Tag Archives: Correct legal test

Court of Appeal clarifies the legal test for appeal against a contempt of court sentence in a family case

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The Court of Appeal, Lord Justice Baker, with whom Lady Justice Andrews, and Lord Justice Nugee agreed, clarified the legal test for an appeal against a contempt of court sentence in a family case.

The appeal involved an immediate custodial sentence of six months for contempt of Court. The sentence was imposed following multiple alleged breaches of Court orders intended to secure the return of children from Iran to the UK, including one alleged breach where the Appellant expressed an intent not to comply with the Court order.

On the Respondent’s case, she visited the Appellant in Iran as he was spending more time in Iran following the death of his mother. During her visit, the Appellant sought to register his marriage with the Respondent in Iran. Fearing the consequences for her and the children, she decided to leave Iran with the children. On the Appellant’s case, she was required to obtain the Appellant’s consent before she could leave with the children. As she failed to obtain the same, she was apprehended attempting to leave Iran with the children without the Appellant’s consent: she then abandoned the children at Tehran Airport, so that the Appellant was forced to take custody of them by default.

Upon her return to the UK, the Respondent commenced proceedings for the return of the children to the UK. The children were made wards of the Court. A series of orders were made intended to effect the return of the children to the UK. Amongst other orders, the Court orders made provision for the Appellant to sign a notarised agreement consenting to the return of the children to the UK for a Court hearing. It was alleged that the Appellant failed to comply and one occasion indicated that he had no intention of complying with the Court order.

The Respondent commenced contempt of Court proceedings for various breaches of the Court orders. Mr Justice MacDonald found the breaches proven and imposed a six month custodial sentence for the relevant breaches.

On appeal, the Court of Appeal considered the relevant principles for reversing a contempt of court sanction in family proceedings, and determined whether the reasoning of their Lordships in the civil case of Lovett & Anor v Wigon Borough Council [2022] EWCA Civ 1631 applied to contempt of court in family proceedings. In that case, Birss LJ, with whom Stuart-Smith LJ and Edis LJ agreed, set out in a series of cases detailed guidance about the sentencing for breaches of orders under Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014. At paragraph 47 in Lovett, their Lordships condensed complex sentencing guidelines to three levels of culpability, namely:

“(A) high culpability – very serious breach or persistent serious breaches, (B) deliberate breach falling between (A) and (C); and (C) lower culpability – minor breach or breaches”.

At [56], their Lordships held:

“It cannot be over emphasised that the task of sentencing a defendant for breach of orders in contempt of court is a multifactorial exercise of judgment based on the particular facts and circumstances of the case before the judge. Any sentence must be just and proportionate.”

The Court of Appeal applied this reasoning and dismissed the appeal holding that the judge carried out a “multifactorial exercise of judgment based on the particular facts and the circumstances” and the sentence he passed was “just and proportionate”.

Arfan Khan acted for the Appellant instructed by CV Brooks Solicitors.

The judgment can be accessed here: https://caselaw.nationalarchives.gov.uk/ewca/civ/2023/532

Allami v Fakher [2023] EWCA Civ 532

Claimant seeks permission to appeal against the decision of Mostyn J in a naturalisation case

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Claimant seeks permission to appeal against the decision of Mostyn J in a naturalisation case

The Claimant was an indirect participant in war crimes during the civil war in Sierra Leone. He alleged that he was forced to train soldiers under or a “do or die” option in Sierra Leone. The soldiers in turn participated in war crimes. He was also a member of the AFRC, and an associate of Johny Paul Koroma, the former President of Sierra Leone, who was indicted, but never convicted of war crimes. The Claimant was granted asylum on the basis that there was a reasonable likelihood that he would face persecution if returned to Sierra Leone. He was granted indefinite leave to remain in the UK.

The Claimant applied for naturalisation under s.6 of the British Nationality Act 1981 in 2011, and in 2019. His second application was refused on 14/4/2021 by the Secretary of State for the Home Department (“the SSHD”). He commenced judicial review against that decision on the basis that there was a failure to allow an opportunity to address relevant matters of good character. The proceedings were withdrawn by consent which directed the SSHD to reconsider the decision. On 8/4/2022, the SSHD refused the Claimant’s application for naturalisation again.

The Claimant applied for judicial review on the basis that there was an error of law in that the decision maker did not consider the following in the exercise of her discretion and referred to in the published policy: (a) mitigation, duress and other defences, including the superior orders defence; (b) the degree to which the Claimant had distanced himself from his past membership or associations in Sierra Leone; and (c) the degree to which he was personally and directly involved in war crimes in Sierra Leone.

Permission for judicial review was granted by Mr Simon Tinkler (sitting as a Deputy High Court Judge) on all these grounds following a contested permission hearing at which the SSHD was represented by counsel.

The Claimant contended that the lawfulness of a decision under s.6 could be reviewed through a common law proportionality test following decisions of the UKSC.

Mostyn J appears to have accepted that the common law has proceeded based on an intersection between proportionality and reasonableness. The concept of disproportionate, and therefore, unlawful treatment, is easy to understand where the state is removing or limiting a right of the subject. He appears to have accepted that it is perfectly logical for the Claimant to argue that the measure of depriving him of a passport because of things he did nearly a quarter of a century ago is disproportionate.

However, Mr Justice Mostyn rejected the Claimant’s submission that the lawfulness of a decision under s.6 of the British Nationality Act 1981 could be reviewed with reference to a common law proportionality test. In holding so, he appears to have declined to follow the reasoning of the UKSC decisions in Pham [2015] 1 WLR 1591, Kennedy [2015] 1 AC 455, and Bank Mellet [2014] AC 700. The judge appears to have held that applying a proportionality analysis adopts a merit-based approach which steps into the shoes of the decision maker applying the decision of Mr Justice Jay in Begum v SSHD [2023] Appeal No SC/163/2019, and the UKSC decision in R (Keyu) v SSHD [2015] UKSC 69 (referred to in Begum).

Mostyn J does not appear to have ruled on the Claimant’s submission that the case of Begum is distinguishable, or wrongly decided considering higher authority. Nor did he make a ruling on other material submissions which undermine his reasoning.

The Claimant intends to seek permission to appeal from the Court of Appeal against the decision of Mostyn J.

Arfan Khan represented the Claimant and is instructed on appeal by Graceland Solicitors.

The judgment of Mostyn J can be accessed through the following link:

Mr Justice Mostyn – approved Judgment – Sandy v SSHD – CO-1813-2022 – 27 March 2023 Rev 1