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Tag Archives: civil contempt v criminal contempt

Rock bands, impenetrable vocabulary and Peers of the realm making off with wards of Court

There’s a High Court case that I’m going to briefly write about, called Egeneonu v Egeneonu 2017 .  First though it needs an intro.

About eleven years ago, when I was younger and cooler, I had friends who were in a rock band. They were pretty good – it was sort of Swamp-rock before Kings of Leon got big, and they did some decent gigs. We went to a gig, and they were on third. So we got there early, because it was a venue we hadn’t been to before, to check it out and hear the other bands.  So, we all sort of thought we were fairly rock and roll – my friends were in a band, I was a friend of the band (I can’t play an instrument – I got demoted from triangle to ‘scrapey maraca thing’ in the school orchestra).   This venue made us think otherwise. The first clue was the amount of leather the people in the club were wearing , the second was that the only two drinks the bar was selling were Jack Daniels (straight up) and Heineken (in bottles, which were served with the caps still on – everyone else in the club was opening them with their teeth or they had knives). The first band came on, and immediately the lead singer stage-dived. Not that unusual a thing to see at a gig, but it is unusual to see someone do it when the front rows aren’t full of people to catch you, and the floor is concrete.  Once the lead singer got back up, they started their first song, which was called, without irony “I got f**d by Jesus”

 

This was a gig where Jim and William Reid might have thought , “Oh, this is a bit hardcore”

At that point, all of us looked at each other, and you could see that we were all thinking – “I thought I was pretty rock, but I’m out of my depth here”

This case of the President’s – I thought I was pretty law geek, but it was too much for me. I had to keep limping away and try to breathe non-geek air for a bit to recover – (watching You-Tube videos of lumberjacks, adverts for power-drills and such) – I didn’t think it was safe to go from this much geek to normal in one go, in case I got the geek-bends.

So I’m not going to talk about the case much – let’s just say that if you want to be able to distinguish what is a civil contempt of court and what is a criminal contempt of court, and particularly if you want to know THAT, and how that applies where you’re dealing with wardship, this case is (eventually) the answer.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2017/43.html

 

There were two bits that grabbed me though – and honestly, this might be the least geeky bits in the whole thing, the rest of it is way worse.

 

Firstly, this was a sentence that appeared without further explanation or clarification. To be fair, it’s an extract from a very old judgment, but it is a sentence in which I didn’t understand FOUR of the words. And not just didn’t understand them, had not an inkling or approximation or even a guess at them.

 

Here it is:-

The Court of King’s Bench held that the peerage and its privileges afforded no protection in such a case; and to make the authority more applicable, the Court illustrated the decision by referring to the writ of homine replegiando against which, if a peer was refractory, it was held to be clear that he must be committed; that is, if he eloigned the body of the villein or person sought to be replieved.

 

 

I particularly like that whatever was going on immediately prior to that, the Court felt that it could be ILLUSTRATED by referring to the writ of homine replegiando against which, if a peer was refractory, it was held to be clear that he must be committed; that is, if he eloigned the body of the villein or person sought to be replieved.   I.e this is an attempt at an explanation to make something simpler…

 

Let’s try and unpick it

 

Homine repligiando is a way of getting out of custody (like habeas corpus) but by upon giving bail. So a bit like bail.

If a peer was refractory – he would be stubborn or unmanageable, or resistant to some process.  (I like that, I might end up using it)

If he eloigned  –  to remove or carry away at a distance, or to move yourself a considerable distance away

Replieved –  to have recovered goods or property from their rightful owner.

 

So using an example of bail, if a peer was unmanageable, he must be committed, if he removed someone who ought to have been returned to his rightful place ?  I think.

 

You may need to do something ungeeky now to decompress – read some pages of Andy McNab’s Bravo Two Zero or something.

 

The next bit I liked was this case

 

  • For specific cases where these principles have actually been applied, they refer to two cases in particular which I need to consider in some detail: Wellesley v The Duke of Beaufort, Long Wellesley’s Case (1831) 2 Russ & M 639, (1831) 39 ER 538, and Re Crump [1963] Crim LR 666, 777, fuller report (1963) 107 SJ 682.
  • Long Wellesley was the father of a ward who, by order of the court, had been placed in the custody of third parties in Surrey; the order restrained Wellesley, although he was not a party to the suit, from removing her from their care or custody. Wellesley subsequently removed her from their house, took her to London and then arranged for her to be removed from the jurisdiction. Brought up before Lord Brougham LC, he professed not to know where she was and said that he would never bring her again within the jurisdiction of the court. He was committed to the Fleet for contempt, the order reciting that:

 

“His Lordship does declare the conduct of [Wellesley] in removing the said infant … and in concealing the present residence of the said infant to be a contempt of this Court; and his Lordship doth further declare the conduct of [Wellesley] in forcibly and without consent removing the infant ward of this Court, the king’s subject, beyond the realm, and his refusal now in person coram judice to inform the Lord Chancellor where the said infant is to be found, to be a gross and aggravated contempt of this Court.”

Wellesley sought his release, pleading privilege of Parliament as a Member of Parliament. Lord Brougham held, 665, that privilege protected against civil but not against criminal process. The question, therefore, was whether the contempt committed by Wellesley was criminal or merely civil. The Lord Chancellor held that the contempt was criminal, so Wellesley was returned to the Fleet.

 

  • In the course of his judgment, the Lord Chancellor, 669, posed a rhetorical question:

 

“Who are the persons most likely to be guilty of those very offences which this Court is most frequently called upon to visit with punishment in order to protect its wards? If other Courts have a certain proportion of their suitors in Parliament, this Court, from the importance of the matters brought before it, has a much larger proportion there; and if there be any cases in which members of Parliament – young commoners, and young lords – are more likely than others to become obnoxious to our jurisdiction, it is precisely in cases relating to the safety of heiresses and other wards.”

In which (I think) the Lord Chancellor gives a judgment in which he suggests that the most likely people to run off with young vulnerable female wards of Court are obviously MPs and members of the House of Lords, because that’s just the sortof thing that they do.   Perhaps he means that they were ‘rescuing’ said wards. (Also “to become obnoxious to our jurisdiction” is just lovely)

So there you go, you have learned a few new words, you have found that the President’s lung capacity for law-geekery greatly exceeds mine (by a factor of around fifty, I’d say) and that if you’d been doing wardship law in the 19th century, your biggest concern would have been wayward MPs and Peers scooping up the ward and making off with them.

I shall now eloign myself from your presence and I apologise for my refractory and indeed obnoxious behaviour in writing this piece.