The Court of Appeal reviews the right to silence in cases of contempt

The Court of Appeal today handed down judgment in Andreewitch v Moutreuil [2020] EWCA Civ 382. The courts have long since recognised the “absolute right of a person accused of contempt to remain silent” (Comet v Hawkex [1971] 2 QB 67). The Andreewitch judgment establishes that a judge must warn alleged contemnors of that right before they give oral evidence.

The dispute between Mr Andreewitch (PA) and Ms Moutreuil (MM) arose from family proceedings. In brief, MM applied to have PA committed for contempt due to his alleged breach of a freezing order. PA attended the contempt proceedings as a litigant in person. The judge strove for procedural fairness but did not warn PA of his right to silence. PA went on to give oral evidence that harmed his case. The judge subsequently ruled that PA had indeed been in contempt.

PA argued on appeal that the judge should have warned him of his right to silence before he gave oral evidence.

Counsel for MM argued that the absence of this warning was a technical fault, especially since PA was an experienced litigant. That fault did not invalidate the fairness of the proceedings. I argued on behalf of PA that the right to silence is at the heart of fair procedure. It is an essential safeguard that should be available to all alleged contemnors, but especially litigants in person.

The Court found in favour of the Appellant:

16. The starting point when striking the balance in this case is the duty upon a court hearing committal proceedings to ensure that the accused person is made aware that they are not obliged to give evidence and also warned that adverse consequences or inferences may arise from exercising the right to silence. … [W]hat matters is that the choice of how to proceed belongs to the litigant and not to the other party or to the court.

Andreewitch is significant for emphasising that the court must ensure an alleged contemnor is clearly warned of their right to silence. Those who hear the warning may decide it is better to stay silent and be thought to be in contempt, rather than speak up and remove all doubt. 

Christopher Sykes represented Mr Andreewitch on appeal, and was instructed by Robert Berg and Marc Livingston of Janes Solicitors