Case No: 2000/0253/B1
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL  DIVISION)
ON APPEAL FROM THE ORDER OF
HIS HONOUR JUDGE MOSTYN QC
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 7 April 2000

B e f o r e :

LORD JUSTICE SIMON BROWN
and
LADY JUSTICE HALE
 
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	SAMANTHA GRIFFIN	Claimant/Respondent	
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	LAWRENCE DAVID  GRIFFIN		Defendant/Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
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Miss Cheryl Jones (instructed by  Messrs Debo & Co, London N4) for the Apellant)
Miss Delphine Breese-Laughran (instructed by  David Levene & Co, London N2)  for the Respondent)
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Judgment
As Approved by the Court

Crown Copyright ©

Lady Justice Hale:
1. This case raises a difficult question concerning the terms upon which the court may suspend an order for committal for contempt of court. In short: is an order suspended for so long as the contemnor complies with another order of indefinite duration invalid?

2. On 15 March 2000, Assistant Recorder Mostyn QC, sitting in the county court jurisdiction of the Principal Registry of the Family Division, committed the appellant to prison for a total of six months, made up of two consecutive terms: (1) four months for breaches committed on 29 October 1999 of an order under Part IV of the Family Law Act 1996 made by His Honour Judge Downes on 1 June 1999; and (2) two months under a suspended sentence, also imposed by His Honour Judge Downes on that date, activated because of a breach of the same order committed on 18 June 1999. 

3. The appellant and respondent married on 28 December 1994. They have two daughters, one now nearly six and the other just four. A psychiatric report reveals that the appellant has a long history of anxiety and depression with some psychotic symptoms and a very long history of drug abuse and misuse of alcohol. Proceedings between them began with Family Law Act orders with a power of arrest made on 10 June 1998. Thereafter there were four arrests and four committal hearings, two of which resulted in suspended committal orders, although the parties did not finally separate until February 1999. 

 4. On 1 June 1999 there was a fifth committal hearing. His Honour Judge Downes found proved two separate breaches of the most recent order, made by His Honour Judge Callman on 4 February 1999. He ordered that the appellant

	'. . . be committed for contempt to prison for a total period of 2 months. The order is suspended and will not be put into force if and so long as the contemnor complies with the following terms: the respondent complies with the terms of the non-molestation and occupation orders of even date.'

5. The order is internally inconsistent in that the record of contempts proved imposes concurrent penalties of one month's imprisonment for each breach, but it is clear from the transcript of the judgment that His Honour Judge Downes intended to impose two months' imprisonment for each breach and no point is now taken upon that. 

6. The non-molestation and occupation orders made that same day were expressed to last 'until further order of the court' although the power of arrest which was attached to all the substantive prohibitions in the order was to last until 1 December 1999. Hence the term of imprisonment was effectively suspended indefinitely.  

7. On the afternoon of 29 October 1999 an incident took place outside a public house involving the respondent wife, her new partner Andrew Ross, the two little girls, and the appellant. The police were called and the appellant was arrested both for breach of the Family Law Act orders and for various criminal offences. Next day His Honour Judge Levy attended at Paddington Green Police Station for a committal hearing. He adjourned it to 1 November and remanded the appellant in custody. 

8. The matter came before Assistant Recorder Mostyn QC on 1 November. The wife had filed an affidavit of that date. This dealt in detail with the events of 29 October and mentioned some of the background but did not deal with all the alleged breaches which had taken place since 1 June 1999. The matter was adjourned for 24 hours to allow her to serve a Notice to Show Cause detailing her additional allegations later that day. That Notice dealt, among other things, with an alleged breach on 18 June 1999. 

9. The matter came back before Assistant Recorder Mostyn QC on 2 November. He adjourned the committal application until 13 March 2000 and released the appellant on conditional bail until then. The parties were ordered to file their own affidavits and those of any witnesses upon whom they intended to rely on or before 16 November 1999. Neither party was to call any witness who had not made an affidavit so filed and served. The tape of the police interview of the appellant was to be transcribed, agreed, filed and served. A further order under the Family Law Act with power of arrest was made until 13 March 2000. 

10. The appellant filed his own affidavit, dated 15 November 1999, and another from a friend who had been with him on 29 October 1999. The respondent wife did not file any more evidence until March 2000. She then filed two affidavits dated 3 March 2000, one dealing with events before 2 November 1999, and one dealing with events after. She also filed affidavits from Andrew Ross, her mother, her sister, and a friend.  

11. The hearing took place on 13 and 14 March 2000 before Assistant Recorder Mostyn QC (sitting as a Deputy High Court Judge but not on this occasion exercising the High Court jurisdiction). Objection was taken to the late filing of the respondent's evidence and the judge excluded the affidavits from the respondent's mother, sister and friend. An objection to the interview transcript was withdrawn. The judge heard oral evidence from the parties and from Andrew Ross. Objection was taken to Mr Ross's evidence and the judge excluded certain parts of it which were new but admitted those parts dealing with events of 29 October 1999 which in his view contained no element of surprise as the essence had been put to the respondent during his police interview. The judge found the alleged breach on 18 June 1999 and some of the allegations about the incident on 29 October 1999 proved. 

12. On 15 March 2000, having heard argument about the validity of the suspended committal order made by His Honour Judge Downes, the judge made the committal orders but stayed them for 14 days pending an appeal. The appeal came before this Court on 28 March 2000, when it was dismissed for reasons to be given later.  

13. Miss Jones, on behalf of the appellant, has attacked both parts of the order, but the attack on the first can be dealt with shortly. She complains that the judge should not have admitted the late filed evidence, as to the incident on 29 October 1999, and in particular the oral evidence of Mr Ross. However, as the account given above shows, the judge gave careful consideration to the extent to which the appellant might have been prejudiced by the late filing of evidence. He excluded some of this evidence even though it concerned allegations already dealt with in some detail in the Notice to Show Cause and had been served more than a week before the hearing. This was pre-eminently a matter for the trial judge and there is no basis for the suggestion that the appellant did not receive a fair trial as a result. 

14. The same applies to the first ground upon which the second part of the order, the activation of the suspended sentence, is impugned. The respondent's first affidavit, dated 1 November 1999, dealt with the events surrounding the appellant's arrest on 29 October, but not with the other specific incidents between 1 June 1999 and that date which were contained in the Notice to Show Cause. These, including the incident on 18 June 1999 which the judge found proved, were dealt with in her affidavit of 3 March 2000 and her oral evidence. The Rules of the Supreme Court, Ord 52, rule 4(2), require that the notice of motion, stating the grounds of the application 'and accompanied by a copy of the affidavit in support' must be served personally upon the person sought to be committed. Ord 52, rule 4(3), allows the court to dispense with service of the notice of motion if it thinks it just so to do. The County Court Rules, Ord 29, rule 1(4), require the proper officer, at the request of the judgment creditor, to issue a notice which must be personally served. Under Ord 29, rule 1(4A)(c), the request must be supported by an affidavit stating the grounds on which the application is made. Ord 29, rule 1(7), allows the court to dispense with service of the notice if it thinks it just and proper so to do. If the court is able to dispense with service of the notice it must be able to allow later service or amendments to the supporting affidavit. The touchstone is whether the person sought to be committed has had a fair trial: has he had proper notice of the allegations which he has to meet, the opportunity of considering and challenging the evidence upon which those allegations are made, and the opportunity of calling his own evidence in rebuttal? In this case, the answer to all of those questions is clearly 'yes'.

15. Miss Jones' other ground of challenge, however, is more difficult. The power to suspend committal orders is dealt with in the Rules of the Supreme Court 1965, Ord 52, rule 7(1) (which is expressly applied to the enforcement of orders made on applications under Part IV of the Family Law Act 1996 by the Family Proceedings Rules 1991, rule 3.9A(5)(a)). This reads: 

	'The Court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify.'

16. In Bluffield v Curtis [1988] 1 FLR 170, this court allowed an appeal against an order which was suspended without reference either to a period of suspension or to the terms and conditions upon which it was suspended, the contemnor having by then complied with the terms of the order which he had broken.
 
17. There can be little doubt that if the appellant in this case had appealed to this court against the order made by His Honour Judge Downes, he would have succeeded, at least to the extent that this court would have set a fixed limit to the term for which the suspended sentence would be hanging over his head. In Pidduck v Molloy [1992] 2 FLR 202, the trial judge had made an order in essentially the same terms as the present, suspended for 'so long a period as the defendant complied with the terms of the new injunction'. Lord Donaldson of Lymington MR, at p 205, said this:

	'The first point which is taken is that it is not right to suspend a term of imprisonment for an indefinite period. It is accepted by Mr Smith on behalf of the defendant that suspension for a period of 12 months would be reasonable, but it is said by Mr Sasse that that should have been 2 years. It is certainly right that a sentence of imprisonment has to be suspended for a finite period and on the facts of this case I think that an appropriate period would be 12 months.'

18. Section 13 of the Administration of Justice Act 1960 provides for appeals from any order or decision of a court in the exercise of jurisdiction to publish for contempt of court and in subsection (3) that the appeal court may reverse or vary the decision of the court below. This not only permits substantive variations of the order but also, in appropriate cases, enables the court to cure procedural defects both preceding and following the making of a committal order: see Nicholls v Nicholls [1997] 1 WLR 314, CA. However, the court hearing an application to activate a suspended committal order does not have the powers of a court of appeal from that order. The Assistant Recorder in this case could have varied the linked Family Law Act order so that it ran for a definite period, but he could not thereby validate the suspended committal order if that order was itself invalid.

19. There is, however, an important distinction between an order which the court in the exercise of its discretion ought not to make, and an order which is invalid because the court has no power to make it. In saying that a sentence of imprisonment 'has to be' suspended for a finite period, Lord Donaldson doubtless had in mind the statutory power to suspend sentences of imprisonment imposed in criminal cases. This was first introduced by section 39 of the Criminal Justice Act 1967:

	'A court which passes a sentence of imprisonment for a term of not more than two years for an offence may order that the sentence shall not take effect unless, during the period specified in the order, being not less than one year and not more than three years from the date of the order the offender commits in Great Britain another offence punishable with imprisonment . . . '  

20. There is ample authority, in reserved judgments of the Court of Appeal, that section 39 (or its amended successor in section 22 of the Powers of Criminal Courts Act 1973, which among other things reduced the maximum period of suspension to two years.) which does not apply to committal for contempt of court, whether that contempt is criminal (see Morris v Crown Office [1970] 2 QB 114, CA) or, as here, civil (see Lee v Walker [1985] QB 1191, CA) in nature. 

21.The power to commit to prison for contempt of court is a common law power which has never been fully regulated by statute or even by rules of court. The committal itself could be for an indefinite duration until the maximum term of two years was set by section 14(1) of the Contempt of Court Act 1981. Before then, it was a common practice to commit a contemnor for an indefinite period until he had purged his contempt. The power to suspend a committal order was not mentioned in the Rules of the Supreme Court 1883. The Rules of the Supreme Court 1965 ended the confusing distinction between enforcement by writ of attachment and enforcement by committal (see the 'unhappy' history set out in the Annual Practice 1965, vol 1, pp 1071 et seq) and provided only for committal. The learned editors of the Annual Practice 1967 explain (at p 687), of Ord 52, rule 7, 'This rule is new though it states the practice'. In Lee v Walker [1985] 1 QB 1191, at pp 1199 - 1200, Cumming-Bruce LJ, giving the judgment of the court, stated:

	'We do not accept that RSC, Ord 52, r 7 conferred a new jurisdiction upon the High Court. In our view the context of the rule was procedural, and prescribed the procedure for the exercise of a power of suspension of committal orders which has never been doubted.'

22. He went on to explain that one way of doing this was to direct that the order should lie in the office for a stated time and should not issue if the contemnor complied with the stated conditions within that time. That method would not, of course, be apt to deal with a condition, such as the one in this case, that the contemnor refrain from certain activities. Other methods are explained by Lord Denning MR in Morris v Crown Office [1970] 2 QB 114, at p 125. The Court also held in Lee v Walker that a county court had the same powers of suspension as did the High Court.  

23. There is nothing in the notes dealing with committal in the earlier editions of the Annual Practice, or in the later notes to Ord 52, rule 7, to suggest that it was the invariable practice to suspend only for a finite period. Indeed, the only relevant case cited in the current notes is Re W(B)(An Infant) [1969] 2 Ch 50, CA. The order in that case was for committal for six months, suspended for as long as the contemnor obeyed an injunction to keep away from a ward of court. That injunction was of unlimited duration, although it would inevitably end when the ward reached the age of majority. The case is important for current purposes because it decided that the judge hearing an application to activate such a suspended sentence has a discretion whether or not to do so and may substitute some alternative penalty instead. 

24. Against that background, it is most unlikely that Lord Donaldson in what appears to have been an unreserved judgment in Pidduck v Molloy [1992] 2 FLR 202 meant to say that an order such as this is invalid. It is much more likely that he was expressing what is now, in the light of the introduction of suspended sentences in the criminal law, the generally accepted view, that an offender should not have such a sentence hanging over him indefinitely. The extract quoted above suggests that argument was directed to the length of the suspension rather than to the validity of the order. Ord 52, rule 7 is not mentioned.

25. Pidduck v Molloy has been applied in at least two unreported decisions of this Court: Hill v Hay, 4 November 1993, and Rigby v Hudson, 15 December 1994. Both of these were appeals against the suspended order itself and did not take the jurisdictional issue any further. Both emphasised that the purpose of imprisonment for contempt is two-fold: to punish past disobedience and to encourage future obedience. In Hill v Hay, Leggatt LJ emphasised the former, and observed that where there is no continuing relationship between the parties it is important that the defendant know for how long he will remain subject to the committal. Rigby v Hudson, on the other hand, was a harassment case in which Balcombe LJ emphasised the latter purpose. In that case, the committal was suspended for five years. Neither of these cases is inconsistent with the view that an order such as was made in this case can but in general should not be made.   

26. Ord 52, rule 7(1) is expressed, as Assistant Recorder Mostyn QC pointed out, in the alternative. On the face of it, the order in this case could fall within either. It was for a 'period', albeit a period specified by reference to the contemnor's good behaviour. It was also upon specified terms. Following the views expressed in Bluffield v Curtis [1988] 1 FLR 170 and Pidduck v Molloy [1992] 2 FLR 202, most such orders are now made for a fixed period and on terms. It would be odd indeed if the use of the word 'or' between 'for such period' and 'on such terms' were thought to exclude what is now the general practice with negative conditions of this sort. 

27. I would not, of course, wish to cast doubt upon the consistent line of authority that orders should not, as a matter of practice, be suspended indefinitely. However, the reasons for setting a finite limit in ordinary criminal cases are not so powerful here. The order will only be activated if the contemnor fails to comply with what should be a precisely defined order: the problem in criminal cases (before suspension became exceptional) was that it might be activated on the commission of any prisonable offence, no matter how minor or how unrelated to the matter for which the suspended sentence had been imposed. 

28. Furthermore, if an order such as the one in this case does give rise to any injustice, there are at least three opportunities to cure it. First, the contemnor may appeal against the order and the Court of Appeal may set an appropriate limit to the suspension. If such an order were indeed invalid he would be better advised to do nothing at all. Although the applicant for committal also has a right of appeal it is quite unreal to expect her to do so unless she wishes to argue that the order should not have been suspended at all, or should have been suspended for longer, or should have been for a longer term. Secondly, at least in Family Law Act and similar cases, a later court may vary or discharge the order to which the suspended committal is linked, thus setting a limit to the suspension. Thirdly, these orders are not activated automatically but only upon application to the court. The court hearing such an application has a discretion: it can ask itself, as did the Assistant Recorder in this case, what would have been an appropriate limit to the suspension. If the alleged breach falls outside that limit then the order will not be activated. If it falls within it, then it may be. 
                  
29.In this case, the breach took place within 18 days of the order. Had His Honour Judge Downes set a term to the suspension it would inevitably have been much longer than that. The Assistant Recorder was entirely right to hold that there had been no injustice to the appellant. There would, indeed, have been considerable injustice to the respondent had it not been possible to bring this committal into effect. 

30. For those reasons, this appeal should be dismissed.     

Lord Justice Simon Brown:
31. I agree.
Order:  Appeal dismissed.  Minute of order to be prepared by Counsel.
(Order does not form part of the approved judgment)