B (Algeria) v Secretary of State for the Home Department [2013] UKSC 4

B, an Algerian national, was jailed for four months by SIAC for refusing to disclose his identity. Although SIAC erred on the medical evidence, the Supreme Court held the Court of Appeal had properly conducted a fresh assessment and was not obliged to remit; appeal dismissed.

Facts

The appellant, an Algerian national whose true identity has never been disclosed and who was referred to throughout as ‘B’, was ordered by the Special Immigration Appeals Commission (SIAC) on 19 July 2007 to give particulars of his true identity and to consent to provide a DNA sample. He provided the sample but persistently refused to disclose his identity. On 26 November 2010 SIAC sentenced him to four months’ imprisonment for what it found to be a deliberate and contumelious contempt.

B had previously suffered from paranoid psychosis. Medical evidence from two consultant psychiatrists, Dr Deeley and Dr Payne, was that if imprisoned he would refuse his medication and relapse into a psychotic state. Dr Deeley considered B’s refusal to disclose his identity stemmed from an understandable fear that his family might be mistreated or tortured and that he himself might be deported and ill-treated, a motivation likely to endure even if his mental health problems were treated. SIAC nevertheless concluded that B was likely to continue taking medication and would not relapse, relying in part on Dr Thompson’s evidence (which in fact related to detention in a secure hospital, not prison).

In the Court of Appeal ([2011] EWCA Civ 828) B argued breaches of articles 3 and 8 ECHR, inadequate reasons, and excessive sentence. The Court of Appeal unanimously found SIAC had erred in effectively rejecting the evidence of Drs Deeley and Payne and in misunderstanding Dr Thompson’s evidence. The majority (Longmore and Laws LJJ) nonetheless dismissed the appeal, holding that a relapse in prison would not breach article 3 because arrangements existed under section 48 of the Mental Health Act 1983 (as amended) for transfer of a civil prisoner to hospital for urgent treatment, and that the sentence was not excessive. Longmore LJ described four months as “comparatively merciful” (para 20) and Laws LJ said:

“… this was a grave and deliberate contempt of court. Even on the footing that the appellant is at risk of a relapse into paranoid psychosis, I am wholly unpersuaded that there is the least possibility of any violation of ECHR article 3 or 8. This was a lenient sentence.” (para 37)

Etherton LJ dissented on disposal, considering that SIAC was in “a far better position” (para 33) to evaluate the recent medical evidence and that the case should be remitted.

Issues

The Court of Appeal certified two questions: (1) whether it was correct to adopt the approach of the Court of Appeal (Criminal Division) and allow an appeal only where a sentence is manifestly excessive, or whether section 13 of the Administration of Justice Act 1960, read with the Civil Procedure Rules, confers a broader discretion enabling remittal where the first instance sentencing judgment was flawed and/or procedurally unfair; and (2) whether an appellate court must remit where the first instance sentencing judgment in a contempt case was flawed and/or procedurally unfair, unless satisfied that the court below would have reached the same conclusion absent the error.

Arguments

For B, Mr Southey QC (with Ms Markus) advanced a case notably different in focus from that in the Court of Appeal. He challenged Longmore LJ’s statement at para 12 that the question was whether the sentence was “manifestly excessive”. He argued, first, that this treated SIAC’s decision as retaining residual validity despite its flawed basis; secondly, that section 13(1) of the 1960 Act gives an automatic and broadly based right of appeal and section 13(3) an unfettered power to reverse or vary, so it was wrong to constrain that power by reference to the lower court’s penalty, an entirely de novo decision being required; and thirdly, that where the lower court had acted on an unlawful basis the matter should generally be remitted so as to preserve the contemnor’s right to a proper first instance adjudication and a further right of appeal. Substantively, it was argued that committal would have no coercive effect whatever, that imprisonment would cause a psychotic relapse, and (supplementally) that B’s liberty was already heavily restricted by a control order and later restrictive bail conditions.

For the Secretary of State, Mr Tam QC (with Mr Gray) had successfully persuaded SIAC that it could not be said that committal would be so unlikely to coerce compliance as to render it disproportionate.

Judgment

Lord Kerr gave the sole judgment, with which Lord Neuberger, Lady Hale, Lord Sumption and Lord Carnwath agreed. The appeal was dismissed.

Lord Kerr accepted that where the basis of a contempt sentence is flawed, “a de novo assessment must indeed occur”. But a flawed basis does not make the sentence itself inevitably wrong: it “may be an entirely correct sentence but for different reasons from those articulated by the original sentencing court”. Crucially, the fresh look need not be undertaken by the original court. Citing Jackson LJ in JSC BTA Bank v Solodchenko (No 2) [2012] 1 WLR 350 at para 60, he held that where the appellate court is seised of the case and in possession of all relevant facts, the proper course is for it to determine the proper sentence on the true facts. Remittal is suitable only where a fresh investigation of new facts is required and it is necessary or desirable that a first instance court undertake it. That was not this case: the Court of Appeal could evaluate the medical evidence and reach reliable conclusions.

On the facts, the Court of Appeal had in substance conducted a de novo examination and had reached conclusions favourable to B on both principal points. As to coercion, the medical evidence (recorded uncritically by Longmore LJ and expressly accepted in paras 10–11) that B’s refusal was rooted in enduring fear necessarily entailed that committal would not coerce compliance; the majority’s committal therefore rested on the penal, not coercive, element. As to relapse, the Court of Appeal proceeded on the premise of a real risk of psychosis but held this did not contraindicate imprisonment given the available transfer arrangements — a wholly different basis from SIAC’s.

On the supplementary point concerning existing restrictions on liberty, Lord Kerr observed it was “at least questionable” that this could be significant: where committal may secure compliance, existing restrictions are immaterial, and where punishment is required, “the loss of residual liberty is unlikely to weigh heavily against the making of the order”.

On deference, Lord Kerr distinguished between the validity of the decision to commit and the selection of the term. SIAC’s flawed reasoning went to the former and had been corrected; the length had not been influenced by SIAC’s erroneous view on relapse but was chosen to reflect the seriousness of the contempt. It was therefore “not inappropriate” to test that term by asking whether it was manifestly excessive. He added the qualification that where the choice of sentence has been influenced by the flawed reasons for imposing imprisonment, the manifest excess test alone may not suffice. Ignoring SIAC’s sentence “would be artificial” and “would introduce an air of unreality about the sentencing exercise”.

The first certified question accordingly did not require an answer. The second was answered: an appellate court need only remit where it considers that a fresh investigation of new facts is required and it is necessary or desirable that this be undertaken by the first instance court.

Implications

The decision clarifies appellate practice under section 13 of the Administration of Justice Act 1960. It confirms that error in the first instance reasoning triggers a genuine de novo assessment on appeal, but does not create any presumption of remittal; the appellate court should normally decide the matter itself where it has all relevant facts. That approach endorses Solodchenko (No 2) and rejects the argument that a contemnor has a right to have sentence re-determined at first instance with a further appeal.

It also refines the standard of review of the length of a committal sentence: the “manifestly excessive” formulation remains apt where the term was fixed to reflect the gravity of the contempt and was untainted by the flawed reasoning, but may be inadequate where the flawed reasoning influenced the length. Practitioners should therefore identify precisely which limb — the decision to commit, or the term selected — is infected by the error.

The judgment further confirms, in this context, the twin coercive and penal purposes of committal, and that a punitive committal may properly be imposed even where coercion is futile. The observations on pre-existing restrictions on liberty (control order, restrictive bail) were expressed tentatively and are best treated as guidance rather than a firm rule. The ECHR articles 3 and 8 arguments were not the focus before the Supreme Court, which did not revisit the Court of Appeal’s conclusion that transfer arrangements under section 48 of the Mental Health Act 1983 met the article 3 concern; that reassessment was, as Lord Kerr noted, unchallenged on its merits. The case matters chiefly to those advising in contempt and SIAC proceedings, and to appellate courts deciding whether to substitute their own sentence or remit.

Verdict: Appeal dismissed. The Supreme Court (Lord Kerr, with whom Lord Neuberger, Lady Hale, Lord Sumption and Lord Carnwath agreed) upheld the Court of Appeal’s affirmation of the four-month committal. The first certified question did not require an answer; the second was answered to the effect that an appellate court need only remit a flawed or procedurally unfair first instance contempt sentencing decision where it considers that a fresh investigation of new facts is required and that it is necessary or desirable for the first instance court to undertake it.

Source: B (Algeria) v Secretary of State for the Home Department [2013] UKSC 4