A recorder, in releasing a contemnor eight days into his four-month sentence, had erred in failing to give proper consideration to the question of whether he had received sufficient punishment for his breaches of an order or whether the interests of justice would best be served by permitting his early discharge.
|The appellant local authority appealed against an order for the respondent’s immediate release from custody after having served eight days of his four-month sentence for contempt.
The respondent was a rogue trader who would call at the homes of vulnerable people offering to carry out work for them. The work would be worthless and shoddily-executed and he would increase the agreed price. The local authority began enforcement proceedings against the respondent pursuant to its powers as general enforcer under the Enterprise Act 2002 s.213 to seek to restrain domestic infringements harmful to the collective interests of consumers. An order was made restraining the respondent from carrying on his course of conduct. The local authority sought his committal to prison following multiple breaches of the order and he was committed for four months. Following a request from a county court member of staff, he was brought before a recorder eight days after his committal and given the opportunity to purge his contempt. He apologised for any breaches and the recorder ordered his immediate release. The respondent had since been returned to prison for criminal offences.
The local authority submitted that: the procedure which led to the respondent’s appearance before the recorder was flawed; the court had failed to ensure it had the appropriate material before it to make such a decision; the court had failed to invite the local authority to address the court; and the decision to discharge him was unduly lenient.
HELD: The county court had failed to follow the procedure under CPR r.81.31 for the discharge of a person in custody. The respondent had not applied for his discharge and had been taken to court for a reason he did not comprehend and told that, in order to purge his contempt, he should apologise to the court for the breaches. The local authority was given no notice of the hearing. Ordinarily an application for discharge should be listed before the judge who had imposed the order for committal. The recorder gave no consideration to whether it was appropriate to release the respondent after only eight days of his four-month sentence. The procedure adopted deprived the recorder of the local authority’s assistance. Guidance on how a judge should approach such a task was given in CJ v Flintshire BC  EWCA Civ 393,  C.P. Rep. 36, CJ followed. Given the passage of time, the respondent could not be returned to prison to serve the remainder of his four-month sentence so there was no purpose in setting aside the recorder’s order. However the judge had not given proper consideration to the question of whether the respondent had received sufficient punishment for his breaches or whether the interests of justice would best be served by permitting his early discharge. In the circumstances, the respondent’s apology and promise of future compliance which the recorder accepted were devoid of content. It fell short of considered, spontaneous and reasoned contrition, Poole BC v Hambridge  EWCA Civ 990,  C.P. Rep. 1 considered (see paras 22, 24, 26, 32, 35, 37 of judgment).