Reference:  EWCA 1271
Court: Court of Appeal
Judge: Keene LJ, Wall LJ
Date of judgment: 23 Aug 2004
Summary: Contempt - Committal - Early Release Provisions - ss. 33 and 45, Criminal Justice Act 1991
Christina Michalos KC (Amicus Curiae)
Instructing Solicitors: Treasury Solicitors
The Applicant Mitchell was committed to prison in respect of breaches of a non-molestation order found by the court to be proven. HHJ Butler QC imposed a sentence of 72 days imprisonment for the three breaches and activated a 56 day period of imprisonment suspended by a previous order, making a total of 128 days. In giving judgment the judge had said that the Applicant was at liberty to purge his contempt but his sentence could not be halved. Sections 33 and 45 of the Criminal Justice Act 1991 provide that in the case of a contemnor committed to prison for a period of less than 12 months, the Secretary of State is under a duty to release the prisoner unconditionally. The judge ordered that he be ‘committed to prison until 16th September 1991’ thereby, in specifying a date, seeking to override the early release provisions.
The issue was whether upon imposing a sentence of imprisonment for contempt of court, the County Court has power to direct that the contemnor not be released from prison until a specified date and thus override the provisions of the Criminal Justice Act 1991 which provide for automatic release of a contemnor sentenced to less than 12 months at the point when he has served half of his sentence.
The early release provisions in s.33 and s.45 of the Criminal Justice Act 1991 could not be overridden in the manner that the judge sought to do. The court has no power to make a sentencing order that has the effect of overreaching these provisions.
Both s.33 and s.45 of the Criminal Justice Act 1991 are prospectively repealed by the Criminal Justice Act 2003 but as at 23rd August 2004 this was not yet in force. Section 258 of the Criminal Justice Act 2003 will replace these provisions with a similar section specifically dealing with the early release of contemnors.