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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Abbott, R v [2004] EWCA Crim 91 (21 January 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/91.html Cite as: [2004] EWCA Crim 91

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 21st January 2004

1. MR JUSTICE GRAY: On 21st November 2003 in the Crown Court at Southend the appellant, Robert Abbott, was found by His Honour Judge Lockhart to be guilty of contempt of court. On 22nd December 2003 he was sentenced to six months' detention in a young offender institution. The appellant is now 19 years old.
2. This application has been referred direct to the Full Court because by virtue of section 13 of the Administration of Justice Act 1960 the appellant has an automatic right of appeal. The question which we have to decide is whether the sentence imposed by the learned judge was an unlawful sentence, or wrong in principle, or manifestly excessive, those being the various contentions advanced on behalf of the appellant by Mr Welsh for whose submissions we are grateful.
3. The background to the finding of contempt was as follows. The appellant was a witness in a wounding case under section 20 of the Offences Against the Person Act. The defendant in the case was alleged to have struck another man with a pick axe handle. The issue in the case was whether the defendant was acting to prevent the complainant from attacking a further party. The appellant was an essential witness of fact for the Crown. Without his evidence the Crown was in no position to prove that the defendant in the criminal case was not acting to prevent an unlawful attack on another. The appellant apparently knew both the complainant and the defendant in the case.
4. Putting the matter shortly, there were two hearing dates for the appellant to attend. They were, firstly, the original trial date in July 2003. The appellant did not attend the trial. Secondly, a further hearing in August 2003, which hearing had been set down, when the original trial was aborted, as being the return date for summonses issued for the appellant and the complainant. On the second occasion the complainant did attend court in answer to the summons, but the appellant did not. There were, therefore, potentially two acts of contempt by the appellant, the first being non-attendance at the July trial and the second possible contempt for non-attendance at the hearing in August.
5. In relation to the July trial date, which had to be aborted, given the evidence that the direction to the appellant to attend that hearing might have been cancelled, the learned judge, having heard representations, accepted that the court would not consider the question whether non-attendance on that day constituted a contempt of court on the part of the appellant, so that in the event the appellant was not called on to defend his non-attendance on that occasion.
6. That left the issue of whether the appellant was in contempt of court in failing to attend court after he had notice of the August hearing. The evidence against him was strong. His Honour Judge Lockhart had no hesitation in finding that the officers had done enough to inform the appellant of his duty to attend in principle and had managed to give him clear notification of the date upon which he was required to attend and the court at which he was required to attend. It followed, found the learned judge, that the appellant was in contempt of his duty to attend court at the August hearing. Having made that finding, the learned judge then very properly adjourned the case for a pre-sentence report to be obtained. The sentence which he imposed was, as we have said, one of six months.
7. The first question which we are invited to consider by Mr Welsh is whether the sentence was a lawful one. The point which was raised by Mr Welsh with the judge immediately after sentence had been passed arises out of section 3 of the Criminal Procedure (Attendance Of Witnesses) Act of 1965. That section is in these terms:

"3(1) Any person who without just excuse disobeys a ... witness summons requiring him to attend before any court shall be guilty of contempt of that court and may be punished summarily by that court as if his contempt had been committed in the face of the court.

(2) No person shall by reason of any disobedience mentioned in subsection (1) be liable to imprisonment for a period exceeding three months."

8. The submission advanced by Mr Welsh on behalf of the appellant is to the effect that the section, firstly, provides statutory confirmation that non-attendance by a person required to attend the court as a witness amounts to a contempt of court. The section further entitles the judge to deal with the matter summarily, that is to say there and then, as a contempt in the face of the court.
9. More importantly, submits Mr Welsh, the section has the clear effect of imposing a maximum sentence of three months for that form of contempt. That, he says, is the maximum sentence which can be imposed upon a witness for failure to attend.
10. This point was raised, as we say, by Mr Welsh with the judge after he had imposed the sentence of six months. What Mr Welsh said to the judge was this:

"Your Honour, during the proceedings it has not been entirely plain to me whether or not these contempt proceedings have been brought under the common law, or effectively under statute. Your Honour, the relevant section in Archbold is paragraph 8.12. Your Honour, I would seek to persuade the court that, effectively, this is an offence which is set out by statute, and, your Honour, there is a statutory prescribed maximum sentence."

11. There then ensued a dialogue between counsel and the learned judge, in the course of which the judge observed, firstly, that the case had got beyond the situation of dealing with a summons because the court had issued a warrant. We take that to have been an oblique reference to section 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965. The judge at a later stage said:

"I have to say, I regard this as an offence against the common law. That is the basis on which I have dealt with it."

12. He concluded by saying:

"It is a common law offence. It was a course of conduct over a period of time. In my view, this is the necessary sentence."

13. Mr Butcher, who has appeared before us on behalf of the prosecution, advances the following submissions. Firstly, he points out that the learned judge had concluded that, although he had been contacted by an intermediary and informed of his obligation to attend court on 22nd August 2003, the appellant had deliberately by his actions made himself unavailable for service of the summons and that in fact the summons was never served. The contention advanced by Mr Butcher is that as the summons was not served section 3(1) of the Act had no application and the learned judge was entitled to proceed under the common law. The alternative submission advanced by Mr Butcher is that if the summons is deemed to have been served by reason of its communication, and as a consequence the appellant commits a statutory contempt, then section 3 of the 1965 Act does not exclude the operation of the common law contempt at least in those cases where a defendant's conduct is contumelious.
14. We are unable to accept either of those submissions. Leaving aside for the moment the question of service of the summons, it does appear to us to be clear that, whilst prior to the enactment of the 1965 Act the failure of a witness to attend court was punishable as a contempt at common law, the effect of the enactment of section 3 was to convert what was previously a common law contempt into a statutory contempt. That being so, we cannot accept that there exists a parallel jurisdiction, namely, contempt at common law, in circumstances where section 3 applies.
15. We turn, then, to consider the submission that, because the summons had not been served on the appellant, section 3 was inapplicable so entitling the learned judge to proceed at common law. In that connection we refer again to the opening words of section 3(1):

"Any person who without just excuse disobeys a ... witness summons requiring him to attend before any court shall be guilty of contempt of that court ..."

We need not read the rest of the subsection.

16. When it was put to him that the wording of the subsection contemplates no more than that there has been disobedience to a witness summons and makes no reference to any requirement for personal service, Mr Butcher was constrained to accept that the disobedience could take place without a summons being served the witness. We consider that that concession is rightly made and that Mr Butcher was also right when he accepted that there did not appear to be anything ruling out oral notification of a summons as a sufficient ground for an offence to be committed under section 3(1) of the 1965 Act.
17. We say that we accept that the concession was rightly made in the light of two authorities. The first is Abdulaziz [1989] Crim LR 717. That was a case where the appellant, who had been fined a substantial sum of money for non-attendance as a witness, had not been served with any summons to attend. The note of the case reads as follows:

"Held, allowing the appeal, if she had received notice in September/October, her failure to attend would have been culpable. The Court did not accept her counsel's submission that she was entitled to written notice; that was not the practice and clear oral notification sufficed."

18. We stress that in connection with any statutory criminal contempt the requirement that the notification, if oral, should be clear and precise is obviously one which must be carefully observed.
19. The second authority which is material on this aspect of the case is an unreported decision of this Court Mohammed Yusef [2003] EWCA Crim 1488. This was another case where the appellant had been found by the trial judge to be guilty of contempt of court in circumstances where he had not been served with any written notice or summons to attend court.
20. At paragraph 3 the Vice President summarises the position as follows:

"The summons was served on the appellant's family home over the weekend. It is common ground that the appellant who, as is implicit in what we have already said, was deliberately lying low, became aware of the existence of the summons on Sunday 23rd March when, whilst speaking to his mother on the telephone, he was told about it."

21. The Court found that the trial judge had been right to make a finding of contempt of court in those circumstances, notwithstanding that there had been no personal service of any witness summons on the appellant in that case. Before passing from the case we note from paragraph 19 of the judgment that the sentence of three months' imprisonment, which had been passed by the trial judge, was upheld and the Vice President referred to that sentence as being "the maximum sentence". So it would appear plain that it was a sentence which the Court took to have been imposed under the 1965 Act.
22. It follows that the maximum sentence which it was permissible for the judge to impose was one of three months. In those circumstances, we have come to the conclusion that the sentence of six months, exceeding the statutory maximum imposed by section 3 of the 1965 Act, was an unlawful sentence. It does not appear to us that by reason of the non-service of the summons, or by reason of the length of time for which the learned judge took the view the appellant had been in contempt, that the learned judge was entitled to exceed in the sentence which he imposed the statutory maximum under section 3.
23. We come then to consider what course this Court should take in regard to the sentence which we must substitute. As we have already indicated, there were two occasions on which it might be said that the appellant had been in contempt of court, namely, at the July aborted hearing and again at the August hearing. We have already recorded the fact that the learned judge declined to find contempt on the occasion of the trial in July because he accepted that the appellant might have been told that his obligation to appear on that day as a witness had been cancelled.
24. The sole basis of the finding of contempt that was made by the judge is the failure of the appellant to appear at the August hearing. We stress that in the view of this Court it is of vital importance that those who are in a position to give relevant evidence, as this appellant plainly was, must observe their duty to attend court if required to do so. Non-attendance is a serious matter. But we have asked ourselves whether, in all the circumstances, it is right that the maximum sentence of three months should have been passed by the learned judge if he had proceeded under section 3 of the 1965 Act.
25. We have come to the conclusion that the sentence of three months should not stand. We arrive at that conclusion for this reason. As we have explained the learned judge confined his finding of contempt to the August non-attendance. Yet in his sentencing remarks he referred, and plainly was much influenced by, what he described as the persistent nature of the contempt in the case with which he was dealing. In those circumstances we think it right to make some reduction in the sentence which was passed.
26. So far as sentencing in contempt cases is concerned, we have been referred to section 23 of the Crime (Sentences) Act 1997 the material part of which reads as follows:

"This chapter ... applies to persons committed to prison or to be detained under section 9 of the 1982 Act

...

(b) for contempt of court or any kindred offence

as it applies to persons serving equivalent sentences of imprisonment and references in this chapter to prisoners or to prison or to imprisonment shall be construed accordingly."

27. That section would appear to bring offences of contempt of court into line with the regime introduced by section 33 of the Criminal Justice Act 1991 dealing with the duty to release short term and long term prisoners.
28. However, we have also been referred to section 11 of the 1997 Crime (Sentences) Act which provides at subsection (1) that:

"This section applies where a prisoner is serving a sentence of imprisonment for a term of more than two months and less than three years."

That section then goes on to deal with the manner of assessment of early release days.

29. We have not found it altogether easy to reconcile these sections of the 1991 Act and the 1997 Act. The course which the Court has decided that it would be right to take is to impose a sentence which will enable the immediate release of this appellant. The sentence which we impose for that purpose is one of ten weeks' imprisonment. Accordingly, the course which the Court takes is to quash the sentence of imprisonment of six months imposed by the learned judge and to substitute for it the sentence of ten weeks to which we have referred.
30. LORD JUSTICE PILL: We make clear that the order is one which would allow for immediate release. We understand that ten weeks does that, but what takes priority as between the two is such sentence as would permit his immediate release.
31. MR WELSH: I am very grateful.