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Remitting of contempt cases only if there was a need for fresh investigation – Supreme Court clarifies

Date: (31 January 2013)    |    

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Unless there was a requirement for fresh investigation, for new facts, appeal courts do not have to send contempt cases to the first instance courts, the Supreme Court clarified.

B’ an Algerian national who was sentenced to four months imprisonment for contempt in 2010 by the Special Immigration Appeals Commissions (SIAC) for refusing to reveal his real identity went to the Court of Appeal where his lawyers argued that it was a breach of articles 3 and 8 or the ECHR.

The SIAC had rejected the evidence of two psychiatrists that B’ would relapse into paranoid psychosis if he was sent to prison, which Lord Justice Laws in Court of Appeal found still very lenient on SIAC’s part and comparatively merciful but Etherton LJ said the case should be remitted to SIAC to consider recent medical evidence about B’s mental state.

In the case of B (Algeria) v Home Secretary [2013] UKSC 4, the first question raised by appeal was whether in contempt cases appeals should only be allowed where a sentence was “manifestly excessive”.

Lord Kerr stated that an appellate court decides the basis for the original sentencing was wrong and that it may not be appropriate to consider the propriety of the sentence imposed solely by asking whether it was “manifestly excessive”.

If the choice of sentence was influenced by the reasons for finding that imprisonment was required such sentence could be open for a challenge on that basis, which is totally different from reference of being excessive.

Continuing further he said in the present case the sentence imposed by SIAC was not determined by the reasons on which the conclusion to imprisonment was thought to have been applied. The length of the sentence was not influenced by the conclusion that the appellant would not relapse into paranoid psychosis.

The decision for four months imprisonment was taken to reflect the seriousness of the appellant’s contempt. And in the light of that conclusion the first question did not arise Lord Kerr averred.

As far as the second question was concerned the Court of Appeal must remit a case where a first instance judgment was flawed or procedurally unfair unless it felt that the same conclusion would have been arrived by the below court if the error had not occurred.

Lord Kerr said concluded by ruling that answer to the second question would be that an appellate court need only remit a case where a first instance judgment regarding sentence imposed in a contempt case was flawed and/or procedurally unfair if it considers that a fresh investigation of new facts was required and it was necessary or desirable that this be undertaken by the first instance court.

Lord Neuberger, Lady Hale, Lord Sumption and Lord Carnwath contributed to the ruling.