England’s most senior family law judge has issued a strongly worded clarification of earlier guidance on the use of prison sentences for contempt of court.
Sir James Munby is President of the Family Division of the High Court. In May he issued succinct official guidance on prison sentences in such cases, entitled ‘Committal for contempt of court’. The guidance was firmly focused on the principle of open justice in both family cases and the Court of Protection. The latter makes judgements on behalf of people with learning and similar difficulties.
The guidance declared:
“It is a fundamental principle of the administration of justice in England and Wales that applications for committal for contempt should be heard and decided in public, that is, in open court.”
The judge noted that while both the Court of Protection and the family courts, when dealing with children, have the power to hold hearings in private, but he stressed that this should only be done “in exceptional cases where is it is necessary in the interests of justice”. The involvement of children or sensitive material is not sufficient reason in itself to hold hearings behind closed doors, the judge stated.
Paragraphs four and five of the guidance state that closed committal proceedings should always begin in public, and if the court then decides to go behind closed doors, it should give a judgement setting out the reasons for continuing the hearing in private.
When courts do impose prison sentence behind closed doors, they should identify the person, and state their sentence and nature of the person’s contempt in public.
The President wrote:
“This is mandatory; there are no exceptions. There are never any circumstances in which any one may be committed to custody without these matters being publicly stated.”
Section 6 of the guidance stated that every case in which a prison sentence or suspended prison sentence is issued for contempt of court, a transcript of the judgement must be made available and published on the BAILII legal judgement website.
In June, Sir James Munby issued supplementary guidance, further emphasising the need to only hear cases in private when doing so in the interests of justice.
Now, the President states, “a question has arisen to “whether paragraph 6 of the original Guidance applies in all committal cases or only in cases to which paragraphs 4 and 5 apply” – ie children’s or Court of Protection cases heard in private.
Sir James in unequivocal:
“Paragraph 6 applies in EVERY case in which a committal order or a suspended committal order is made, WITHOUT EXCEPTION.”
The President stressed:
“The principle is very clear and MUST be rigorously followed.”
No one must ever be sent to prison without proper details being made publicly available via the BAILII website, he stated.
“We shall be subject to strong and entirely justifiable criticism” if anyone is ever sent to prison without the publication of such details, Sir James declared.