Former Solicitor Sent back to Prison for Contempt: Court of Appeal

A former solicitor who was jailed for contempt of court for failing to deliver up documents to the Solicitors Regulation Authority, and was thereafter sentenced to a further 12 months’ imprisonment for her continuing failure, having obtained a stay of execution of that sentence, appealed to the Court of Appeal, the essential question being whether the judge erred in finding that she had capacity to defend proceedings for contempt of court: Solicitors Regulation Authority Ltd v Khan & Ors [2024] EWCA Civ 531  Newey, Arnold, Nugee LJJ

In domestic law the position was clearly established that although contempt proceedings were often described as ‘quasi criminal’, they remained civil proceedings. This meant in practice that while contempt proceedings were not in fact criminal proceedings, they had an obvious resemblance to them and in some respects similar principles applied. Newey LJ cited a number of examples but added that they were nonetheless civil proceedings.

It therefore depended on the particular point in question. The court found entirely persuasive the analysis of Mr Philip Ahlquist for the SRA which was that committal proceedings in civil courts were civil litigation governed by CPR Part 81. As such they were subject to the other provisions of the CPR including Part 21, which contained ‘special provisions which apply in proceedings involving children and protected parties’. For these purposes ‘protected party’ meant a party who lacked capacity within the meaning of the 2005 Act to conduct proceedings.

CPR Part 21 did not spell out what it was to lack capacity to conduct proceedings. For this it was necessary to go to the Mental Capacity Act 2005. What that Act informed you in general terms was what it was to lack capacity, namely, to be unable through mental impairment or disturbance to make decision for oneself, and also told you in general terms what making a decision for yourself required you to be able to do: understanding, retaining and weighing information, including reasonably foreseeable consequences and communicating decisions. Unsurprisingly, it did not tell you what kind of decision you needed to make in order to conduct proceedings, and specifically in order to conduct proceedings as a defendant to committal proceedings.

In summary, the criminal test of fitness to plead and the criteria laid down in R v Pritchard (1836) 7 C&P 303 were not directly applicable to contempt proceedings where the test for capacity to conduct proceedings was that in the 2005 Act. But the Pritchard criteria may nevertheless assist the Court in assessing whether a defendant to contempt proceedings lacked capacity under the 2005 Act as illustrations of the sorts of decisions that such a defendant was likely to have to take in order to be able to defend proceedings.

That did not, in substance, differ from what the judge had said. Although he accepted that the test was that in the 2005 Act and not the fitness to plead test, he said that if he had found that Ms Khan was unfit to plead that would have been a powerful factor in deciding whether she lacked capacity and a strong reason for refusing to permit the committal application to proceed.

The reason the judge did not accede to the appellant’s submissions was not because he preferred one test to another but because he did not accept the conclusion of the medical expert that the appellant was unfit to plead.

A second submission that if the judge was not going to accept this as sufficient evidence of the appellant’s lack of capacity he should have adjourned the proceedings or further evidence to be obtained was also dismissed.

His Lordship considered that the judge asked himself the right question when he asked whether the evidence from Dr G was sufficient to cause him to direct further evidence or cross-examination. He concluded on the balance of probabilities that the evidence did not persuade him that the appellant lacked capacity. The appellant faced well-known difficulties in disturbing what was essentially an evaluative decision by a judge who was immersed in the detail of a case in a way which an appellate court could not be. The judge’s evaluation on all the material before him was not flawed.

A further ground of appeal was that the judge failed to warn the appellant that if she did not give evidence in her own defence an adverse inference might be drawn. He did not, however, rely on the appellant’s silence in reaching conclusions on liability.

The appeals were unanimously dismissed, Arnold LJ added that the appellant had filed affidavits running to 266 pages in the court below and chose to rely upon them in opposition to the application. It was remarkable, to his Lordship’s mind, that she was permitted to do so without consenting to be cross-examined upon them. Her election not to give evidence was made at a time when she was represented by solicitors and counsel; the proposition that she was deprived of the right to remain silent could only be described as preposterous.

The court declared that the stay of execution had now come to an end and issued a warrant of committal to prison.