CASE OF HAMMERTON v. THE UNITED KINGDOM
Remainder inadmissible (Article 34 - Victim);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - Competent court);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Armen Harutyunyan;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano
5. The applicant was born in 1954 and lives in London. 6. The applicant married in 1977. He separated from his wife in 2002. On 9 January 2004 he issued an application in the County Court for contact with two of his five children. 7. The applicant and his wife divorced on 27 August 2004. His legal aid certificate was withdrawn following a financial award made as part of the divorce. 8. Meanwhile the contact proceedings continued. The applicant’s former wife alleged that he had harassed her and applied to the County Court for protection. On 21 December 2004 the applicant gave an undertaking to Wandsworth County Court: “Not to contact, or communicate with, [his former wife], [her] mother or father, nor her solicitors in any way whatsoever ... except through his own solicitors.” 9. On 23 February 2005 Woolwich County Court granted the applicant’s former wife an injunction which inter alia prevented him from using or threatening violence towards her. 10. On 6 July 2005 the applicant’s former wife issued an application for him to be committed to prison for breach of the undertaking and injunction. 11. His Honour Judge Collins, sitting in the Central London Civil Justice Centre, chose to hear the applicant’s application for contact and his former wife’s application for him to be committed for contempt at the same time. He heard the applications on 26 and 27 July 2005. 12. The applicant was unrepresented during the proceedings before Judge Collins. His position as regards legal aid was due to be reviewed shortly after the hearing. The judge made no inquiries into why the applicant was unrepresented or whether he wanted representation. 13. On 27 July 2005 the judge made an order for indirect contact. He also committed the applicant to prison for three months because he had breached the undertaking and the order and was therefore in contempt of court. 14. The applicant contacted lawyers from prison in order to appeal his committal but, having accepted instructions, they failed to assist him. He subsequently lodged a complaint against them and received five hundred pounds sterling (“GBP”) in compensation. 15. The applicant was released on 9 September 2005, after approximately six and a half weeks’ imprisonment, pursuant to provisions permitting early release. 16. 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. 17. On 23 March 2007 the Court of Appeal quashed both the finding of contempt and the sentence imposed. It found that the County Court’s errors of procedure were grave ones. Lord Justice Moses, delivering the first judgment, began by setting out a number of well-established principles relevant to committal hearings. The need to observe the Human Rights Act 1998 (see paragraphs 50 to 55 below) was central to the practice direction on committal proceedings, which had applied to the proceedings before the County Court (see paragraph 41 below). Such proceedings concerned a “criminal charge” for the purpose of Article 6 of the Convention and the defendant therefore benefited from the right to legal assistance set out in Article 6 § 3 (c). A defendant to committal proceedings was not obliged to give evidence and enjoyed a right against selfincrimination and, referring to Article 6 § 2, the burden of proving guilt lay on the person seeking committal. 18. In the applicant’s case, Moses LJ observed that these matters had not been 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.” 19. Moses LJ considered that once the judge had learnt that the issue of legal aid was the subject of an imminent review panel, 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 had been 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. 20. Moses LJ further found that the decision to hear the application for committal at the same time as the application for contact 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. 21. Moses LJ 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. 22. 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. He observed that the judge had paid no heed to the purpose of punishment in contempt proceedings. Since he had not been represented and had never been given an opportunity to mitigate, the sentencing phase of the committal was “fatally flawed”. 23. Moses LJ then assessed 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. 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. The case was certainly not one where the court would decline to take action despite a violation of Article 6. There was ample material to suggest that legal representation would have made a difference. 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. 24. 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.” 25. Specifically on the question of access to legal advice, he added: “52. ... 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.” 26. 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 (see paragraphs 50-55 below), relying on Articles 5 and 6 of the Convention. He sought an extension of time for lodging his claim. 27. On 25 February 2009 the High Court dismissed his claim and refused the extension of time. However, Mr Justice Blake made it clear that had he considered there to be merit in the claim, he would have extended time. He had therefore considered the merits of the applicant’s claim. 28. Blake J 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 he 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 application, which undermined the burden of proof and the applicant’s right not to give evidence in the committal proceedings; and the fact that he was not given the opportunity to mitigate before sentence was passed. Blake J considered it plain from the judgment of the Court of Appeal that although it had granted no formal declaration that the committal hearing had breached the applicant’s human rights, it had been of the view that it had and that had been the tenor of its findings. 29. As to the false imprisonment claim, Blake J referred to the longstanding 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 applicant’s claim accordingly failed. 30. He considered equally hopeless the applicant’s claim that any violation of an Article 6 § 1 right gave rise to a right to damages under the Human Rights Act 1998. He found that 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 paragraph 55 below), was inconsistent with the applicant’s claim. He also referred to the fact that just satisfaction under the Convention was a matter of discretion. 31. As to the claim under Article 5 of the Convention, Blake J referred to this Court’s judgments in the cases of Benham v. the United Kingdom [GC], 10 June 1996, Reports of Judgments and Decisions 1996III, Perks and Others v. the United Kingdom, nos. 25277/94 and others, 12 October 1999 and Lloyd and Others v. the United Kingdom, nos. 29798/96 and others, 1 March 2005. He decided that the applicant’s claim that his detention was a violation of Article 5 § 1 because any hearing in which a violation of Article 6 occurred was not in accordance with law was: “a slightly more modest reworking of the article 6 submission that has been already considered and summarily rejected. Again I reject this reworking of the submission for similar reasons to those already given, but more particularly for the principles spelt out in the trio of Community charge cases.” 32. Blake J 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 the County Court 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; that there was no failure to follow a statutory prerequisite because the general requirement to observe Article 6 imposed by the Human Rights Act 1998 was not the same as a precise rule prohibiting committal unless a condition was complied with; that, similarly, the practice direction (see paragraph 41 below), which set out the need to observe the Human Rights Act, was in general terms and did not amount to a condition precedent; that the Court of Appeal, at the time of the County Court’s decision, had not made an unambiguous finding that a lack of representation at a committal hearing would always violate Article 6, although its finding in the present case meant that Article 6 might be considered a condition precedent in future cases; and that there was no hint of malice or bad faith by the judge. 33. Blake J also found that the Court of Appeal’s three principal criticisms all suggested that the County Court had erroneously exercised its judgment. Erroneous exercises of judgment did not make decisions not in accordance with law or arbitrary in the sense indicated in the Article 5 § 1 case-law. 34. Having thus concluded, Blake J explained that, had he reached the contrary conclusion, it would have been necessary to consider what the causal nexus between the unfairness and the detention resulting from the unfairness was. He accepted that where detention was in violation of Article 5 § 1 it was necessary and appropriate to visit it with a measure of damages, however modest. He found that, if the family-law applications had been separated correctly and the applicant had been represented, a finding of contempt would nevertheless have been inevitable. However, whilst custody was the more probable outcome, the length of sentence would have been significantly shorter and approximately fourteen days, so the applicant would not have served six weeks in prison. He indicated that, had a violation of Article 5 been established, he would have awarded damages in the sum of GBP 6,000, on an equitable basis. 35. The applicant sought leave to appeal out of time. 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.