Jersey Unreported Judgments

[2005]JRC215

royal court

(Samedi Division)

 

6^th December 2004

 

 

 

 

 

Contempt of Court by breaching undertakings given to Court - necessary state of mind for a breach of an injunction or an undertaking to amount to Contempt of Court.

 

Advocate O Blakeley for the Representor;

Advocate J Hawgood for the Respondents.

 

judgment

deputy bailiff:

1.        On 4th November 2004 the Court sat to hear the Representor's representation that the Chief Officer of the States of Jersey Police and Mr Littler were in contempt of court by breaching certain undertakings which had been given to the Court on their behalf.  The Court announced its decision at the conclusion of the hearing but, as the parties had raised an important issue as to the necessary state of mind for a breach of an injunction or an undertaking to amount to contempt of court, the Court stated that it would give its reasons later.  We now do so.

Factual background

2.        The Representor was an employee of the States working at Police Headquarters.  In October 2003 he was suspended pending disciplinary enquiries into allegations of gross misconduct.  At the same time the police began a criminal investigation into these matters.

3.        In due course a disciplinary hearing was fixed for 10th August 2004 in order to consider whether the allegation of gross misconduct against the Representor was proved.  The Disciplinary Panel was to be comprised of the Chief Officer and Mr Littler, Director of Employee Relations & Pensions at the Human Resources Department. 

4.        On 4th August the Representor instituted proceedings by order of justice seeking an injunction preventing the disciplinary hearing from taking place prior to the conclusion of any criminal proceedings or a decision being taken that there should not be any criminal proceedings.  On 6th August the Court sat to hear the matter.  It declined to stay the disciplinary hearing in reliance upon certain undertakings which were given on behalf of the Chief Officer and Mr Littler. Those undertakings were set out in the Act of Court as follows:-

"(a)     That the disciplinary hearing involving the second and third Plaintiffs ("the disciplinary hearing") should be heard in private;

(b)    that the only people that shall be present at the disciplinary hearing shall be the Chief Officer, the Deputy Chief Officer, Mark Littler, Stephen McGaw, the Plaintiffs and any representatives of the Plaintiffs;

(c)     that nothing said or produced at the disciplinary hearing shall be disclosed to any person who has not attended the disciplinary hearing until the termination of any criminal investigation or prosecution or until further order of the Court; and 

(d)     that any recording of the disciplinary hearing shall not be transcribed without the agreement of the second and third Plaintiffs or until further order of the Court."

5.        On 20^th August the Court gave the reasons for its decision.  That judgment has not yet been published because to do so would negate the effects of the undertakings but it will be published once any criminal proceedings are resolved or it is decided not to prosecute.  However we can quote one paragraph of the judgment as follows:-

"19.       We remind ourselves that the test is whether there is a real (the burden being on the plaintiffs) rather than a notional danger of a miscarriage of justice in any criminal proceedings if the disciplinary hearings proceed.  The Court has received solemn undertakings from the Deputy Chief Officer that the contents of the disciplinary hearings will be known only to the three senior police officers whom he has named and a senior civil servant and that none of them will disclose anything which takes place at the hearings.  A breach of an undertaking to the Court may of course amount to a contempt of court.  The additional undertaking requested by the Court is aimed at preventing any inadvertent disclosure by reason of the process of transcription of any record of the hearings.  In our judgment we are entitled to rely upon the solemn undertaking given by such a senior officer.  In the face of that undertaking we cannot possibly say that there is a real danger of leakage with a consequent risk of injustice."

6.        The disciplinary hearing duly took place on 10^th August.  Only those referred to in the undertaking were present.  The Chief Officer and Mr Littler have sworn affidavits as to what occurred both during and after the hearing and their evidence has not been challenged. 

7.        Paragraph 1.6.5 of the Civil Service Disciplinary Procedures ("the Procedures") requires an employee who has been subject of a disciplinary hearing to be given written notification of the outcome.  Paragraph 1.6.5. reads as follows:-

"Notification of outcome of disciplinary interview/hearing

Following the interview/hearing, the employee will be given written confirmation of the outcome within five working days.............

The letter will state the grounds for the decision, any additional information relevant to the outcome such as the duration and conditions of a warning, and detail the right to appeal and how this may be exercised."

Paragraph 2.3 of the Procedures is to broadly similar effect but also provides that the letter which is sent to the employee must contain a summary of the facts and certain other matters. 

8.        At the commencement of the disciplinary hearing Mr Littler ran through the procedure to be followed using an explanatory note prepared by his department.  That note included a reference to the need to explain to the parties - and the evidence of both the Chief Officer and Mr Littler was that Mr Littler did indeed inform the Representor and his representative - that a letter notifying him of the outcome of the hearing would be sent to him in accordance with the Procedures. 

9.        Following the hearing, a very short letter was sent by the Chief Officer and Mr Littler on 10^th August simply notifying the Representor of the outcome.  It stated that a longer letter would follow.  The Chief Officer then wrote out in longhand a letter setting out the various matters required by the Procedures.  Not surprisingly, the Chief Officer does not type his own documents.  He directed his mind as to whom he should ask to type the letter.  He decided to give it to a confidential typist within the Professional Standards Department ("PSD"), which is the department which deals with any alleged departure from the required standards by police and civilian staff at Police Headquarters.  The PSD had received and processed the material which formed the basis of the disciplinary proceedings concerning the Representor.  Members of PSD were therefore already aware of the content of that material and the recollection of the Chief Officer is that the confidential typist whom he chose was involved in the compilation of the files for the disciplinary proceedings.  Furthermore, because of the nature of her role, the typist was expected to maintain the highest standards of confidentiality. 

10.      The Chief Officer took legal advice from the Law Officers' Department prior to sending the letter.  This resulted in the insertion of a paragraph to the effect that the letter did not constitute disclosure for the purposes of the undertaking and the information contained in the letter was not to be made available to any other person save for the Representor's representatives and/or legal advisers.   The letter was sent on 12^th August.

11.      The letter largely rehearsed the nature of the case against the Representor.  As already stated, this had already been set out in writing prior to the undertaking being given.  Disclosure of these matters was not a breach of the undertakings.  However, in the fourth paragraph of the letter, a reference is made to the case which the Representor had put forward in response to the allegations.  The remainder of the letter dealt with the panel's reasons for its conclusion.   The letter was signed by the Chief Officer and Mr Littler.

12.      On 27^th August the Representor wrote a long letter to the Chief Officer.  Much of this was concerned with criticism of the way in which matters had been handled but he did reiterate the general nature of his defence in certain respects on page 3 of the letter.  He copied the letter to Senator Kinnard, President of the Home Affairs Committee, and he did not ask her to keep the contents of the letter confidential. 

13.      The Representor noticed that the letter of 12^th August contained a second set of initials at the top of the letter as well as those of the Chief Officer.  He guessed that these must be the initials of the typist and, on 12^th September, he wrote to the Chief Officer asking who had typed the letter and pointing out that he did not recognise the initials as being those of anyone who had been present at the disciplinary hearing.  The Chief Officer replied on 20^th September confirming that the letter had been typed by the confidential typist in the PSD and that, by virtue of her role, she was already acquainted with the facts of the case. 

14.      A month later, on 13^th October the Representor presented a representation to the Court alleging that the Chief Officer and Mr Littler were in contempt of court.  The representation contained a prayer that the Chief Officer and Mr Littler should be prohibited from disclosing the contents of the representation to any person other than their legal advisers. 

15.      At the hearing, Mr Hawgood sought an order that the Court should sit in private.  Mr Blakeley took a different approach to that foreshadowed in the prayer of the representation and argued that the hearing should be in public but that the media should be prohibited from reporting certain matters so that the risk of prejudice which had led him to issue the order of justice proceedings should not materialise.  A representative of the Jersey Evening Post was in Court and he also submitted that the Court should not sit in private. 

16.      We fully accept the importance of cases being heard in public and that cases should only be heard in private when it is necessary to do justice in the exceptional circumstances of the case.  See Jersey Evening Post Limited -v- Al Thani [2002] JLR 542.  But we did not consider Mr Blakeley's suggestion to be practical.  Inevitably, during the hearing, it was likely that references would have to be made to the underlying facts of the case.  Furthermore there were bound to be interchanges between the Court and counsel with a view to clarifying the issues and testing counsel's propositions.  Some oral debate would probably have to touch on the underlying facts as well as other matters.  It would be impossible to make rulings, as the Court went along, as to which parts could be published and which could not; nor would it be possible at the conclusion of the hearing.  The underlying rationale of the Representor's original order of justice was that the disclosure of the allegations, the nature of his response to those allegations and the outcome of any disciplinary hearing might prejudice any future criminal proceedings, should they take place.  We concluded that, if the media were to be present during the hearing of the representation, there was a substantial risk that some of the material which the Court had striven, at the request of the Representor, to keep confidential by means of the undertakings, would fall into the public domain, thereby potentially prejudicing the Representor's position should any criminal proceedings arise.  We therefore decided that the interests of justice required that the hearing should be in private.  We were however conscious that the case raised issues of some importance and hence this judgment is being made public albeit that we have omitted some material which might otherwise have been included in order to ensure that no prejudice arises from publication of this judgment. 

17.      We had originally intended not to identify the Representor.  However because of his decision to press for this case to be listed and heard in public, the Jersey Evening Post was present when the application to sit in private was made and as a result, has already published a report identifying the Representor as the person who is alleging contempt of court against the Chief Officer.  Mr Blakeley has submitted that, despite this, the Representor should not be identified but should be referred to simply as T.  The Court does not agree.  Given that the Representor has already been publicly identified, there is no point in our proceeding as originally intended and we have therefore identified the Representor in this judgment.  However, we have endeavoured not to go into any factual detail concerning the allegations, the outcome of the disciplinary hearing etc.  We consider that publication of this judgment would not prejudice the Representor in any criminal proceedings which may ensue in the future.

Was there a breach?

18.      Mr Blakeley submitted that there were breaches of undertakings (c) and (d).  There was a breach of undertaking (c) because the Chief Officer had supplied his handwritten draft of the letter of 12^th August to the confidential typist for typing.  The letter contained references to what the Representor had said in his defence at the disciplinary hearing and this amounted to a disclosure of something said at the hearing to someone other than the persons who had attended the hearing.   He originally submitted that the letter of 10^th August, which was typed by the same typist and merely informed the Representor of the outcome, was also a breach of undertaking, but he withdraw that submission during the course of the hearing.

19.      He submitted that there was also a breach of undertaking (d).  The typing of the letter amounted to transcription of a recording of the disciplinary hearing.  He referred to Collins concise English dictionary which defines 'recording' as 'the act or process of making a record especially of sound on a gramophone record or magnetic tape'.  He argued that the handwritten letter of the Chief Officer was a 'recording' of the disciplinary hearing and the typing of it amounted to 'transcription'. 

20.      Mr Hawgood, on the other hand, submitted that there was no breach of either undertaking.  As to undertaking (c), it had to be implied that the Chief Officer could dictate a letter communicating the outcome of the disciplinary hearing to the Representor without breaching the undertaking; how otherwise was he to communicate the outcome?  As to undertaking (d), no recording of the hearing was made.  It was not taped.  The Chief Officer's letter did not amount to a 'recording' of the hearing.

21.      In our judgment there was a breach of undertaking (c).  It is true that, in many circumstances, a disclosure by the Chief Officer within the police service (e.g. to another police officer or to a secretary) would not amount to a breach of an order for non disclosure.  The mischief being restrained in those circumstances would be disclosure outside the police force.  But undertakings or injunctions have to be read in context.  It is clear from the undertakings in this case that the Court was concerned to prevent disclosure to anyone other than those listed persons who were to attend the disciplinary hearing.  Thus undertaking (b) listed the four persons who would be present (other than the Representor and his advisers).  Undertaking (c) is very specific and prohibits disclosure to any person who did not attend the hearing i.e. to anyone other than the four persons listed in undertaking (b).  The confidential typist in the PSD was not one of those named at undertaking (b) and did not attend the hearing.  It would therefore be a breach of undertaking (c) to disclose to her anything said or produced at the hearing.  The Chief Officer's letter, whilst mostly concerned with the outcome, did refer in passing to what was said in his defence by the Representor at the hearing and accordingly the disclosure to the confidential typist of that aspect was a breach of undertaking (c). 

22.      However we do not consider that there has been a breach of undertaking (d).  A 'recording' of the hearing suggests some form of record of what was said at the hearing.  There was no such record.  All that happened in this case was that, in the course of drafting a letter notifying the Representor of the outcome, the Chief Officer referred to some matters which had been mentioned at the hearing.  We do not consider that this can be categorised as a recording of the hearing.  All that is prohibited by undertaking (d) is a transcription of a 'recording'.  Given our finding that there was no recording, there can be no breach of undertaking (d). 

The mental element necessary for there to be a contempt of court

23.      Mr Hawgood submitted that, even if we found that there had been a breach of one or more of the undertakings, this would not amount to contempt of court because there was no intention on behalf of the Chief Officer or Mr Littler to breach the undertaking.  He accepted that the weight of English authority was against him but argued that Jersey law did not need to follow English law in this respect; that the two Jersey cases on the topic were inconsistent; and that it was preferable in logic and principle for the Court to hold that a person must intend to breach a court order or undertaking in order for there to be a contempt of court. 

24.      The position in English law is clear.  It is conveniently summarised in  Arlidge, Eady and Smith on Contempt (2^nd Edition) p754:-

"12-71         Warrington J expressed the principle in Stancomb -v- Trowbridge Urban District council: "if a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach of the injunction and is liable for process of contempt, if he or it in fact does the act, and it is no answer to say that the act was not contumacious in the sense that, in doing it there was no direct intention to disobey the order."

That this expresses the true position has since been confirmed by the Court of Appeal and also by the House of Lords in Heatons Transport (St Helens) Ltd -v- TGWU, in Director General of Fair Trading -v- Pioneer Concrete (U.K.) Ltd and in Re M.  Motive is immaterial to the question of liability. 

12- 72   What was traditionally required was to demonstrate that the alleged contemnor's conduct was intentional (in the sense that what he actually did, or omitted to do, was not accidental); and secondly that he knew the facts which rendered it a breach of the relevant order or undertaking.  He must be shown to know the existence of the order and, as has already been pointed out, he must be shown to have been served with the order...........

12-73   Yet there is no need to go so far as to show that the respondent realised that his conduct would constitute a breach, or even that he had read the order.  This means that liability for civil contempt has been treated as though it were strict; that is to say, not depending upon establishing any specific intention either to breach the terms of the order or to subvert the administration of justice in general."

25.      Arlidge refers in the above passage to Re M.  This was primarily concerned with whether the Home Secretary could be in contempt.  The House of Lords held that he could be and that he was in contempt even though he had acted in good faith on legal advice.  Lord Nolan, at  (1993) 3 All ER 568 quoted with approval from the dictum in AG -v- Times Newspapers Limited (1991) 2 All ER 398 414 where Lord Oliver said:-

"One particular form of contempt by party to proceedings is that constituted by an intentional act which is in breach of an order of a competent court.  Where this occurs as a result of an act of a party who is bound by the order or by others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and can be waived by him.  The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited."

26.      It is true that the authors of Arlidge go on to refer to the case of Irtelli -v- Squatriti (1993) QB 83 where the Court of Appeal appears to have suggested that, in order to prove contempt, it had to be shown that the appellants 'did intend to act in contempt of the court's authority' or that they 'knowingly breached the court order'.  However none of the authorities referred to in the extract from Arlidge set out at paragraph 24 above were cited to the Court of Appeal and its decision appears to be quite inconsistent with House of Lords authority. 

27.      We were referred to two Jersey cases where this issue has been touched upon.  In Skinner -v- Le Main (30th April 1990) Jersey Unreported; [1990/60] the Court was considering an alleged contempt  by a breach of injunction and said this at page 6 of the judgment:-

".................. we had never understood that 'mens rea' was required.  As Sachs J said in Knight -v- Clifton (1971) 2 All ER 378 at 393:-

"It is my view that when an injunction prohibits an act, that prohibition is absolute and is not to be related to intent unless otherwise stated on the fact of the order."

That approach appears to be entirely consistent with the English position. 

28.      In Rowbotham -v- Stilwell (9th June 1994) Jersey Unreported; [1994/114], in a case concerning alleged contempt by refusing access to children in breach of an order for access, the Royal Court said at page 3:-

"A refusal to accord any access pending agreement on terms wholly different from those which have operated for some considerable time is a failure to abide by the order of the court.  That does not however mean that the respondent is necessarily in contempt; as Advocate Begg rightly submitted, we need to be satisfied beyond reasonable doubt that there was a wilful or deliberate refusal to obey the order of the court."

This comment is clearly inconsistent with the English position as we have described it.  However, no authority was cited to the Royal Court by counsel in that case; in particular the position under English law was not drawn to the Court's attention, nor was Skinner -v- Le Main.

29.      In the light of these conflicting approaches, the Court must consider the position afresh.  We are in no doubt that Jersey law should adopt the same approach as English law.  It is of the first importance that orders of the Court should be obeyed.  This is not for the purpose of upholding the Court's dignity.  The Court makes orders because it believes them to be in the interests of justice.  If parties are to be able to rely upon the Court resolving disputes between them, they must have confidence that orders will be enforced.  If it is open to a party to argue that, although he has failed to comply with the Court's order, he did not mean to breach the order, there would be endless scope for argument and for parties to try and get out of their obligation to obey the order.  To take a typical example, the Court often grants an injunction against a violent husband restraining him from coming within, say, 50 yards of the wife's home.  It would substantially detract from the protection which the Court is able to offer such a wife if a husband who is found within 40 yards of the home is able to submit that he is not in contempt because he did not realise that the spot where he was loitering was 40 yards rather than 50 yards away; he did not therefore intend to breach the order.  Far better for there to be an absolute rule that orders must be obeyed with mitigation being available as necessary where the breach was not deliberate.   The policy considerations which have led the English courts to adopt the approach which they have are equally applicable in Jersey. 

30.      In summary, the question of whether or not a contempt by reason of a breach of a court order has been committed involves an essentially objective test requiring the determination of whether or not the alleged contemnor has acted in a manner constituting a breach of the order.  If he has, then a contempt will be established, regardless of whether or not he acted contumaciously or with the intention of breaking the order, although whether any, and if so what, punishment ought to be imposed on him will, or may be, materially dependent on considerations of this sort. 

31.      Both parties agreed that breach of an undertaking may amount to a contempt in exactly the same way as a breach of a court order (see Rahman -v- Chase Bank (CI) Trust Company Limited [1990] JLR 59.

Application to the facts

32.      The Court accepts without reservation that the Chief Officer did not intend to breach undertaking (c).  He believed that merely providing to his confidential typist a handwritten letter which was concerned predominantly with the outcome of the hearing, did not amount to a breach of the undertaking.  However the act i.e. the disclosure of the draft letter to the typist, was deliberate (i.e. not accidental) and we have held that it did constitute a breach of the undertaking.  In the circumstances, contempt of court is established notwithstanding that he did not believe he was breaching the undertaking.

33.      The disclosure was made by the Chief Officer to the confidential typist.  Mr Littler approved the letter and may be said to have ratified the disclosure to the typist; but he did not make any disclosure himself and therefore we do not find contempt proved against him. 

34.      The Chief Officer made every effort to avoid breaching the undertaking.  He applied his mind to the matter; he chose the typist carefully with a view to ensuring confidentiality; and he took legal advice from the Law Officers before despatching the letter.  He had to send the letter if he was to comply with the Procedures.

35.      It is therefore a contempt of the most technical and nominal variety.  Had it been realised at the time of the hearing before the Court on 6^th August that, in order to notify the Representor of the outcome of the disciplinary hearing in sufficient detail to comply with the requirements of the Procedures, it would be necessary for the Chief Officer to disclose matters to a typist who would type the letter, we have absolutely no doubt that the Court would have adjusted the undertakings in order to ensure that this process could take place.  The manner in which the undertaking was drawn in effect required the Chief Officer to write out the letter in longhand or type it himself, simply in order to communicate the outcome to the Representor in accordance with the Procedures.  This was clearly unreasonably restrictive. 

36.      Furthermore, the level of possible prejudice caused by reason of the breach was almost non existent.  The typist in question worked in a highly confidential department where confidential matters no doubt came across her desk every day.  Furthermore she was already familiar with the vast bulk of the material.  In addition there is no evidence that there has in fact been any leakage of the contents of the hearing or the letter as a result of her becoming aware of its contents.

37.      On the contrary, having been so keen to preserve absolute secrecy at the time of the hearing on 8^th August, it is the Representor who subsequently sent a letter to Senator Kinnard which disclosed something of the nature of his defence without imposing any restriction on further dissemination of its content by the Senator.  In addition, it was at the Representor's request that the hearing of this application was listed in public and the application for a hearing in private was heard in public.   Thus the identity of the Representor has become known and has been published in the Jersey Evening Post.

38.      The Court is in no doubt that it would be completely inappropriate to impose any penalty whatsoever on the Chief Officer for this minimal and highly technical contempt of court.  We repeat that we accept the Chief Officer did his best to comply with the undertaking and did not believe that he was breaching it, having taken legal advice. 

39.      As to costs, the Representor has been successful in establishing a breach of undertaking (c) but has failed in his allegation of a breach of undertaking (d).  Given our findings and given the fact that the Representor himself has disclosed matters to Senator Kinnard and others, it is perhaps surprising that the Chief Officer's breach of the undertaking by arranging for his confidential secretary to type up the letter, was brought to Court at all.  Normally, where a representor succeeds in proving contempt of court, costs are likely to follow the event, possibly on an indemnity basis, depending upon the circumstances.   However, at one stage, I was minded not to award the Representor his costs at all in order to mark the fact that the contempt in this case should not really have been brought to the Court's attention.  However, on reflection, I conclude that a fairer award to reflect that the Representor has been partially successful and that Mr Hawgood's submission as to the necessary mental element for contempt of court has failed, is to award the Representor half of his costs on the standard basis.

Authorities.

Jersey Evening Post Limited -v- Al Thani [2002] JLR 542.

Arlidge, Eady and Smith on Contempt (2^nd Edition) p754.

AG -v- Times Newspapers Limited (1991) 2 All ER 398 414.

Irtelli -v- Squatriti (1993) QB 83.

Skinner -v- Le Main (30th April 1990) Jersey Unreported; [1990/60] Jersey Unreported.

Rowbotham -v- Stilwell (9th June 1994) Jersey Unreported; [1994/114].

Rahman -v- Chase Bank (CI) Trust Company Limited [1990] JLR 59.