Does Art 5 entail a right to legal representation when facing prison for contempt of court?

30 March 2016 by


Hammerton v. the United Kingdom, Application no. 6287/10 – read judgment.

The European Court of Human Rights has held that the detention of an individual following his breach of a civil contact order, where he had no legal representation, did not violate his rights under Article 5, ECHR (Right to Liberty and Security of Person). However, the decision not to provide compensation to the individual following a failure to provide him with a lawyer during domestic proceedings resulted in a violation of Article 6 (Right to a Fair Trial).

by Fraser Simpson


The applicant, Mr Hammerton, divorced from his wife in August 2004. Prior to his, he applied for contact with two of his five children. During these contact proceedings, the applicant’s former wife alleged that he had harassed her. As a result, the applicant gave an undertaking to the County Court that he could not contact his wife or her parents unless through his own solicitors. Further, the County Court prohibited, via an injunction, Mr Hammerton from using threatening violence towards his former wife.

Later, the applicant’s former wife applied to have Mr Hammerton sent to prison for breaching both the undertaking and the injunction. The applicant’s requests for contact with two of his children were ongoing. The judge, sitting in the Central London Civil Justice Centre, decided to combine the hearings on the applicant’s conduct and his request for contact with his children. During this hearing he was unrepresented. Mr Hammerton was sentenced to three months in prison for contempt of court due to his actions towards his former wife. After six and a half weeks, he was released in September 2009.

Mr Hammerton then lodged an appeal against the finding that he had been in contempt of court. Both the conviction and the sentence imposed were quashed by the Court of Appeal. The decision to hear both issues relating to the contact order and the potential contempt of court “led to inescapable errors in law”. The proceedings relating to the contempt of court were to be considered “criminal” and, according to the protections within Article 6(3), Mr Hammerton should have been provided with legal representation. Mr Hammerton then claimed damages in the High Court by relying on both the common law tort of wrongful imprisonment, and the scheme for payment of damages under the Human Rights Act 1998. However, both claims failed due to the fact that the decision taken to imprison the applicant was taken in good faith.

Mr Hammerton applied to the European Court of Human Rights and argued that the United Kingdom had violated his rights under Articles 5, 6, and 13.

Article 5

The applicant argued that his committal to prison was in violation of Article 5(1). The text of Article 5(1) reads:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law”

Despite arguments from the UK Government that Article 5(1)(b) was solely applicable, the Court considered that both Article 5(1)(a) and (b) were of relevance.

The next step for the Court was to consider whether the detention could be justified under Article 5(1)(a). There are three conditions that must be satisfied in order for such a detention to be justified – it must be lawful, lack arbitrariness, and not constitute a flagrant denial of justice.


The Court considered that not every procedural fault in proceedings that result in a detention results in “unlawfulness”. A distinction is to be made between faults that result in the decision being automatically unlawful (ex facie invalid) and those that are only invalid once they have been overturned by a higher court (prima facie valid). Only the former will be consider “unlawful” for the purposes of Article 5(1) (Mooren v. Germany, (GC), Application no. 11364/03, 9 July 2009, paras. 72-75).

In addition to jurisdictional issues, a detention could be considered automatically unlawful if flaws in the proceedings amounted to a “gross and obvious irregularity”. The Court referred to previous case law that stated the lack of legal representation of itself was insufficient to meet this stringent standard (para. 114). Accordingly, the detention cleared the first hurdle.


The existence of arbitrariness in the decision to detain often results from bad faith on the part of the decision maker. Additionally, if the detention has no link to the conviction relied upon under Article 5(1)(a), the detention will be considered arbitrary (para. 97). The Court, in applying these principles, held that there had not been any arbitrariness in the present case.

Flagrant denial of justice

The flagrant denial of justice test considers the extent to which the rights of the individual under Article 6 were infringed during the proceedings that lead to the detention. Not every violation of Article 6 will result in a flagrant denial of justice. The violation of Article 6 must go beyond “a mere irregularity or lack of safeguards” and result in “a nullification or destruction of the very essence, of the right guaranteed” (para. 99). Whilst Mr Hammerton had not been provided with a lawyer, as required under Article 6(3)(c), this did not amount to a flagrant denial of justice. To hold that such a standard was met would “come close to removing the distinction between a violation of Article 6 and a flagrant denial of justice” (para. 119).

Due to the fact that the detention did not fall short of any of the applicable standards, the detention was justified under Article 5(1)(a). As a result, the Court did not consider it necessary to answer the question of whether the detention was justified under Article 5(1)(b) (para. 120).

Article 6 and 13

Although the domestic courts had recognised that the proceedings had violated the right to legal assistance under Article 6(3)(c), the applicant argued that he should have been entitled to compensation in order to properly address this violation.

In addressing this issue, the Court considered whether Mr Hammerton could still be considered a “victim”. There would be no need for the Court to consider the issue if the individual has been adequately compensated by domestic authorities for the violation of Article 6.

The Court considered that if the applicant had been provided with legal assistance during the domestic proceedings then this would have likely had an impact on the outcome of the case by significantly reducing his prison sentence. The Court stated that the mere acknowledgment that the applicant’s rights had been violated was insufficient to remedy this significant disadvantage he had been subjected to – he should have been provided with financial compensation. (para. 137). Accordingly, the Court held that there had been a violation of Article 6 due to the lack of legal representation during the domestic proceedings.

Additionally, the fact that he had not been provided with such financial compensation following the Article 6 violation demonstrated that no effective remedy existed at a domestic level. Thus, the applicant’s right under Article 13 had also been violated.

Conclusion and Article 41

The Court’s final task was to consider the level of compensation owed to the applicant for the violation of his rights under Articles 6 and 13. Whilst compensation (described as “just satisfaction” by the Court) is discretionary under Article 41, the Court’s findings that the domestic courts should have provided financial compensation to the applicant strongly suggested that the Court should afford Mr Hammerton financial compensation. The Court decided, having considered the potentially shorter period of imprisonment had the rights under Article 6 been complied with, that a sum of 8,400 Euros should be paid to the applicant by the UK Government (para. 162).

Dissenting Opinion

The Court decision was reached bya majority of 4 to 3.

The dissenting judges found that the detention could not be justified. Instead of focusing on Article 5(1)(a), the minority considered that Article 5(1)(b) should be applicable due to the fact that it was on this ground that the Government attempted to justify the detention (paras. 3-5 of partial dissent) The arbitrariness test applicable to Article 5(1)(b) is more stringent than the test relevant to detentions justified by reference to Article 5(1)(a).

The minority found that the decision to detain the applicant was arbitrary, and thus not justified under Article 5(1)(b). The domestic judge had, in the words of the Court of Appeal, “paid no heed to the purpose of punishment in contempt proceedings” when setting the sentence and, further, the whole sentencing proceedings had been “fatally flawed”. (para. 22 of partial dissent).

The minority also considered that the decision to detain the individual should have been considered automatically unlawful (ex facie invalid). This test, equally applicable to Article 5(1)(b) and (a), had not been met due to the “very serious procedural defects” in domestic proceedings that resulted in the applicant’s “complete lack of any meaningful ability to defence himself” (para. 19 of partial dissent) In addition to the issues surrounding legal representation, the decision to combine the contact order hearing with a hearing relating to the alleged contempt of court concerned the minority. Due to the fact that the contempt proceedings were criminal in nature, the applicant had a right to remain silent, which could not co-exist with his need to establish his claims regarding his request for contact with his children. These “gross and obvious irregularit[ies]” in the proceedings resulted in the detention being unlawful under Article 5(1) (para. 20 of partial dissent).


In short, civil contempt proceedings that can result in detention should be considered “criminal” for the purposes of Article 6. Whilst this does not mean such proceedings are criminal as a matter of domestic law, in future, the full defence rights provided in Article 6(2) and (3) should be provided to the individual due to the proceedings possessing a “criminal nature” for the purposes of the ECHR.

1 comment;

  1. […] Does Art 5 entail a right to legal representation when facing prison for contempt of court? – Mr Hammerton then claimed damages in the High Court by relying on both the common law tort of wrongful imprisonment … Mr Hammerton applied to the European Court of Human Rights and argued that the United … […]

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: