise to an argument that such suspension had itself given rise to the raising of hopes, equivalent to a legitimate expectation, that a term of immediate imprisonment would not be imposed and that it would be unjust to dash such hopes; I had in mind, but could not then recall the reference to, a 1960's appeal case. I have now had an opportunity to locate the reference to the authority, it is In re W (B) (An Infant) [1969] 2 Ch 50, Winn LJ at p.58.
6. On 5.7.11, Rimer LJ considered an on paper application to suspend the committal pending appeal, and dismissed the same. Rimer LJ did, however, order the expedition of S's appeal, to be heard as soon as possible after 12.7.11.
7. On 8.7.11, S's solicitors notified the Court of Appeal that his appeal would not be progressed and that S would instead apply to me to purge his contempt.

S's application to purge his contempt

8. By an affidavit dated 5.7.11, made with the assistance of HM Prison Service's Legal Services, S states his wish to purge his contempt.
9. The affidavit is in the following terms :

"I wish to purge my contempt and to be released from prison.

I humbly apologise to this Honourable Court for breaking the Order and I undertake to comply in the future.

I solemnly promise that I will not breach any further Order the Court may make, or the Order now in existence.

I realise the Order must be obeyed.

I have learned my lesson.

I understand that I shall be liable to be sent to prison again if I fail to comply with any further Order that might be made by the Court.

I ask the Court to accept my apologies and allow me to be released".

10. Without wishing to be unduly pedantic, this text, which appears to me to be in a standard form, is inapposite for the contempts committed by S. S did not disobey or fail to comply with an order.
11. However, reading between the lines, there is a recognition that the due administration of justice and the rule of law are not to be disregarded, an expression of regret and remorse for the conduct which gave rise to the committal, a recognition that repetition will be likely to lead to further imprisonment, and an expression of desire to atone and have the slate wiped clean.

Purging Contempt ~ Principles

12. A committal order is an order of last resort; in the context of civil proceedings, it is also draconian. It should only be made where, having regard to all the circumstances, it is absolutely necessary.
13. By way of temper, a contemnor has an unqualified right to apply to the court to purge his/her contempt and seek an order for immediate release. This is not a 'once only' right, rather it is a continuing right running throughout the duration of the sentence.
14. The origins of this right appear to be twofold : (1) being rooted in the quasi-religious concepts of purification, expiation and atonement (Harris v Harris [2002] Fam 253, Thorpe LJ at paragraph 21); and, (2) prior to the coming into force of s.14 of the Contempt of Court Act 1981, being the means by which release from prison was secured following committal to prison for an unspecified period under common law (the 'price' of release being, as part of the purging, compliance with a mandatory order or a credible promise not to disobey a prohibitive order in the future).
15. With these considerations in mind, a contemnor's right to apply to purge his/her contempt became enshrined in a procedural rule, currently RSC Ord 52 Rule 8(1), now in the CPR Sch 1, which provides :

"The court may, on the application of any person committed to prison for any contempt of court, discharge him".

16. There are only three possible outcomes of an application to purge and obtain release : (1) immediate release, (2) deferred release at a stated future date, or (3) refusal of the application (Harris, Thorpe LJ at paragraph 21, after citing at paragraph 17 and following Delaney v Delaney [1996] QB 387, Sir Thomas Bingham MR at pages 400-1).
17. Although the court may impose a suspended order of committal (see RSC Ord. 52 Rule 7(1)), on an application to purge it may not vary its sentence so as to suspend, for any period, the unexpired term of the sentence. There are two principal reasons for this : (1) clarity and certainty as to the powers of the court and the rights of contemnors, and (2) overarching this, such a variation is more accurately characterised as the imposition of a fresh penalty, which is not lawful, rather than amelioration of the original penalty (Harris, Thorpe LJ at paragraphs 21-2).
18. However, it is permissible to extract an undertaking as a condition of acceding to an application to purge (Harris, Thorpe LJ at paragraph 16).
19. Before leaving the principles relevant to an application for release, I should also have in mind the judgment of Court of Appeal in Lightfoot v Lightfoot [1989] 1 FLR 414. In matrimonial proceedings, Mr L had defied a court order to pay redundancy and other money due to him into a solicitors' joint account upon receipt, pending further order. Mr L received £30,000, paid all the money into his own account, withdrew £24,000, and claimed to have gambled that sum away. In the context of a committal application in the matrimonial proceedings, the first instance judge did not believe Mr L and, having regard to the flagrancy of the contempt, imposed an 18 month custodial sentence. Giving the judgment of a two judge court, Lord Donaldson MR, with whom Butler-Sloss LJ agreed, said at p.416H – 417C :

"… Sentences for contempt fall into two different categories. There is the purely punitive sentence where the contemnor is being punished for a breach of an order which has occurred but which was a once and for all breach. A common example, of course, is a non-molestation order where the respondent does molest the petitioner and that is an offence for which he has to be punished. In fixing the sentence there can well be an element of deterrence to deter him from doing it again and to deter others from doing it. That is one category.

There is a second category which I might describe as a coercive sentence where the contemnor has been ordered to do something and is refusing to do it. Of course, a sentence in that case has a punitive element since he has to be punished for having failed to do so up to the moment of the court hearing, but, nevertheless, it also has a coercive element".

20. The point that I notice in that extract, is the observation, in the context of a committal aimed at punishing the contemnor, that "In fixing the sentence there can well be an element of deterrence … to deter others from doing it". Butler Sloss LJ agreed with Lord Donaldson MR's judgment.
21. In Delaney, the Court of Appeal (Sir Thomas Bingham MR, with whom Balcombe LJ agreed) emphasised, at p. 394C, that " … the enforcement of orders is the prime object and the personal circumstances of the contemnor are a relatively minor consideration".
22. I also note that very recently, on 13.7.11, in (1) Edward Nield (2) Acromas Insurance Co Ltd v (1) Graham Loveday (2) Susan Loveday (Lawtel updates 14.7.11), the Disional Court (Sir Anthony May (President QB) and Keith J) imposed a 9 month immediate custodial sentence on GL for verifying, by statements of truth, false information in Particulars of Claim and a witness statement by which he exaggerated the basis for and value of a personal injuries claim. This sentence took into account that the dishonesty was unmasked before trial of the claim with the result that the action settled on terms whereby the costs paid by GL exceeded the amount of the agreed damages. Thus, before the committal proceedings, GL had lost rather than profited by his attempted deceit. However, throughout the committal proceedings and notwithstanding compelling evidence, GL had not admitted his contempt; moreover, before signing statements of truth GL's solicitor had warned him and SL that the making of a false statement of truth might lead to imprisonment. By contrast, SL was afforded credit for admitting her contempt, in knowingly making a false statement of truth to verify a false witness statement, and she benefited from several good character references. SL was sentenced to 6 months imprisonment suspended for 18 months.

Purging contempt ~ approach to the application

23. The court should and will remind itself (1) of the principles and facts upon and by reference to which it considered and determined the original sentence; and, (2) that, on an application to purge following a contempt in the face of the court, the court should, as Mr Singh reminds me, consider afresh the sentence imposed with a view to deciding afresh whether it is absolutely necessary that the contemnor serves the remainder of the unexpired term. This must be done in the light of (a) the contemnor's affidavit and/or oral evidence in support of the application to purge, (b) the contemnor having by then experienced prison, possibly for the first time, and the duration and circumstances of that experience, (c) the principles referred to above, and (d) any further facts and matters urged on the court during the hearing.

S's application to purge

24. As to (1), upon reviewing my earlier judgment, and after allowing for the correction made to disregard references to behaviour in prison and release on licence, I consider the sentence imposed to have been appropriate and neither excessive nor arbitrary.
25. S was not committed for disobedience of an order; however, the primary purpose of my committal order was punishment for contempt rather than coercion, ie the first of the two categories identified by Lord Donaldson MR in Lightfoot.
26. As to 2, I have specifically considered afresh whether the entry point of 12 months was correct or excessive, and whether the approach to reduction of this term was both in accordance with principle and adequate in the circumstances.
27. As to 2(a), I construe S's affidavit as set out at paragraph 10 above and accept it as sincere. However, on 30.6.11, S had written a personal letter of sincere apology, which I read and took into account fully on 1.7.11. In that letter, S explained, not so as to make excuses for himself, the circumstances in which he came to behave as he did and, more fundamentally, the devastating effect of being struck off as a solicitor in the sense of realising that years of study and hard work had been wasted; S wrote "taken away" but the appropriate verb is, in my judgment, "thrown away". Thus, the affidavit confirms and reiterates S's position as it was on 1.7.11. I add, that I would hope that S now realises that he alone was the author of his own professional misfortune.
28. S has given oral evidence on oath today. He has described in some detail his experience of prison life. I accept that it has been an alien and shocking experience for him. That the restrictions and routines constitute a significant punishment. S has also, again, expressed his sincere apology for his behaviour.
29. As to 2(b), I entirely accept that even one night in prison – the clang of the prison doors, as Mr Singh described it - will have provided a sufficient deterrent to S personally. S has now experienced almost 2 weeks of prison life.
30. As to 2(c), I start by making clear that, on 1.7.11, when deciding upon the appropriate sentence, I had in mind the question of whether or not it was permissible to impose a sanction aimed also at deterring others (although I was then not aware of Lightfoot). I did not impose or add to the sentence with the objective of deterring others as well as S. That was because I regarded the deterrence of others as a relevant ingredient of any sentence for the parallel criminal offences. These offences fell wholly outside the ambit of the contempt for which I was sentencing and, if deterrence of others had been taken into account by me, it might have resulted in exposing S to double jeopardy. I also had doubts as to whether such a purpose would be legitimate in the context of sentencing for contempt.
31. I considered that the appropriate way to approach a sentence for contempt in the face of the court was subjectively, in the sense of being driven by the particular circumstances of the case, in the context of upholding the rule of law and the proper administration of justice and with the objective of treating S justly.
32. Having disregarded general deterrence on that occasion, I consider that it would be wrong in principle to have regard to it now as a reason for holding to the sentence imposed if I was otherwise minded to vary it downwards. In effect, I would be imposing a fresh sentence.
33. In my judgment, extracting an undertaking from S, such as not to hold himself or his business out as a solicitor, not to undertake restricted business, and/or not to trade under a name incorporating the word "Law" is unlikely to heighten S's realisation of the problems he will face if he commits a further contempt in the future.
34. Nield is presently only reported in summary form. However, the summary report demonstrates the effect on the court of a genuine recognition and acceptance of the wrongdoing inherent in contempt of court (interference with the administration of justice and disregard of the rule of law). Like SL, once discovered, S was quick to admit his wrongdoing, and his general good character was attested to by numerous letters of support. However, S's desire to assist the Athwal parties and any pressure from his mother is quite different from the position of a wife whose husband is determined to make a false claim. Moreover, S did not need a solicitor to tell him that a person making a false statement of truth risks imprisonment; S had recently qualified as a solicitor and is to be taken to have been aware of the Code of Conduct 2007 core duties (which include (1) upholding the rule of law and the proper administration of justice, and (2) acting with integrity) and litigation duties (which include (1) not to deceive or mislead the court and (2) not to be in contempt of court).
35. I also note that the fact that there is an unfettered continuing right to apply to purge should not be a reason for refusing an application now if it is clear that immediate release is inappropriate but an alternative lesser sentence allowing for release before 30.9.11 is appropriate. The proper course would be to recognise that new position immediately. A contemnor is entitled, as a matter of natural justice, to be informed at the earliest opportunity of any improvement to his position.
36. As to 2(d), during the course of the hearing today the following facts and matters have been urged upon me by Mr Singh :

~ S is physically and mentally a very different man. He says he has lost more than 10kg in weight and he fully realises the wrong inherent in his contempt. The impact of 14 days in prison has been very substantial;

~ S has no criminal convictions and had never been to prison. Prison is not a soft option and the past fortnight has been very chastening;

~ the case of Sarwar, noted in the Law Society Gazette on 3.6.10 and referred to me on 1.7.11 and again today, concerned a concerted deception, Ms Sarwar pretending to be a solicitor and gaining and holding employment as such for more than one year, which was punished by a suspended sentence;

~ S has now been very heavily punished and nothing is to be achieved by continuing the term of imprisonment;

~ if a suspension of the remainder of the term is not permissible, the court should conclude that the period already served is a sufficient punishment in the circumstances of this case.

37. These are powerful points, well made by Mr Singh.

Decision

38. First of all, I acknowledge that I should not feel either obliged or entitled simply to uphold my earlier decision because I thought it was right at the time. To do that would be an abnegation of the judicial duty to consider and exercise the discretionary power arising on an application to purge. So, if and to the extent that I decide not to order the immediate release of S, I must have and give cogent reasons. Equally, I should not order such release unless I am satisfied that it is a proper exercise of the discretionary power to discharge.
39. The most compelling reason for acceding to an application to purge, even if only to order a release date earlier than 30.9.11, is that S has now experienced prison life for almost a fortnight.
40. Considering again the nature of the contempt and the approach to sentencing, factors in S's favour, in addition to those referred to above, were and are :

~ he caused no prejudice incapable of remedy and has not profited from his conduct;

~ he has not posed a threat to anyone (as is often the case in matrimonial and family proceedings);

~ he had no desire to cause harm; to the contrary, S's intention was to assist family friends urgently requiring legal advice and representation;

~ S cooperated fully once facing committal proceedings;

~ S admitted his contempt and entered the equivalent of a guilty plea;

~ S has apologised sincerely, on 1.7.11, by the affidavit in support of his application, and at the hearing today;

~ S's general good character is attested to by numerous letters of support, including as to his voluntary work in the community; and, other than as a solicitor, he has no antecedents;

~ by way of personal mitigation, S states that he is the main breadwinner at home and that his invalid widowed mother and younger brother rely upon him.

41. Factors to weigh against S were and are :

~ he could and should have referred the Athwal parties to a solicitor rather than accede to their (and his mother's) requests that he act for them;

~ S's conduct was deliberate, not merely momentary or a 'one-off', and was a very serious contempt in the face of the court;

~ S was solely responsible for being in contempt;

~ having been a solicitor, he must have been aware of both his duties and the seriousness of his conduct.

42. What is to be gained by requiring S to serve 3 months in prison? If such a sentence is to be upheld and an application to purge refused, it must be on the ground that no lesser sentence will suffice in the particular circumstances of this case. My difficulty is that that was the very basis upon which I sentenced in the first place; and, whether viewing again the reasons for that sentence or considering the position afresh and in the light of the additional evidence and submissions and the demeanour of S, a sentence of 3 months still seems the correct outcome in this case.
43. I would add that I do observe from S's demeanour and accept that he has found the experience of prison to be shocking and very difficult. However, I do not consider that almost 2 weeks spent in prison (the equivalent of a sentence of 1 month) adequately reflects the appropriate sanction for S's contempts.
44. On the material before me, there is nothing by reference to which I can properly, that is to say by exercising the discretionary power judicially, conclude that an original sentence passed today would be any shorter than 6 months.
45. What it comes down to is the importance of purging or atonement to the sanction of committal for contempt of court. The contemnor has a continuing and unfettered right to apply to the court to purge his/her contempt. In consequence, the court ought not to do other than give full weight to a genuine expression of atonement in so far as the just determination of the application allows.
46. On that basis alone, whilst refusing to grant S's immediate release, it is appropriate to accede to S's application by ordering S's deferred release at a stated future date. S's present release date is 30.9.11. It would be appropriate in this case to set an earlier release date of Friday 29.7.11. Thus, S will be required to serve a further 2 weeks in prison and his original sentence is commuted, by reason of his purging his contempt, to one of 8 weeks imprisonment of which he is required to serve 4 weeks in prison before being released unconditionally.