Douherty v The Chief Constable of Essex Police

Factual and Procedural Background

This appeal arises under section 13 of the Administration of Justice Act 1960 from an order made by a county court judge committing the appellant to 28 days' imprisonment, suspended for 12 months, for breach of an injunction granted less than two weeks earlier. The injunction, a "Gang Injunction" pursuant to section 34 of the Policing and Crime Act 2009, was applied for by the respondent and targeted the appellant and four others based on allegations of gang-related violence and drug dealing. The appellant was unrepresented at the initial hearing and arrived after the injunction was granted. The injunction contained 26 conditions, including restrictions on entering certain areas, possession of weapons and drugs, and notification requirements regarding mobile phones.

On 1 October 2018, the appellant was observed in breach of several conditions, including presence in a restricted area after permitted hours, wearing a hooded garment, possession of a lock knife and cannabis, and failure to notify the police about mobile phones. The appellant was arrested and charged with criminal offences related to these breaches. He was interviewed under caution with legal representation present for the criminal matters but was detained overnight and brought before the county court the following day for the committal proceedings related to the breach of the injunction order.

At the committal hearing, the appellant was unrepresented. His solicitor for the criminal case did not attend, citing lack of legal aid availability for civil matters. The respondent's solicitor assisted by explaining the hearing documents to the appellant and informed the court of the appellant's lack of representation. The appellant elected to represent himself and admitted to the breaches. The judge sentenced the appellant to a suspended custodial sentence but did not provide a detailed sentencing rationale or consider the appellant's youth or lack of prior convictions. The appellant appealed on grounds including procedural irregularities and denial of a fair hearing.

Legal Issues Presented

1. Whether there were breaches of procedure by the judge during the committal proceedings.
2. If such breaches occurred, whether they were sufficiently material to deprive the appellant of a fair hearing.

Arguments of the Parties

Appellant's Arguments

• The judge failed to adjourn the proceedings to enable the appellant to obtain legal aid and legal representation, to which he was entitled.
• The judge did not inform the appellant of his right to remain silent during the hearing.
• The judge failed to warn the appellant of the risk of self-incrimination before he gave evidence.
• The judge did not adjourn the proceedings after the appellant gave evidence to allow for proper legal representation and focused mitigation.

Respondent's Arguments

• The proceedings were summary and required expeditious handling, though not so urgent as to preclude an adjournment.
• The judge's failure to advise on the right to silence and self-incrimination was immaterial as the appellant had made admissions during a police interview with legal representation present.
• The evidence, including the police officer's statement and admissions, was sufficient to prove breaches beyond reasonable doubt.
• Mitigation not presented at the hearing could have influenced sentencing, but the breaches were serious and multiple.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully reviewed the procedural history and the conduct of the committal hearing. It found that the appellant, a young individual with no prior convictions, was unrepresented despite the serious risk to his liberty. The injunction's terms were complex and not drafted with clarity, increasing the risk of misunderstanding by the appellant.

The respondent's solicitor and the judge both recognized the appellant's lack of representation and the potential benefit of legal aid, but the judge failed to adjourn the hearing at the outset to facilitate obtaining legal representation. The judge only raised the possibility of adjournment after the appellant had already given evidence, which was too late to be effective.

The court identified four procedural breaches: failure to adjourn to allow legal aid and representation; failure to inform the appellant of his right to remain silent; failure to warn the appellant of the risk of self-incrimination before he gave evidence; and failure to adjourn again after evidence to allow for proper mitigation with legal representation.

These breaches deprived the appellant of critical safeguards designed to ensure fairness in proceedings that affect liberty. The court rejected the respondent's argument that the breaches were immaterial, citing authoritative precedent emphasizing the importance of strict procedural compliance in contempt cases. The court found that the appellant did not receive a fair hearing and that the committal order must be quashed.

Holding and Implications

The appeal is allowed. The committal order is quashed and the contempt application is remitted for a further hearing before a different judge.

The direct effect is that the appellant's conviction for breach of the injunction and resulting suspended custodial sentence are set aside pending a new hearing. No new legal precedent is established, but the decision reinforces the necessity of strict adherence to procedural safeguards, particularly the right to legal representation and the right to silence in committal proceedings affecting liberty.