Saturday, 24 August 2013

Solicitor General loses in contempt proceedings

The Solicitor General (Oliver Heald) brought proceedings in the High Court to have a mother, Jennifer Marie Jones, committed to prison for contempt of court.  The President of the Family Division (Munby LJ) dismissed the application saying ' 'The Solicitor General has failed to prove his case.  The application is dismissed.'   Read the judgment.  

The Law Officers have standing (locus) to bring proceedings even where the alleged contempt is civil and relates to an order obtained by a private individual (para 14 of the judgment).

Jones would have been unrepresented but for solicitors and a barrister (Christopher Hames) acting for her pro bono.   On this, Munby LJ said (42 and 43):

Public funding

Mr Hames has been acting for the mother pro bono, as have the solicitors who instruct him. For that both he and they deserve her thanks and mine. There can be no higher call on the honour of the Bar than when one of its members is asked to act for no fee on behalf of a client facing imprisonment. The Bar, I am sure, will never fail in its obligation to stand between the Crown and the subject in such a case. And the same goes, I am sure, for the other profession. But it is disconcerting that something so fundamental – the right to a proper defence when a great officer of state seeks to have
you imprisoned – should be dependent upon the willingness of the Bar and its instructing solicitors to act without fee.

I raise the matter because I am told that the reason why the mother was denied public funding was not because of the merits of her case, not because her income took her out of scope, but because the value of her share of two properties in Spain meant that her capital exceeded the statutory limit of £8,000. Mr Hames told me on instructions that there was no method by which she could realise the value of her share within the short timeframe of the proceedings. There is, I am told, no other basis upon whichpublic funding can be made available in a case such as this.  If this is really so, it might be thought that something needs to be done ....

Munby LJ then referred to Article 6 of the European Convention on Human Rights and 'the learning expounded' in Hammerton  v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133 - a case concerning committal for contempt of an unrepresented father.

Munby LJ made no order as to costs.

It is to be hoped that government pays heed to Munby LJ's words.  Anyone facing contempt proceedings (with the possibility of imprisonment) should be entitled to publicly funded representation regardless of means.

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