'Double jeopardy' is ruled a foul

WRITS

A Court of Appeal ruling has exposed a risk which practitioners, particularly those involved in family law, should take note of.

The judgment makes clear that once a person has been committed to prison for failure to obey a mandatory injunction within the time stipulated in the order, that person cannot be re-committed to prison again on the basis of the same order.

In effect, the breach of the time-limited mandatory injunction is to be treated as a single and not a continuing breach. If the party applying to commit wishes a further prison sentence to be imposed, a fresh injunction has to be obtained.

The case which sparked this ruling, Kumari v Jalal, centred on a young couple who married in 1989 and divorced three years later.

As part of the divorce proceedings, the husband had been ordered to deliver over certain belongings to his wife within seven days; he was warned that if he did not do so, an application could be made to commit him to prison. When he failed to hand over all the items, an application to commit was made and he was sentenced to three months imprisonment.

Once the husband was released from jail, however, he still failed to hand over the remaining items, claiming he no longer had them and so could not comply.

The husband was then taken back to Oxford County Court where Judge Harold Wilson was asked to jail him again for continuing contempt of the original order.

The husband's legal team - counsel Piers Pressdee and solicitor Suzanne Kingston of Oxford-based Cole & Cole - argued that if the court committed again, it would be committing twice in respect of the same breach. However, the judge rejected the argument and sentenced the husband to a further six months' imprisonment.

Now though, in a significant ruling on a little-reported area of contempt law, the Court of Appeal has held that Oxford County Court was wrong to impose a new sentence.

The court, which was presided over by Lord Justice Neill and included two of the country's most experienced family law judges, Lords Justices Ward and Thorpe, quashed the county court ruling and set aside the six-month sentence.

The judgment is probably most widely applicable in the family law field, although it would equally well apply in other non-family cases of failure to comply with court orders.

Kingston, a family law specialist, said it was an important ruling and one which gave up-to-date clarification of this area of contempt law.

She added that it was relatively unusual for circumstances such as these to occur and for someone who had already served one sentence for this type of contempt to then face a further application to commit him to prison again for alleged continued failure to obey.

Kingston said that from the outset she believed moves to have the husband jailed again "smacked of double jeopardy".

"This case was a world apart from the the sort of situation that arises in respect of continual disobedience of non-molestation orders," she explained.

Kingston added that the case should serve as a "sign-post" ruling and was one which all practitioners, particularly family practitioners, should be aware of.