Family Law

His Honour Judge John Platt

Much confusion surrounds the practical effects of a sentence of imprisonment or detention in a young offender institution for those who are in contempt of court in family or civil cases. The purpose of this article is to set out the statutory regime which applies to such sentences and to look at the recent authorities.

By s 33 of the Criminal Justice Act 1991 any person serving a sentence for contempt was a short-term prisoner and entitled to be released after serving one half of the term imposed, unconditionally if his sentence was less than 12 months, and on licence if the term was 12 months or more. Section 45(1) of the 1991 Act applied those provisions to persons committed to prison or detained for contempt of court. From 5 April 2005 those provisions were repealed by Sch 37 Part 7 of the Criminal Justice Act 2003 and replaced by s 258 of that Act so far as they relate to contemnors. Under s 258 the Secretary of State must now release a contemnor unconditionally once he has served one half of his sentence, but by s 258(4) may release before the half way point in exceptional circumstances on compassionate grounds.

But what is the position of a contemnor who has spent time on remand following his arrest either under a power of arrest or a warrant of arrest under s 47 of the Family Law Act 1996 up to the time of his committal to prison? Until 4 April 2005, the general law relating to credit for time on remand was contained in s 67 of the Criminal Justice Act 1967 but by s 104(1) of the 1967 Act, contemnors were specifically excluded from the provisions for automatic credit for time on remand contained in s 67. The position was extensively reviewed by the Court of Appeal in Delaney v Delaney [1996] 1 FLR 458, where the absence of any power to give credit for time on remand formed a central plank of the argument advanced by Mr James Munby QC, counsel for the Official Solicitor, which was accepted by the court. However, s 67 was repealed with effect from 4 April 2005 by Sch 6 of the Crime (Sentences) Act 1997 and replaced by provisions in ss 240-242 of the Criminal Justice Act 2003, which now permit the court to direct that time spent on remand may count towards any sentence of imprisonment imposed by the court and require the judge to specify in open court both the number of days spent on remand and the number of days which will count towards the sentence of imprisonment imposed.

To read the rest of this article, see June [2009] Family Law journal.

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