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The Supreme Court will consider the correct approach to appeals in respect of sentence for contempt of court in the case of B (Algeria) v Secretary of State for the Home Department on 5 December 2012.

The facts

The case concerns an individual (“B”) who was the subject of a deportation order to Algeria by the Secretary of State on the basis of his constituting a risk to national security. During the hearing of B’s appeal against this order before the Special Immigration Appeal Commission (“SIAC”) it became apparent that B had not provided SIAC with correct details as to his identity. In the absence of such details Algeria did not wish to receive him and the Secretary of State therefore was unable to deport him.  In a penal notice, SIAC ordered B to provide various identification details (including his real name).  He did not comply with this order due to fears for the safety of his family and a concern that he would be tortured in the event of his being deported to Algeria. Following consideration of psychiatric evidence as to the likely mental health consequences for B resulting from a custodial penalty for contempt of court, SIAC sentenced B to four months imprisonment.

Proceedings in the Court of Appeal

B appealed to the Court of Appeal pursuant to section 13 of the Administration of Justice Act 1960 on the basis that the sentence of imprisonment breached his article 3 and article 8 European Convention rights, was imposed following unreasonable delay and was manifestly excessive.

Longmore LJ (with whom Laws LJ agreed) dismissed the appeal.  He found that although SIAC was wrong to hold that B would not suffer a relapse into paranoid psychosis in the event of committal to prison, imprisonment per se did not lead to a breach of article 3 as B would be transferred to a hospital for treatment in the event of a relapse. As such, imprisonment per se did not result in inhuman or degrading treatment within the meaning of article 3 of the European Convention. Likewise, there could be no breach of B’s article 8 right to private life where a sentence of imprisonment was imposed in accordance with article 6 and in the absence of a breach of article 3.  Longmore LJ also found that any delay in the case was caused by B’s continuing violation of the SIAC order and that it was not arguable that a sentence of four months for a “deliberate and contumelious contempt” was excessive.

Etherton LJ took a different view.  He considered that once it was determined that SIAC had erred in its evaluation of the psychiatric evidence, SIAC’s judgment was fatally flawed and the order for imprisonment must be set aside (irrespective of whether or not imprisonment would be a breach of B’s rights under article 3 or 8 of the Convention. Etherton LJ held that the approach of the Court of Appeal when considering an appeal in respect of sentence for contempt of court should not be the same as that in an ordinary appeal against sentence. In his view, unless it was possible to say that SIAC would have reached the same conclusion even if it had taken a correct view of the evidence, then under ordinary principles of civil law, its judgment could not stand. Although it would be possible for the court under CPR 52.10 to form its own opinion of the appropriate order to make on the committal application, Etherton LJ considered that SIAC would be in a better position than the Court of Appeal to consider updated medical evidence on the issue.  As such, he believed that the appeal should be allowed, the order set aside and the matter remitted to SIAC for reconsideration.

B’s appeal to the Supreme Court is premised upon the views expressed by Etherton LJ below.

Comment

In this appeal the Supreme Court is, in essence, tasked with considering whether or not the Court of Appeal should adopt a judicial review approach to appeals with respect to sentence for contempt of court.  That is, whether the Court of Appeal should remit for reconsideration any orders which are flawed and / or procedurally unfair unless it concludes that the court below would have reached the same conclusion if it had not fallen into error.  The alternative approach – which has been followed thus far by the Court of Appeal in appeals against sentence for contempt (Linnett v Coles [1987] QB 555, Duo v Osborne [1992] 1 WLR 611) – is for the Court of Appeal to consider the proper outcome of the committal application and to either affirm or vary the order below as appropriate and as it would in an ordinary sentencing appeal.

There is certainly merit to both approaches.  The public law approach seems appropriate where an appeal against a sentence for contempt of court arises from a public law proceeding (such as a SIAC hearing).  Remitting cases for reconsideration in the event of legal error would have the obvious benefit of ensuring that the tribunal which has seen and heard all the relevant evidence makes the final evaluation of that evidence.  Having said that, following judicial review principles in respect of such an appeal does not seem to be envisaged by the express terms of section 13(3) of the Administration of Justice Act.  Remitting cases for re-consideration in the event of legal error also inevitably results in further delays in resolving cases and, as a corollary, additional costs.  The Supreme Court’s decision in this case will therefore be critical in clarifying the proper approach for the Court of Appeal to take when considering all sentencing appeals relating to contempt of court in the future.