Supreme Court dismisses contempt appeal

The Supreme Court has made it clear that appeal courts do not have remit contempt cases to first instance courts unless “a fresh investigation of new facts is required”.

‘B’, an Algerian national, was sentenced to four months’ imprisonment for contempt in 2010 by the Special Immigration Appeals Commission (SIAC) for refusing to disclose his real identity. His lawyers claimed that this breached articles 3 and 8 of the ECHR.

The Court of Appeal found that although SIAC had erred in rejecting the evidence of two psychiatrists that B would relapse into paranoid psychosis if he was sent to prison, articles 3 and 8 had not been breached.

Rejecting B’s appeal, Lord Justice Longmore described B’s sentence as “comparatively merciful” and Lord Justice Laws “lenient”, but Etherton LJ said the case should be remitted to SIAC to consider recent medical evidence about B’s mental state.

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

He went on: “Where an appellate court decides that the basis for the original sentencing was wrong, 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 has been influenced by the reasons for finding that imprisonment is required, the sentence chosen may be open to challenge on that basis, quite apart from considerations of obvious immoderation.

“In the present case, however, the sentence imposed by SIAC was not determined by the reasons that it had concluded that imprisonment was appropriate. The length of the sentence was not influenced by the conclusion that the appellant would not relapse into paranoid psychosis.

“It was chosen to reflect the seriousness of the appellant’s contempt.”

Lord Kerr said that in the light of that conclusion, in the case of B, the first question did not arise.

The second question was whether the Court of Appeal must remit a case where a first instance judgment was flawed or procedurally unfair “unless it concludes that the court below would have reached the same conclusion even if it had not fallen into error”.

Lord Kerr said: “I would answer the second certified question 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 is required and it is 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.