Case No: B2/2014/1881
Neutral Citation Number: [2016] EWCA Civ 152 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SWINDON COMBINED COURT
ORDER OF MR RECORDER DE FREITAS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/03/2016
Before :

LORD JUSTICE TOMLINSON
and
LORD JUSTICE LEWISON
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Between :

	Swindon Borough Council	Appellant/
Claimant	
	- and -		
	Webb t/a Protective Coatings	Respondent/Defendant	

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Richard Shepherd (instructed by Law & Democratic Services, Swindon Borough Council) for the Appellant/Claimant
Jason Taylor (instructed by Richard Griffiths & Co.) for the Respondent/Defendant

Hearing date : 18 February 2016

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Judgment
Lord Justice Tomlinson : 
1.	Swindon Borough Council, “the council”, brings this unusual appeal pursuant to its powers as a General Enforcer under section 213 of the Enterprise Act 2002 to seek to restrain domestic infringements harmful to the collective interests of consumers.  The Respondent/Defendant Frank Webb is a rogue trader.  Mr Webb’s particular modus operandi is all too familiar.  He would call unannounced at the homes of elderly and vulnerable people and pressurise them into permitting him to carry out work of very dubious utility in the nature of spraying weeds on drives and paths, cleaning drives and paths and applying an allegedly protective sealant, sanding block-work and laying asphalt.  The cash price for this largely worthless and shoddily executed work frequently increased shortly after his instruction.  
2.	Mr Webb was on Thursday 18 February 2016, when this appeal was heard, in prison.  He was aware that the appeal was to be heard but did not attend.  His interests were represented by his Counsel, Mr Jason Taylor. 
3.	In June 2006 the council began enforcement proceedings against Mr Webb with the concurrence of the Office of Fair Trading.  An order was made by Judge Wade in the Swindon County Court on 11 July 2006 which in due course was amended by Mr Recorder Moger QC sitting in the same court on 2 April 2007.  The operative parts of that Order read: 
“IT IS ORDERED THAT . . . 
The Defendant, whether by himself or by instructing or encouraging any other person whether in the course of his business or any other business, refrain from the following and from carrying on any similar course of conduct in the course of his current or future business namely: 
1.	Contravening section 4 Business Names Act 1985 by not specifying the name of each partner or in the case of an individual, their name on all business stationery.  
2.	Contravening section 4 Consumer Protection (Cancellation of Contracts Concluded Away from Business Premises) Regulation 1987 by failing to notify consumers in writing of their cancellation rights.
3.	Consenting to or conniving in any conduct, or course of conduct, specified in paragraphs 4, 5, 6 and 7(o) and of the Particulars of Claim by: 
(a) any body corporate of which the Defendant is (or purports to act as) a director, manager, company secretary or other similar officer 
(b) any partnership (whether a limited liability partnership or not) in which the Defendant is a partner 
(c) any business in which the Defendant has a controlling interest as defined by s. 222(3) and (4) of the Enterprise Act 2002.  
4.	An order that the Defendant pay the Claimant’s costs of £551.11.
5.	Defendant to pay further costs to the Claimant of £847.50, to be paid within 3 months.  
IF YOU DO NOT OBEY THIS ORDER YOU WILL BE GUILTY OF CONTEMPT OF COURT AND YOU MAY BE SENT TO PRISON”
Both orders were served personally on Mr Webb – the first on 18 August 2006 and the second on 25 April 2007.  
4.	In 2014 the council instituted proceedings seeking Mr Webb’s committal to prison for contempt of court, relying upon evidence of multiple breaches of the order as amended.  The application came before Judge Ambrose in the Swindon County Court on 22 April 2014.  He found that Mr Webb had been properly served with the proceedings, although he did not attend, as indeed he had failed to attend on an earlier occasion.  In his absence the judge found that on numerous occasions since 2006 Mr Webb had been reminded of his obligations generally and specifically in relation to the order.  Having heard evidence from several vulnerable victims the judge found proved four instances of breach of the order.  He committed Mr Webb to prison for contempt for four months in respect of each of each of the breaches, the four terms to run concurrently.  
5.	The order made by the judge was recorded on standard form N79.  That part headed “IMMEDIATE CUSTODIAL ORDER” provided: 
“It is ordered that MR FRANK WEBB be committed for contempt to Her Majesty’s Prison (be detained under section 9(1) of the Criminal Justice Act 1982) at BRISTOL for a (total) period of 4 MONTHS or until lawfully discharged if sooner, and that a warrant of arrest and committal be issued forthwith. 
And the contemnor can apply to the (court) (judge) to purge his contempt and ask for release. 
[And, as the court by order dated          dispensed with service of the notice of application for a committal order. 
It is ordered that the contemnor be brought before a judge of this court as soon as practicable.]”
I particularly draw attention to the parts scored through.  The court had not dispensed with service of the notice of application for committal.  On the contrary that notice had been properly served on Mr Webb as recorded by the judge.  
6.	A Warrant of Committal to prison on Form N80 was also issued.  This provided: 
“To	▪	the District Judge and Bailiffs of the Court
▪	every constable within his jurisdiction
▪	the Governor (of Her Majesty’s Prison at)
On the 22nd day of APRIL [19 ][2014] 
HIS HONOUR JUDGE AMBROSE (enter name of judge) has ordered that MR FRANK WEBB of 19 HAY LANE, WROUGHTON, SWINDON, WILTS SN4 9QU
should be committed to Prison (detained under Section 9(1) Criminal Justice Act 1982) for a period of 4 MONTHS  
You the District Judge and Bailiff are therefore required forthwith to arrest and deliver MR FRANK WEBB 
to (Her Majesty’s Prison at) BRISTOL 
And you, the Governor, are required to receive and keep MR FRANK WEBB safely (in prison) from the arrest under this warrant for a period of 4 MONTHS or until lawfully discharged, if sooner.
[And, as the court by order dated                       dispensed with service of the notice of application for a committal order,
It is ordered that you, the Governor, bring 
before a judge of this court at such time and place as the court shall specify and afterwards, return him to the prison unless the court orders his discharge.] ”
I again draw attention to the part of the standard form which was scored through as inapplicable.  
7.	On 30 April 2014 Mr Webb was arrested.  It would seem that he was arrested on the basis of several warrants, some issued by the Magistrates Court, as well  as the warrant issued by Judge Ambrose in the County Court.  It would seem that he was brought before the Swindon Magistrates Court, granted bail in respect of those matters the subject of the Magistrates Court warrants and sent to prison on the strength of the County Court warrant.  
8.	There is a suggestion in our papers that a judge at Swindon County Court was made aware on 30 April 2014 of Mr Webb’s appearance before the Magistrates Court, and that that judge then requested that he be brought before the County Court before being taken to prison.  
9.	On 6 May 2014 a Ms Probets of the Swindon County Court staff telephoned Rosemary Heath, a solicitor working in the department of the Director of Law and Democratic Services at the council.  She informed her that HH Judge Marshall, the Senior Civil Judge at Swindon County Court, had asked her to issue a Production Order for Mr Webb to return (sic) to court to give him an opportunity to purge his contempt.  We have seen no such order.  Ms Probets also told Ms Heath that Mr Webb was to be produced at 10 am on Friday 9 May 2014.  
10.	On 8 May 2014 at 10.14 hrs Ms Heath emailed a letter to Judge Marshall.  In it she asked for clarification as to the nature of the hearing fixed for the following day.  She questioned whether Mr Webb had made an application to purge the contempt for which he had been committed and questioned whether the contempt was capable of being purged.  She suggested that it might be appropriate for the matter to be listed before Judge Ambrose who, obviously, was fully aware of the background.  She complained that the council had not been given notice of “the application” pursuant to the Civil Procedure Rules, by which she meant CPR 81.31, of which more hereafter.  
11.	Judge Marshall was not at Swindon County Court that morning but she nonetheless answered Ms Heath by email very promptly, at 10.56 on the same morning.  Her email reads as follows: 
“Many thanks for your letter.  My understanding is that Mr Webb was arrested on several warrants, and should have been brought before the Court at the time of his arrest rather than being taken straight to prison, as he was committed in his absence.  He instead appeared before the magistrates and never appeared in the County Court.  
I also understood this hearing had been brought forward and was being dealt with today?  I am afraid I am not in the office, so you might like to contact the Swindon Civil team to find out whether that is the case, or not.”
12.	On receiving that email Ms Heath immediately telephoned the Swindon County Court.  Ms Probets was on leave.  She spoke to Ms Kemnitz.  Ms Kemnitz told her that Mr Webb had been released that morning because he had purged his contempt and she was typing the order which she subsequently emailed to Ms Heath.  
13.	Mr Webb had in fact appeared that morning at the Swindon County Court before Mr Recorder De Freitas.  The operative part of the Order made by the Recorder reads: 
“Upon Recorder De Freitas (sic) accepting that Mr Webb has in person this day in Court purged his contempt 
IT IS ORDERED THAT 
Mr Webb be released from custody.”
14.	Ms Probets subsequently informed Ms Heath that after she had “issued a Production Order for Mr Webb to purge his contempt on the 9th she was then asked by “the Cells” if this could be moved forward to the Thursday because it is difficult to move prisoners on a Friday.  She then issued another Production Order for 8 May 2014”.  Ms Probets said that she had telephoned the council on either Tuesday 6 or Wednesday 7 May to inform it that the hearing was to be on the Thursday, 8 May, rather than on Friday, 9 May.  The council has no record of being so informed.  Ms Probets also said that whilst Mr Webb did not apply to purge his contempt the Production Order which she had issued stated that that was its purpose.  
15.	Whatever may have been written on the Production Order, it is plain that when he appeared before Mr Recorder De Freitas Mr Webb had no idea why he was there.  He informed the Recorder that he was “not a good reader or writer”.  
16.	We have a transcript of the proceedings before the Recorder.  The entire episode can have lasted for only a very few minutes.  To be fair to the Recorder, it is quite unclear what materials he had before him, although he is said, at least at second hand, to have had the court file and a small bundle of papers in a ring binder.  The same source describes him as having had the same file as Judge Ambrose.  
17.	I have some sympathy for the Recorder who may well have been given this task at extremely short notice.  He had not hitherto been involved and may have had very little opportunity to assimilate the background to Mr Webb’s appearance.  He also appears to have been under the impression that it was at the direction of the judge who had made the Committal Order that Mr Webb had been brought before the court to apply to purge his contempt.  At all events the Recorder seems to have treated the process as something of a formality.  Having explained to Mr Webb why he had been sent to prison and why he was now in court, there took place the following exchange: 
“Rec DeFreitas	Well, can I tell you what this hearing is about?  This hearing is an opportunity which the judge who made the order committing you to prison for four months for those breaches …
Mr Webb	Yes.
Rec DeFreitas	… that judge made an order that you could come here today and apply to purge your contempt.  Do you understand that?
Mr Webb	Yes, sir, yes.
Rec DeFreitas	And in order to purge your contempt what you will need to do is to apologise to the court for breaching the terms of the injunction and promise to the court that you will not do it again.  Do you understand that?
Mr Webb	100%, sir, yes.
Rec DeFreitas	Are you willing to do that?
Mr Webb	Yes, I am very, very sorry.  I wish that I would have done it a lot sooner to be fair on you, I realise, I do apologise.  (inaudible).
Rec DeFreitas	And will you promise not to breach the terms of that order of 2007 again?
Mr Webb	No, sir.
Rec DeFreitas	Hmm?
Mr Webb	Yeah, I will promise you.
Rec DeFreitas	You understand what it is, and you understand that if you do breach those orders you are liable to imprisoned again.  You understand that?
Mr Webb	I am fully aware of that now, sir.
Rec DeFreitas	Yes.
Mr Webb	But I just, I, I really do apologise to you and (inaudible).  I really do apologise for that, all that, but I have had a lot of (inaudible), a lot of illnesses lately because I am suffering from spinal problems and bringing up blood and everything.
Rec DeFreitas	Yes.
Mr Webb	And I am not well.  And I have just been left on my own, to be fair with you.  I am now going through a heck of a lot of depression (inaudible) as well.  So I am 57 years of age and there is, you know, not really a lot, you know, you know (inaudible).
Rec DeFreitas	Okay but can you tell me this, why, why should I accept your promise not to breach the orders again when you appear to have ignored them?
Mr Webb	I have breached one order.
Rec DeFreitas	Okay.  Well, it was an order which made a series of restraints against you but, I mean, how sincere are you in promising not to …
Mr Webb	(inaudible) and sincere, sir, that it will never happen again, especially with what I have been going through this last fortnight, well, (inaudible).
Rec DeFreitas	Well, you have had a fortnight in …
Mr Webb	Oh yes, sir (inaudible).
Rec DeFreitas	… of incarceration.
Mr Webb	I said to the lady earlier now after today I would not have any more (inaudible).
Rec DeFreitas	Well, in those circumstances, Mr Webb …
Mr Webb	Pardon?
Rec DeFreitas	… in those circumstances I am prepared to accept in the light of your fulsome apology and the promise that you have made that you have purged your contempt and I will infer that you are making an application for release as envisaged by Judge Ambrose and I will therefore order your release.  But understand you have made yourself a marked man and therefore …
Mr Webb	I appreciate that, I am well aware of that.
Rec DeFreitas	… and therefore it is all the more to your advantage to keep your promise to the court not to breach those injunctions again.
Mr Webb	No, they won’t ever, no, I said to the lady earlier it will never happen again.  Before I come in here I didn’t even know what all this was about (inaudible), you know.
Rec DeFreitas	Yeah, well …
Mr Webb	I think I have learnt a lesson now this past, you know, few days.
Rec DeFreitas	Well, I hope so.  Well, I will, I will accept that you have purged your contempt and I will order your immediate release.
Mr Webb	Okay, sir, thank you.
Rec DeFreitas	But you understand that those injunctions still stand and you have to obey them?
Mr Webb	Yes, sir, I appreciate that, yes.  What I am going to do, sir, is get the family to give me more help because I have been trying to depend on myself because I am not a good reader or writer to be fair to you.  I do have some (inaudible) skills and everything like that, you know?  
Rec DeFreitas	Well, you do understand though that the …
Mr Webb	No, I cannot understand where (inaudible).
Rec DeFreitas	But you do understand that if you enter into the contracts that you have been entering into with customers you have to give them notice in writing of their cancellation rights.
Mr Webb	Okay, sir.  
Rec DeFreitas	You …
Mr Webb	Can I … okay, yes, I will listen to you first, yes.
Rec DeFreitas	You do understand that?
Mr Webb	Yeah, I really understand that now, yeah, I understand that.
Rec DeFreitas	Right.
Mr Webb	And I was going to say to you, now, a lot of people (inaudible) have been telling me if a customer wants a job done, right, (inaudible) could you, have you got to have it in writing that you have got to, you can waiver that 7-day cooling off period?  
Rec DeFreitas	In your case …
Mr Webb	This is what I have been trying to find out.
Rec DeFreitas	Well, in theory that is possible but in your case, Mr Webb, given the terms of the injunction your only safe course is actually to give them a notice in writing, notice of their cancellation rights …
Mr Webb	Yes.
Rec DeFreitas	… and you have got to prove, you will probably have to prove that you have done that.  Of course, they may not wish to exercise those rights but you, according to the injunction, have got to give them notice …
Mr Webb	(inaudible), to, yeah, to (inaudible).
Rec DeFreitas	… that they have the right.  You understand that?
Mr Webb	Yes, sir, very much so, yes.
Rec DeFreitas	Yes.  Very well.”
18.	The council appeals against the order made by the Recorder, contending (1) that the procedure which led to Mr Webb’s appearance before him was flawed, (2) that the court failed to ensure that it had sufficient and/or appropriate material before it so as to be able to make a proper determination, (3) that the court failed to invite the council to address the court and/or provide additional information so as to assist the court in making a proper decision and (4) that in any event, the final decision of the court to regard the Respondent’s contempt as purged and to discharge him was unduly lenient and unjust.  In his skeleton argument prepared on 24 May 2014 Mr Richard Shepherd, who appears for the council, submitted that the order of the Recorder should be set aside and that the Respondent should be ordered to surrender to his local police station and be returned to prison to serve the remainder of his sentence.  
19.	On 3 September 2014 the council was given permission to appeal.  The appeal was initially listed to be heard in May 2015.  At that stage Mr Webb’s return to prison was still pursued by the council.  For whatever reason the appeal was not then heard.  At the hearing before us on 18 February 2016, some 20 months after Mr Webb’s release by the Recorder, Mr Shepherd did not suggest that return to prison to complete the sentence originally imposed remained a realistic option.  It seems that Mr Webb has in any event been incarcerated for most of the time since May 2014 and that he remains in prison.  The suggestion was that some of that period represents sentences for conduct pre-dating May 2014, whilst some relates to a fraud post-dating May 2014 in respect of which criminal offence a sentence has been imposed.  
20.	The council pursues the appeal not to secure that Mr Webb completes his 4 month sentence but for other reasons.  First, it wishes to establish that the procedure here followed was irregular.  Second, it wishes to have it emphasised that the restraining order to which Mr Webb remains subject contains a real sanction for disobedience in the shape of a prison sentence which Mr Webb can expect ordinarily to have to serve in full.  Third, the council wishes Mr Webb and other rogue traders to be under no illusion that release from a sentence of imprisonment imposed for proved breaches of a restraining order can be secured merely by turning up at court and proffering an apology.  Mr Shepherd submits that it will have taken courage and determination for the various vulnerable victims of Mr Webb to pursue their complaint and to attend court to give evidence, and that the local community should have the comfort of knowing that, when the local authority intervenes on its behalf, orders made by the court in response will secure them some respite from the activities of unscrupulous rogues such as Mr Webb.  I can understand why the council feels aggrieved at what has happened here and why it has thought it appropriate to spend council Taxpayers’ money in an attempt to vindicate its position and to try to ensure that it does not happen again.  
21.	CPR 81.31 provides: 
“Discharge of a person in custody
81.31 
(1) A person committed to prison for contempt of court may apply to the court to be discharged.
(2) The application must –
(a) be in writing and attested by the governor of the prison (or any other officer of the prison not below the rank of principal officer);
(b) show that the person committed to prison for contempt has purged, or wishes to purge, the contempt; and
(c) be served on the person (if any) at whose instance the warrant of committal was issued at least one day before the application is made.
(3) Paragraph (2) does not apply to–
(a) a warrant of committal to which CCR Order 27 rule 8, or CCR Order 28 rule 4 or 14 relates; or
(b) an application made by the Official Solicitor acting with official authority for the discharge of a person in custody.
(4) If the committal order is made in a county court and –
(a) does not direct that any application for discharge must be made to a judge; or
(b) was made by a District Judge under section 118 of the County Courts Act 19845,
the application for discharge may be made to a District Judge.
(5) If the committal order is made in the High Court, the application for discharge may be made to a single judge of the Division in which the committal order was made.”
22.	That procedure was not followed in this case.  Indeed, Mr Webb did not make an application for his discharge.  He was simply taken to court for a reason he did not comprehend and told that in order to purge his contempt, an expression I doubt he understood, he should apologise to the court for breaching the terms of the injunction and promise not to do it again.  The council was given no notice of the hearing which in fact took place.  
23.	We asked Counsel whether Judge Marshall was correct in taking the view that before being imprisoned Mr Webb should have been brought before the County Court.  Neither was able to assist us on whether there is any such procedural requirement.  Mr Taylor however pointed out that the Committal Order could have provided, if service of the notice of application for a Committal Order had been dispensed with, for Mr Webb to be brought before a judge of the County Court as soon as practicable.  The Committal Order did not so provide, and the Warrant of Committal directed those to whom it was directed to arrest Mr Webb and to deliver him to HM Prison at Bristol.  That warrant too could have directed the Governor of the prison to bring Mr Webb before a judge of the court, but it did not.  As at present advised therefore, but I stress without the benefit of full argument, I think it likely that Judge Marshall was acting under a misapprehension arising from the circumstance that Mr Webb had been committed to prison in his absence.  
24.	Whilst I hesitate to be prescriptive in a matter where the liberty of the subject is at stake, and where the circumstances are likely to be infinitely various, what has happened in this case demonstrates the wisdom of ordinarily insisting in cases of this sort that the procedure provided by CPR 81.31 is followed where a contemnor seeks his discharge.  That will ensure that a local authority exercising its Enterprise Act powers will have the opportunity to place before the court considerations relevant to the question whether early discharge is appropriate.  Ordinarily an application for discharge should where possible be listed before the judge who imposed the order for committal.  
25.	Mr Shepherd accepted that the court had power here to make an order of its own initiative.  He suggested however that, at any rate in the County Court, such power derives solely from CPR 3.3(1) which provides: 
“Court’s power to make order of its own initiative
3.3
(1) Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.”
Mr Shepherd also drew to our attention CPR 3.3(3) which provides: 
“(3) Where the court proposes –
(a) to make an order of its own initiative; and
(b) to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.”
Mr Shepherd submits that the council was here “a party likely to be affected by the order”, and it is certainly true to say that the hearing was in proceedings to which the council is party, viz, its Action Claim No.6SN02237 brought in June 2006 which claim number appears on the two restraining orders, on the Committal Order and on the Warrant of Committal.  I agree therefore that if the court is minded to act of its own initiative, it should be mindful of CPR 3.3(3), although I note that CPR 3.3(4) gives to the court a power to “make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations”.  All this notwithstanding, it must be obvious that even where the court is minded to act of its own initiative, it ought ordinarily in a case of this sort, so far as practicable, to give notice of its intention to the person or body at whose instance the warrant of committal was issued.  That person has an interest which should be respected, and so far as practicable accommodated, by being heard on the question whether the contemnor should be released before serving the full term imposed, subject of course to any statutory entitlement to earlier release.  
26.	The real vice in what occurred here is that at the hearing the Recorder gave no real consideration to whether in the circumstances it was appropriate or just to release Mr Webb after he had served only 8 days of the 4 months sentence imposed for his four breaches of the order.  In large part that occurred because the procedure adopted deprived the Recorder of the assistance he would have received from the council had it been given notice of the hearing.  There is no lack of guidance in the authorities as to how a judge should in such circumstances approach his task, although the relevant cases are not reported in the mainstream series of law reports and probably not therefore widely known.  
27.	In Poole Borough Council v Hambridge [2007] EWCA Civ 990, [2008] CP Rep 1,  the local authority obtained an anti-social behaviour injunction against Hampton, pursuant to section 153(A) of the Housing Act 1996, to which a power of arrest was attached.  On 24 May 2007 Judge Meston QC found multiple breaches and imposed a sentence of 20 weeks imprisonment for contempt.  On 29 May 2007 Hampton applied to purge his contempt, apologised for his behaviour and confirmed that in future he would without reservation obey any orders of the court.  He submitted a detailed letter in support which read, in part: 
“These past few weeks have seemed like months and have given me time to reflect on my stupid and immature behaviour for which I am truly sorry. I would like to apologise to the court and all the people involved in this case. I cannot do anything to change the past, except apologise, but I can and will make sure that the residents of Grange Gardens can live their lives without having to worry about me or any of my family.”
The Council was represented at the hearing of Hampton’s application and Counsel addressed the court on its behalf.  On 8 June 2007 the Judge decided that Hampton had purged his contempt.  The judge said: 
“I am prepared to accept that your apology is a sincere one and a considered one and not simply a device to get you released early from prison. I am impressed by the statement in your letter that you have warned the children of the consequences for you and the mother if there are further problems and your reassurances for the future to give some peace to the residents of the area who have been plagued by the activities of your family. With some hesitation therefore I see no benefit in keeping you in prison any longer and I am … prepared now to say that your contempt has been purged and direct that you should be released forthwith.”
The council applied for permission to appeal against the judge’s order releasing Hampton from custody on the basis that it showed undue leniency, just as the council here say that the Recorder showed undue leniency to Mr Webb.  
28.	CJ v Flintshire Borough Council [2010] EWCA Civ 393, [2010] CP Rep 36, was an appeal against the refusal of the judge to order a contemnor’s early and immediate discharge from prison.  It too therefore concerned the very exercise which the Recorder had here to conduct.  
29.	Wood v Collins [2006] EWCA Civ 743 was rather different.  There the judge found that Collins was in breach of a non-molestation and occupation order and committed him to prison for 28 days, suspended on condition that Collins did not enter a defined area in which Ms Wood lived and worked.  Ms Wood sought to appeal the order on the ground that it was unduly lenient.    
30.	In Wood v Collins this court held that in exercising its power to increase a sentence of imprisonment for a civil contempt, the Court of Appeal acts on similar principles as does the Criminal Division when dealing with an application to increase a sentence on an Attorney General’s reference, pursuant to section 36 of the Criminal Justice Act 1988.  In Poole v Hambridge it was common ground that a similar approach should be adopted when considering whether Judge Meston should have directed Hampton’s early release, but the two members of this court who addressed that point did not agree that that was necessarily the correct conclusion.  Pill LJ reserved his position for a case where the nature of the test might be decisive.  In dealing with the substance of the application he said: 
“20. Hampton's conduct was undoubtedly unacceptable, including as it did many threats to residents, to whom it was a very serious nuisance and worry. His conduct was persistent. Committal, when the judge ordered it, was appropriate. There was no evidence of any previous custodial sentence which is to be taken into account. However, two weeks elapsed before Hampton's application was heard by the court, the judge having considered Hampton's letter. In my judgment, the judge was entitled to conclude that fourteen days in custody (which, by virtue of section 253 of the Criminal Justice Act 2003, amounts to a sentence of 28 days) was sufficient to entitle the judge to hold that the contempt had been purged. Taken with the five days which had been served previously, it was a sufficiently long period — a sufficient clang of the prison gates and a sufficient taste of custody — to persuade Hampton to behave himself in the future and to entitle the judge, within the discretion he had, to permit Hampton's release. The judge had very considerable knowledge of Hampton, who had appeared before him over many days. The judge was in the best position to assess the effect which custody had had upon him, and the significance of the statements made in the letter. 
21. In my judgment, there is no real prospect that this court would reverse the finding of the judge. The judge had regard to the material factors, including the interests of residents and the public interests.”
Buxton LJ said: 
“23. So far as the substance is concerned, I venture to express some caution about assuming that in a case such as the present the exercise is parallel to the jurisdiction exercised by the Court of Appeal Criminal Division on the Attorney General's reference. That was suggested in paragraph 8 of Wood v Collins, but only in connection with an appeal where it is sought to increase the original sentence of imprisonment for a civil contempt. It seems to me at least possible that the jurisdiction to purge for contempt appeals to a more fundamental aspect of the discretion of the court, which is to recognise that the situation in respect of which the sentence was originally imposed has changed because of a change of attitude of the contemnor, and that therefore the basis for continuing with the sentence has disappeared. But whichever of those views is correct, it is clear that the court will and must give very great weight to the view taken by the trial judge. In this case, as my Lord has pointed out, HHJ Meston had had the conduct of the case from the beginning, and it was he who was very well aware, as his earlier judgment demonstrated, of the implications, both for Mr Hampton in respect of his attitudes and for the surrounding neighbours and persons, who had been quite clearly seriously troubled by the conduct of Hampton and of his family. Not only did the judge have that in mind, but I have no doubt at all that he would have been reminded of those considerations by Mr Glen who appeared before him. Mr Glen has conducted this case fairly and with great thoroughness, and I have no doubt that the criticisms of, and alleged omissions or oversights in, the judge's approach that he put before us were fully emphasised to the judge. 
24. Particularly that being so, in my view it is quite impossible for this court to interfere with the conclusion that the judge reached, not least because it would be tantamount to this court saying that when the judge concluded that the apology was sincere and one on which he could properly act he had simply been deceived by the applicant - a conclusion that an appellate court should only come to with the very greatest of caution, granted that we do not have the judge's acquaintance with the case and with the appellant.”
31.	I respectfully agree with Buxton LJ that the exercise that faced the Recorder in the present case was not directly analogous with that confronting the Court of Appeal in determining whether a sentence is unduly lenient.  As pointed out by May LJ, agreeing with Watkins LJ, in Enfield London Borough Council v Mahoney [1983] 2 All ER 901 at 907(i), the object of committing to custody for a civil contempt is: 
“. . . first, to punish the contemnor for disobedience of an order of the court and second, to attempt to coerce him to comply with the order.”
From that it is apparent that there are in circumstances such as faced the Recorder here at least two distinct aspects to be considered, one of which is the extent to which the contemnor’s attitude has changed since imposition of the sentence.  Furthermore, if, as in the present case, the contemnor is not present on sentencing, the hearing at which release is considered may, and ordinarily will be, the first opportunity which the court has to assess to what extent the contemnor shows contrition and remorse.  
32.	It is from the judgment of Wilson LJ in CJ v Flintshire Borough Council that judges placed in the position of Mr Recorder De Freitas will perhaps derive the greatest assistance.  The Committal Order in that case was made in family proceedings brought by the council.  CJ presented a grave risk of sexual abuse to his children.  In June 2005 the court issued injunctions, one of which prohibited CJ from having contact with any of the children who then remained minors, namely the fourth, fifth and sixth daughters, save such as the local authority might arrange.  There were multiple breaches of the injunction.  On 17 November 2009, at a hearing of which CJ had notice although he failed to attend it, the judge committed him to prison for 21 months for contempt.  
33.	On 4 March 2010 CJ applied to the judge for his early and immediate discharge.  The judge refused his application and CJ appealed to the Court of Appeal.  
34.	Wilson LJ first drew attention to the obvious distinction between contempt arising out of breach of a mandatory order and contempt arising out of breach of a prohibitory order.  At paragraph 6 he said: 
“6. An application for an order for early discharge is often described as an application to purge the contempt. Speaking for myself, I regard the terminology of "purging" a contempt as not particularly helpful, at any rate in the present context. To purge a contempt would in my view ordinarily mean to atone for a contempt, eradicate it or cleanse it of its previous ill-effect. Although a person committed to prison for breach of a mandatory order to do an act (such as to hand over a child, as in Corcoran v. Corcoran [1950] 1 All ER 495) may reasonably be said to purge his contempt if he thereupon does the act or causes it to be done, the notion is less easily applied to an act which amounts to the breach of a prohibitory order and which, once done, cannot be undone.”
35.	The heart of Wilson LJ’s judgment is to be found at paragraphs 20-22 as follows: 
“20. In Enfield LBC v. Mahoney [1983] 2 All ER 901 May LJ observed at 907j that the reasons for a committal to custody for a civil contempt were twofold, first to punish the contemnor for disobedience of an order of the court and second to attempt to coerce him to comply with the order. He suggested that, on application for early discharge, the first question for the court should be whether the contemnor has been punished enough for the contempt. If not, then he would probably fail to secure discharge. But if so, the only remaining justification for continuing to keep him in custody was the possibly coercive effect of continuing to do so. That was, however, another case in which the contemnor had failed to comply with a mandatory order, namely to deliver up to Enfield an ancient cross, known as the Glastonbury Cross, which he had found on their land. So the case falls into what, in Lightfoot v. Lightfoot [1989] 1 FLR 414, Lord Donaldson MR, at 417B, later called "a second category which I might describe as a coercive sentence where the contemnor has been ordered to do something and is refusing to do it". Thus the reference of May LJ in the Enfield case to the "coercive" effect, namely whether, if he were to continue to be imprisoned, the contemnor would deliver up the cross, has to be adapted to the type of case of which the present is an example. So this part of the enquiry should be into the "protective" effect of continuing to keep the contemnor in prison and thus into whether an order for early discharge would be likely to lead to further breaches of the injunction and thus to compromise the safety of those for whose protection it was devised; cf Longhurst Homes Ltd v. Killen [2008] EWCA Civ 402, per Hughes LJ at [14]. 
21. With the advantage of more time for reflection than was vouchsafed to the judge, I consider that, had I been hearing the appellant's application for early discharge, I might have asked myself eight, somewhat overlapping, questions. In case they prove to be of any value to other judges confronted with applications for early discharge in similar circumstances, I set them out as follows: 
(i) Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt?
(ii) Would the interest of the State in upholding the rule of law be significantly prejudiced by early discharge?
(iii) How genuine is the contemnor's expression of contrition?
(iv) Has he done all that he reasonably can to demonstrate a resolve and an ability not to commit a further breach if discharged early?
(v) In particular has he done all that he reasonably can (bearing in mind the difficulties of his so doing while in prison) in order to construct for himself proposed living and other practical arrangements in the event of early discharge in such a way as to minimise the risk of his committing a further breach? 
(vi) Does he make any specific proposal to augment the protection against any further breach of those whom the order which he breached was designed to protect?
(vii) What is the length of time which he has served in prison, including its relation to (a) the full term imposed upon him and (b) the term which he will otherwise be required to serve prior to release pursuant to s.258(2) of the Criminal Justice Act 2003? 
(viii) Are there any special factors which impinge upon the exercise of the discretion in one way or the other?
22. I am clear that the success of an application for an order for early discharge does not depend on favourable answers to all the questions. Nevertheless the first is a general question which, as May LJ suggested, probably needs an affirmative answer before early discharge should be ordered. The second will surely require a negative answer. An affirmative answer to the third will usually (although not always: see, for example, the Enfield case, cited above) be necessary but may not be sufficient. As Lord Clyde, the Lord President, said in the Scottish Court of Session in Johnson v. Grant [1923] SC 789, at 791: 
"The mere circumstance that he presents a belated expression of contrition has, with regard to the public aspect of the matter, almost no importance at all. There is ample opportunity … for repentance before sentence is pronounced. The appeal is simply to the clemency of the court … and the idea must not be harboured that a person who has wilfully committed a breach of interdict can obtain remission of sentence by coming to the court and saying, "I realise my transgression and apologise for it" – however sincerely such an apology may be made."
I suggest that, subject to what I have said above, answers to the questions go into the melting pot; and out of it, once they have melted together, comes the conclusion.”
36.	I also draw attention to the following passages in the concurring judgments, which I think may be of assistance to judges when considering an application for early release: 
“Aikens LJ 
28. In the present type of case, if there is an application by a contemnor to the court for his early discharge from the term of imprisonment imposed, the court has to make a judgment on whether it is just that this should be done. It is not the exercise of a "discretion" in the sense that the word is frequently and often inexactly used. To my mind, the court has to consider two broad issues. First, despite the fact that the contemnor has not served the term originally imposed (which is itself subject to section 258(2) of the Criminal Justice Act 2003), has the contemnor demonstrated that he has now received sufficient punishment for his breach of the court's injunction? In this regard, the court will examine, at the least, whether the contemnor now not only accepts that he has been guilty of his contempt, but also that he is genuinely sorry for his misdeeds and repents them. Those sound old – fashioned, even religious, terms, but I think they best express what the court has to consider. There may be other things to be examined under this first question. If the answer to the question is "no, the contemnor has not so demonstrated that he has received sufficient punishment for the breach", then for my part, I cannot see how a court can consider an early release unless there are other, extenuating circumstances which require that the court consider the exercise of its power to grant an early release. 
29. But, assuming the answer to that first question is favourable, I think the court must ask, secondly: will the interests of justice be best served in permitting his early discharge?
Sedley LJ
32. I agree too with the analysis made by Wilson LJ of the practical difference in this context between the purging of contempt where the offence is breach of a mandatory order and where, as here, it is breach of a prohibitory order. In Harris v Harris [2001] EWCA Civ 1645, §21, Thorpe LJ accepted that "the application to purge is rooted in quasi-religious concepts of purification, expiation and atonement". In such a context, while compliance with a mandatory order may be the kind of proof of contrition which a court can evaluate, contrition sufficient to purge a breach of a prohibitory order is much more elusive and, many people might think, not really the business of the courts. Their task is completed, subject to any appeal, at the moment of sentence.
. . .
36. Meanwhile, judges will be assisted by the questions suggested by Wilson LJ, so long as they are treated not as a tick-list but as windows on a problem which will always be case-specific and to which, as often as not, there will be no single right answer. In this regard, however, I would draw attention to what Aikens LJ says about the dubious use of the word discretion to describe the power the judge of first instance is exercising. Judge Farmer in his judgment cited without comment a passage from Arlidge et al on Contempt (3rd ed, §14-8): 
"The power of the court to discharge is discretionary and unfettered. No doubt, however, modern practice and parlance would require a refusal to discharge to be justified by the test of necessity and proportionality to the desired objective, whether penal or coercive."
37. Although it has not featured centrally in this appeal, I wish to enter some provisional caveats about this passage. First, there are no unfettered discretions. A judge cannot let a contemnor out because he feels sorry for him or because he would not himself have imposed so long a sentence. There has to be a reason for discharge known to the law. Secondly, it is for the contemnor to advance such a reason for discharge, not for the court to find a reason for refusing it. Thirdly, this is not a matter or practice or parlance: it is a matter of substantive justice. This is why the vocabulary of judgment is more relevant than the vocabulary of discretion. Fourthly, it is at the point of sentence that necessity and proportionality govern judgment. When a judge comes to consider discharge from a sentence which has already been found both necessary and proportionate, he or she is looking at new factors, if there are any, albeit these may modify what is now necessary and what is now proportionate.”
37.	Since it is accepted, given the passage of time, that Mr Webb cannot now be returned to prison to serve the remainder of his 4 month sentence, I see no purpose in setting aside the Recorder’s Order.  Were we so to do, Mr Webb would in fact be at risk of return to prison.  But it will be apparent from what I have already said that in my view the Recorder did not here give proper consideration either to the question whether Mr Webb had received sufficient punishment for his breaches of the Order of the court or to the question whether the interests of justice would best be served by permitting his early discharge.  The apology and the earnest of future compliance which the court accepted were in the circumstances, and on the face of it, almost entirely devoid of content.  The Recorder was better placed than us to evaluate Mr Webb’s sincerity, but at first blush Mr Webb would appear to have done little more than to accede to the Recorder’s invitation to say what the Recorder told him he needed to say in order to secure his release.  It fell far short of the considered, spontaneous and reasoned contrition and understanding demonstrated by Hampton which persuaded the judge in that case to order early release.  Mr Webb might therefore regard himself as fortunate, and would do well to remember that he remains subject to the prohibitions contained in the Order of 2 April 2007, and that if he does not obey that order he may again be found guilty of contempt of court and sent to prison.  
38.	As we indicated at the conclusion of the hearing, the appeal is formally dismissed, but I hope that the appeal may have achieved something worthwhile in again drawing attention to the guidance available to judges when considering whether contemnors should be released before the expiry of the term of their sentences.  To that end, I hope that our judgments will be thought worthy of reporting in one of the mainstream series of law reports.       
Lord Justice Lewison :
39.	I agree.