The Right to Silence in Committal Proceedings
Don’t Let Your Omissions be the Grounds for an Appeal
Re Andreewitch v Moutreuil  EWCA Civ 382
This case once again reminds counsel and solicitors of their duty to assist the court and that the duty is of particular importance when considering procedural matters where a person’s liberty is as stake. The failure of the judge in not warning the respondent of his right to silence would not have occurred had counsel drawn the court’s attention clearly to the procedural requirements for a “fair” committal hearing; ignore that at your peril.
In Andreewitch, counsel for the applicant failed to remind the judge that the respondent, who appeared in person, had a right to silence. On appeal, counsel for the Applicant tried to argue that the respondent had received the necessary warning as he referred to Rule 37.27(2) (“At the hearing, the respondent is entitled –(a) to give oral evidence, whether or not the respondent has filed or served written evidence, and, if doing so, may be cross-examined”) in his skeleton argument for the committal hearing.
The Court of Appeal per Lord Justice Peter Jackson was clear that the reciting of the rule did not provide a clear warning and accordingly the respondent had not received the relevant warning and the appeal succeeded.
The Court of Appeal went on to restate the importance of the check-list set out by Theis J in Re L  EWCA Civ 173 paragraph 78 as follows:
Before any court embarks on hearing a committal application, whether for a contempt in the face of the court or for breach of an order, it should ensure that the following matters are at the forefront of its mind:
- There is complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is: contempt in the face of the court, or breach of an order.(2) Prior to the hearing the alleged contempt should be set out clearly in a document or application that complies with FPR rule 37 and which the person accused of contempt has been served with.(3) If the alleged contempt is founded on breach of a previous court order, the person accused had been served with that order, and that it contained a penal notice in the required form and place in the order.(4) Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to.
(5) Whether the judge hearing the committal application should do so, or whether it should be heard by another judge.
(6) Whether the person accused of contempt has been advised of the right to remain silent.
(7) If the person accused of contempt chooses to give evidence, whether they have been warned about self-incrimination.
(8) The need to ensure that in order to find the breach proved the evidence must meet the criminal standard of proof, of being sure that the breach is established.
(9) Any committal order made needs to set out what the findings are that establish the contempt of court, which are the foundation of the court’s decision regarding any committal order.
It may seem counter-intuitive to take a step which is contrary to your client’s best interests but it is your duty to do so and to ensure that the hearing is fair.
10 April 2020