Case Comment: B (Algeria) v Secretary of State for the Home Department  UKSC 4
25 Monday Feb 2013
The Supreme Court handed down judgment in B (Algeria) v Secretary of State for the Home Department  UKSC 4 on 30 January 2013. It held that where a sentence for contempt imposed by the Special Immigration Appeal Commission is found to be flawed on appeal, the appellate court is entitled to consider the propriety of the sentence afresh. The appellate court need only remit a flawed sentence back to the first instance court if it considers that a fresh investigation of the facts is required.
I posted a preview of this case here on 3rd December 2012. In that blog I drew attention to the arguments both for and against remitting sentences in contempt cases back to SIAC for reconsideration in the event of legal error. In short, although there is a real benefit in allowing an up-to-date re-evaluation of all evidence relevant to sentence by the first instance court, that benefit is necessarily accompanied by time and cost implications which do not arise when the appellate court either affirms the sentence imposed or substitutes a different sentence on appeal.
The case concerned an Algerian national (“B”) who came to the UK illegally in 1993. In March 2005 he was made the subject of a deportation order to Algeria as SIAC determined that he constituted a high level risk to the United Kingdom. B refused to disclose his real identity, despite a SIAC order to do so, and in the absence of this information the Secretary of State was unable to implement the deportation order. B’s reasons for refusing to comply with SIAC’s order were that he feared for the safely of his family and that he feared being tortured upon return to Algeria. After considering B’s failure to comply with its order, together with psychiatric evidence as to the likely mental health consequences of committing B to prison for contempt of court, SIAC imposed a sentence of four months imprisonment for contempt of court.
The Court of Appeal held that SIAC had erred in expressing confidence that B would not relapse into paranoid psychosis if he was sent to prison as the psychiatric evidence showed that B would refuse to take his medication if imprisoned and that this would likely lead to a psychotic state. Notwithstanding this error, a majority of the Court of Appeal (Longmore LJ and Laws LJ) found that the sentence of four months imprisonment was not excessive given that the contempt in question was a deliberate and grave contempt of court. Etherton LJ agreed with the majority’s view as to SIAC’s error, however he found that the right disposal of the case was to remit it to SIAC for reconsideration and evaluation of recent medical evidence.
In a unanimous decision dismissing the appeal, the Supreme Court confirmed that an Appeal Court may undertake a fresh review of a sentence for contempt imposed in error without necessarily remitting it to the first instance court. When making a fresh assessment of sentence, it is to be borne in mind that although the basis for an original sentencing decision may be wrong, the propriety of the sentence cannot necessarily be determined merely by considering whether it is manifestly excessive. This is because the error may have infected the choice of sentence itself.
In the case at hand, the Supreme Court found that the length of B’s sentence was not influenced by SIAC’s erroneous conclusion that the appellant would not relapse into paranoid psychosis. The four month sentence selected by SIAC was chosen to reflect the serious nature of the contempt in B’s case. It was therefore amenable to an appellate review which was restricted to the question of whether the sentence was manifestly excessive.
The Supreme Court’s judgment, which was delivered by Lord Kerr (with whom Lord Neuberger, Lady Hale, Lord Sumption and Lord Carnworth agreed) also clarified that it is only necessary for an appellate court to remit a flawed and / or procedurally unfair sentence in contempt proceedings if it takes the view that a de novo assessment of new facts is needed and that it would be desirable for this investigation to be undertaken by the first instance court.
The Supreme Court’s decision in this case strikes the right balance in attempting to ensure fair and proper outcomes in future appeals arising from sentences for contempt. Confirming the propriety of appellate review for contempt sentences in certain circumstances will ensure that additional delays and costs do not result from the unnecessary remittal of all flawed contempt sentences back to first instance courts. Likewise, the Supreme Court’s clarification that any cases in which a fresh investigation of facts would be better undertaken by a first instance court should be remitted back to that court will serve to avoid flawed sentencing outcomes in such cases in the future.