Does Art 5 entail a right to legal representation when facing prison for contempt of court?

Hammerton v. the United Kingdom, Application no. 6287/10 – read judgment.

The European Court of Human Rights has held that the detention of an individual following his breach of a civil contact order, where he had no legal representation, did not violate his rights under Article 5, ECHR (Right to Liberty and Security of Person). However, the decision not to provide compensation to the individual following a failure to provide him with a lawyer during domestic proceedings resulted in a violation of Article 6 (Right to a Fair Trial). 

Background

The applicant, Mr Hammerton, divorced from his wife in August 2004. Prior to his, he applied for contact with two of his five children. During these contact proceedings, the applicant’s former wife alleged that he had harassed her. As a result, the applicant gave an undertaking to the County Court that he could not contact his wife or her parents unless through his own solicitors. Further, the County Court prohibited, via an injunction, Mr Hammerton from using threatening violence towards his former wife.

Later, the applicant’s former wife applied to have Mr Hammerton sent to prison for breaching both the undertaking and the injunction. The applicant’s requests for contact with two of his children were ongoing. The judge, sitting in the Central London Civil Justice Centre, decided to combine the hearings on the applicant’s conduct and his request for contact with his children. During this hearing he was unrepresented. Mr Hammerton was sentenced to three months in prison for contempt of court due to his actions towards his former wife. After six and a half weeks, he was released in September 2009.

Mr Hammerton then lodged an appeal against the finding that he had been in contempt of court. Both the conviction and the sentence imposed were quashed by the Court of Appeal. The decision to hear both issues relating to the contact order and the potential contempt of court “led to inescapable errors in law”. The proceedings relating to the contempt of court were to be considered “criminal” and, according to the protections within Article 6(3), Mr Hammerton should have been provided with legal representation. Mr Hammerton then claimed damages in the High Court by relying on both the common law tort of wrongful imprisonment, and the scheme for payment of damages under the Human Rights Act 1998. However, both claims failed due to the fact that the decision taken to imprison the applicant was taken in good faith.

Mr Hammerton applied to the European Court of Human Rights and argued that the United Kingdom had violated his rights under Articles 5, 6, and 13.

Article 5

The applicant argued that his committal to prison was in violation of Article 5(1). The text of Article 5(1) reads:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law”

Despite arguments from the UK Government that Article 5(1)(b) was solely applicable, the Court considered that both Article 5(1)(a) and (b) were of relevance.

The next step for the Court was to consider whether the detention could be justified under Article 5(1)(a). There are three conditions that must be satisfied in order for such a detention to be justified – it must be lawful, lack arbitrariness, and not constitute a flagrant denial of justice.

Lawfulness

The Court considered that not every procedural fault in proceedings that result in a detention results in “unlawfulness”. A distinction is to be made between faults that result in the decision being automatically unlawful (ex facie invalid) and those that are only invalid once they have been overturned by a higher court (prima facie valid). Only the former will be consider “unlawful” for the purposes of Article 5(1) (Mooren v. Germany, (GC), Application no. 11364/03, 9 July 2009, paras. 72-75).

In addition to jurisdictional issues, a detention could be considered automatically unlawful if flaws in the proceedings amounted to a “gross and obvious irregularity”. The Court referred to previous case law that stated the lack of legal representation of itself was insufficient to meet this stringent standard (para. 114). Accordingly, the detention cleared the first hurdle.

Arbitrariness

The existence of arbitrariness in the decision to detain often results from bad faith on the part of the decision maker. Additionally, if the detention has no link to the conviction relied upon under Article 5(1)(a), the detention will be considered arbitrary (para. 97). The Court, in applying these principles, held that there had not been any arbitrariness in the present case.

Flagrant denial of justice

The flagrant denial of justice test considers the extent to which the rights of the individual under Article 6 were infringed during the proceedings that lead to the detention. Not every violation of Article 6 will result in a flagrant denial of justice. The violation of Article 6 must go beyond “a mere irregularity or lack of safeguards” and result in “a nullification or destruction of the very essence, of the right guaranteed” (para. 99). Whilst Mr Hammerton had not been provided with a lawyer, as required under Article 6(3)(c), this did not amount to a flagrant denial of justice. To hold that such a standard was met would “come close to removing the distinction between a violation of Article 6 and a flagrant denial of justice” (para. 119).

Due to the fact that the detention did not fall short of any of the applicable standards, the detention was justified under Article 5(1)(a). As a result, the Court did not consider it necessary to answer the question of whether the detention was justified under Article 5(1)(b) (para. 120).

Article 6 and 13

Although the domestic courts had recognised that the proceedings had violated the right to legal assistance under Article 6(3)(c), the applicant argued that he should have been entitled to compensation in order to properly address this violation.

In addressing this issue, the Court considered whether Mr Hammerton could still be considered a “victim”. There would be no need for the Court to consider the issue if the individual has been adequately compensated by domestic authorities for the violation of Article 6.

The Court considered that if the applicant had been provided with legal assistance during the domestic proceedings then this would have likely had an impact on the outcome of the case by significantly reducing his prison sentence. The Court stated that the mere acknowledgment that the applicant’s rights had been violated was insufficient to remedy this significant disadvantage he had been subjected to – he should have been provided with financial compensation. (para. 137). Accordingly, the Court held that there had been a violation of Article 6 due to the lack of legal representation during the domestic proceedings.

Additionally, the fact that he had not been provided with such financial compensation following the Article 6 violation demonstrated that no effective remedy existed at a domestic level. Thus, the applicant’s right under Article 13 had also been violated.

Conclusion and Article 41

The Court’s final task was to consider the level of compensation owed to the applicant for the violation of his rights under Articles 6 and 13. Whilst compensation (described as “just satisfaction” by the Court) is discretionary under Article 41, the Court’s findings that the domestic courts should have provided financial compensation to the applicant strongly suggested that the Court should afford Mr Hammerton financial compensation. The Court decided, having considered the potentially shorter period of imprisonment had the rights under Article 6 been complied with, that a sum of 8,400 Euros should be paid to the applicant by the UK Government (para. 162).

Dissenting Opinion

The Court decision was reached bya majority of 4 to 3.

The dissenting judges found that the detention could not be justified. Instead of focusing on Article 5(1)(a), the minority considered that Article 5(1)(b) should be applicable due to the fact that it was on this ground that the Government attempted to justify the detention (paras. 3-5 of partial dissent) The arbitrariness test applicable to Article 5(1)(b) is more stringent than the test relevant to detentions justified by reference to Article 5(1)(a).

The minority found that the decision to detain the applicant was arbitrary, and thus not justified under Article 5(1)(b). The domestic judge had, in the words of the Court of Appeal, “paid no heed to the purpose of punishment in contempt proceedings” when setting the sentence and, further, the whole sentencing proceedings had been “fatally flawed”. (para. 22 of partial dissent).

The minority also considered that the decision to detain the individual should have been considered automatically unlawful (ex facie invalid). This test, equally applicable to Article 5(1)(b) and (a), had not been met due to the “very serious procedural defects” in domestic proceedings that resulted in the applicant’s “complete lack of any meaningful ability to defence himself” (para. 19 of partial dissent) In addition to the issues surrounding legal representation, the decision to combine the contact order hearing with a hearing relating to the alleged contempt of court concerned the minority. Due to the fact that the contempt proceedings were criminal in nature, the applicant had a right to remain silent, which could not co-exist with his need to establish his claims regarding his request for contact with his children. These “gross and obvious irregularit[ies]” in the proceedings resulted in the detention being unlawful under Article 5(1) (para. 20 of partial dissent).

Comment

In short, civil contempt proceedings that can result in detention should be considered “criminal” for the purposes of Article 6. Whilst this does not mean such proceedings are criminal as a matter of domestic law, in future, the full defence rights provided in Article 6(2) and (3) should be provided to the individual due to the proceedings possessing a “criminal nature” for the purposes of the ECHR.