CEDH · CASELAW;COMMUNICATEDCASES;ENG — 15 mars 2012

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He was represented before the Court by Mr A. Guile, a solicitor practising in London. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1. The background facts On 26 and 27 July 2005 His Honour Judge Collins, sitting in the Central London Civil Justice Centre , heard two applications concerning the applicant. The first was an application by him 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 December 2004 and for breach of an order made by the Woolwich County Court on 23   February 2005. The judge chose to hear both applications at the same time. The applicant was unrepresented during the proceedings before Judge Collins. His legal aid certificate had been withdrawn following a financial award which he had received in prior divorce proceedings. His position concerning legal aid was due to be reviewed shortly after the hearing. The judge made no inquiries into why the applicant was unrepresented and whether he wanted representation. On 27 July 2005 the judge made an order for indirect contact. He also committed the applicant to prison for three months, finding that the allegations by his former wife that he had breached the undertaking and the order had been made out. The applicant contacted lawyers from prison but, having accepted instructions, they failed to assist him. He subsequently lodged a complaint against them and received GBP 500 in compensation. The applicant was released, after six and a half weeks’ imprisonment pursuant to provisions permitting early release, on 9 September 2005. 2. The domestic proceedings (a)     The appeal against the contempt finding After his release from prison, on around 14 September 2005, the applicant lodged an appeal out of time against the finding that he had been in contempt of court. He subsequently obtained legal aid and legal representation to pursue those proceedings. On 23 March 2007 the Court of Appeal set aside the finding of contempt and overturned the sentence imposed. Lord Justice Moses began by setting out a number of well-established principles relevant to committal hearings. He noted that such proceedings concerned a “criminal charge” for the purposes of Article 6 of the Convention and that the defendant therefore benefitted from the right to legal assistance set out in Article 6 § 3 (c). He further observed, referring to Article 6 § 2, that the burden of proving guilt lay on the person seeking committal. He noted that a defendant to committal proceedings was not obliged to give evidence and enjoyed a right against self-incrimination. In the applicant’s case, Moses LJ observed that these matters were not drawn to the attention of the judge. He continued: “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 ... 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.” He considered that 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 why the committal hearing should not have been adjourned until the issue of legal representation had been resolved. He was of the view that the judge was obliged to ask appropriate 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 on the part of the applicant, and he noted that there was none, there was no reason why the applicant should not be represented. Moses LJ further found that the decision to hear both applications at the same time led to inescapable errors in procedure. He noted that it was for the applicant to establish his claim for contact, and for his former wife to prove breaches of the undertaking and the court order. The applicant should have been warned that he did not need to give evidence; he received no such warning. Moses LJ continued: “15.     ... 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.” He concluded that the decision of the judge to hear both applications at the same time had placed the applicant in an impossible position, noting that there was no hint at any stage in the transcript of the proceedings of anyone advising the applicant 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. Further, the judge had given no explanation as to why he considered it essential to deal with both applications at the same time. Finally, Moses LJ considered that the judge again fell into error at the sentencing stage. He noted that the judge never paused, even at that stage, to consider whether the applicant should have legal representation or to remind himself of the relevant principles. Moses LJ continued: “20.     ... 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.” Further, in imposing a three month sentence, the judge did not have the benefit of mitigation or submissions on the applicant’s behalf as to the context in which the offensive conduct had taken place. Moses LJ then turned his mind to the question whether it was necessary for the court to consider whether legal representation would have made a difference in the applicant’s case. He commented that it was almost impossible to envisage a case where such representation would not be needed, if only, as this case demonstrated, to remind a judge of the principles which applied. He added that even in a case where a defendant admitted every breach alleged, representation would be needed so as to assist the judge in considering the appropriate disposal. However, even if such a question were necessary, he found that there was ample material to suggest that representation would have made a difference in the applicant’s case. He noted that quite apart from the question of the appropriate sentence, there was material relevant to the facts of the breaches to which the judge’s attention ought to have been drawn. Lord Justice Wall fully agreed with Moses LJ, noting: “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 ... 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 ... 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.” Specifically on the question of access to legal advice, he added: “51.     ... 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 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 ... 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.” (b)     The claim for damages On 20 March 2008 the applicant commenced proceedings for damages under common law for the tort of wrongful imprisonment and under the Human Rights Act 1998, relying on Articles 5 and 6 of the Convention. He sought an extension of time for lodging his claim. On 25 February 2009 his claim was dismissed by the High Court and the extension of time refused. However, the judge made it clear that had he considered there to be merit in the claim, he would have extended time. He therefore considered the merits of the applicant’s claim. He noted at the outset that the Court of Appeal had identified three main errors in the applicant’s case: the failure to inquire into why the applicant was not represented and to consider whether to adjourn the committal proceedings to enable him to obtain representation; the joinder of the committal proceedings and the contact order, which undermined the burden of proof and the applicant’s right not to give evidence in the committal proceedings; and the fact the applicant was not given the opportunity to mitigate before sentence was passed. He considered it plain from the judgment of the Court of Appeal that although it granted no formal declaration that the committal hearing had breached the applicant’s human rights, it considered that it did and that was the tenor of its findings. As to the false imprisonment claim, the judge referred to the long-standing recognition in the case-law that there was immunity from suit for a claim based on alleged errors of a circuit judge of competent jurisdiction that resulted in detention, in the absence of malice. The claim accordingly failed. The judge also considered hopeless the applicant’s claim that any violation of an Article 6 § 1 right resulted in a claim for damages under the Human Rights Act 1998. He referred to section 9(3) of the Act, which precludes damages in respect of a judicial act done in good faith, with the exception of damages required by Article 5 § 5 of the Convention (see “Relevant domestic law”, below). He also referred to the fact that just satisfaction under the Convention was a matter of discretion. As to the claim under Article 5 of the Convention, the judge referred to this Court’s judgments in the cases of Benham v. the United Kingdom [GC] (10 June 1996, Reports of Judgments and Decisions 1996 ‑ III), Perks and Others v. the United Kingdom (nos. 25277/94, 25279/94, 25280/94, 25282/94, 25285/94, 28048/95, 28192/95 and 28456/95, 12 October 1999) and Lloyd and Others v. the United Kingdom (nos. 29798/96, 30395/96, 34327/96, 34341/96, 35445/97, 36267/97, 36367/97, 37551/97, 37706/97, 38261/97, 39378/98, 41590/98, 41593/98, 42040/98, 42097/98, 45420/99, 45844/99, 46326/99, 47144/99, 53062/99, 53111/99, 54969/00, 54973/00, 54997/00, 55046/00, 55068/00, 55071/00, 56109/00, 56231/00, 56232/00, 56233/00, 56429/00, 56441/00, 2460/03, 2482/03, 2483/03, 2484/03 and 2490/03, 1 March 2005). He concluded that the applicant’s detention pursuant to the order of Judge Collins was not so gross or obvious an irregularity, within the meaning of § 115 of the Court’s judgment in Lloyd and Others , cited above, as to be not in accordance with the law. In reaching this conclusion, he noted, inter alia , that Judge Collins was a court of competent jurisdiction; that proper notice of the hearing and of the committal application had been given; that the record of proceedings did not appear to reveal any application by the applicant for an adjournment to seek legal representation; and that there was no hint of malice or bad faith by the judge. Having thus concluded, he nonetheless indicated that had he reached the contrary conclusion, he would have awarded damages in the sum of GBP 6,000, on an equitable basis. The applicant sought leave to appeal. On 27 August 2009 leave to appeal was refused on the papers. The judge commented that he might consider extending time if there was a real prospect of success, but in his view the judgment would be upheld. He further noted that difficulties obtaining legal aid did not provide a complete answer to a failure to keep time limits. The applicant’s legal aid was subsequently withdrawn. B.     Relevant domestic law Section 6(1) of the Human Rights Act 1998 (“the 1998 Act”) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(3) clarifies that “public authority” includes a court or tribunal and any person certain of whose functions are functions of a public nature. Section 7(1) provides that: “A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may– (a)     bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b)     rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.” Section 8 of the Act sets out available remedies and provides: “(1)     In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2)     But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3)     No award of damages is to be made unless, taking account of all the circumstances of the case, including— (a)     any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b)     the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4)     In determining– (a) whether to award damages, or (b)     the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.” However, section 9(3) limits the possibility of claiming damages where the act or failure of which an individual complains is a judicial act or failure: “(3)     In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.” Section 9(5) defines “judicial act” as a judicial act of a court, including an act done on the instructions, or on behalf, of a judge. COMPLAINTS The applicant complains that his committal to prison following the hearing in July 2007 breached his right to liberty under Article 5 § 1 of the Convention. He further complains under Articles 6 and 13 of the Convention that no remedies have been provided for the breaches of his right to a fair trial which were found by the Court of Appeal to have taken place in the committal proceedings and which resulted in his imprisonment. Finally, under Article 14 of the Convention taken together with Articles   5 and 6, he complains of discriminatory treatment in the level of damages available and the applicable limitation period under the Human Rights Act 1998 compared to an action based on the tort of wrongful imprisonment. QUESTIONS TO THE PARTIES   1.     Has there been a violation of Article 5 § 1 of the Convention? In particular, was the applicant’s detention “lawful” and “in accordance with a procedure prescribed by law” and free from arbitrariness?   2.     May the applicant still claim to be a victim of a violation of Article 6 of the Convention, within the meaning of Article 34?   3.     If so, has there been a violation of Article 6 of the Convention?   4.     Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 as required by Article 13 of the Convention?