Alex RKWhat is the test to decide whether you can defend yourself against a charge that you are in contempt of court? That was the question before the Court of Appeal in Solicitors Regulation Authority Ltd v Khan & Ors [2024] EWCA Civ 531.[1] Helpfully, but perhaps not entirely surprisingly, the Court of Appeal has made clear that the test to apply if charge is that you have committed contempt in civil proceedings is that contained in the Mental Capacity Act 2005. Giving the lead judgment of the Court of Appeal, Nugee LJ rejected the proposition that the approach should be that applied in criminal proceedings, ie whether the person is fit to plead and stand trial. He found “entirely persuasive” the argument put forward by the SRA, namely that the test was governed by Part 21 of the CPR, which applied to Part 81 CPR (setting out the procedure for committal proceedings in the civil courts). Part 21 imports the test for capacity set out in the MCA 2005. However, the MCA 2005:
56. […] unsurprisingly does not tell you what kind of decisions you need to make in order to conduct proceedings, and specifically in order to conduct proceedings as a defendant to committal proceedings. Here the experience of the criminal courts as to what sort of decisions a defendant might need to make, and what that means in practical terms, might indeed be valuable as an analogy. In this way the Pritchardcriteria, although not directly applicable to contempt proceedings, might nevertheless assist in assessing whether a defendant to contempt proceedings lacked capacity within the meaning of the 2005 Act. Thus if one takes the 6 things identified by HHJ Roberts, and endorsed by this Court, in R v M (John), they are as follows:
“(1) understanding the charges; (2) deciding whether to plead guilty or not; (3) exercising his right to challenge jurors; (4) instructing solicitors and counsel; (5) following the course of the proceedings; (6) giving evidence in his own defence.”
(see paragraph 45 above). With the exception of (3), the others are all just as applicable to a defendant facing committal proceedings for contempt as to a defendant facing criminal charges.
57. In summary, the position seems to me to be this. The criminal test of fitness to plead, and the Pritchard criteria, are not directly applicable to contempt proceedings, where the test for capacity to conduct proceedings is that in the 2005 Act. But the Pritchard criteria may nevertheless assist the Court in assessing whether a defendant to contempt proceedings lacks capacity under the 2005 Act as illustrations of the sort of decisions that such a defendant is likely to have to take in order to be able to defend the proceedings.
On the facts of the case before, the Court of Appeal found that the judge had applied the correct test, and had also been entitled not to adjourn the sanctions stage of contempt proceedings for further medical evidence as to the defendant’s capacity to conduct, on the basis that there was no real prospect of being persuaded to accept conclusions in a recently prepared report casting doubt on their capacity. Nugee LJ noted the first instance judge had properly directed himself that, had been satisfied that there was such a prospect:
94. […] he would have been prepared to find that the finality principle was outweighed or displaced by two factors, namely the real risk of injustice in imposing a sentence of imprisonment in those circumstances, and the fact that in any event the Court could not have proceeded to sanction her until the question whether she was a protected party had been determined and if she had been finally determined to be a protected party that would have cast significant doubt on the [earlier judgment reached that the defendant had committed contempt]
Comment
We so regularly see conflation of the concepts of mental capacity and concepts applied in the criminal context (see our webinar here, and this article here), that it is refreshing to see such a clear-eyed analysis from the Court of Appeal of the interaction between the two. The gilding on the lily would have been if the Court of Appeal identified the information that the defendant needs to be able to understand, retain, use and weigh to make each of the 5 decisions set out in the judgment of Nugee LJ. That may have to await another day, but at least it will be an exercise starting from a solid base.
[1] The judgment is a complicated one, as it covers many different grounds of appeal and cross-appeal; I focus here on the sections relevant to those concerned with capacity matters.
