Before:

 

1.	THE MASTER OF THE ROLLS : The applicant, Melvin King, appeared before District Judge Cowling on 29 August last. The judge found that Mr King had committed two assaults on bailiffs of the court. The first assault involved the appellant reversing the car, which was to have been the subject of execution by the bailiff, forcing the bailiff to jump out of the way to avoid being struck. The second assault arose when a woman bailiff was seeking to serve a summons in relation to the first assault and the appellant struck her a number of times.
2.	The appeal raises a number of practical points which are not without general importance. The first raises a question of jurisdiction of this court. Before turning to deal with that it is convenient to refer to Section 14 of the County Courts Act 1984, which is the provision under which District Judge Cowling found the assault proved and imposed the maximum punishment of three months' imprisonment consecutive in relation to each offence.
3.	Section 14 provides:
	If any person assaults an officer of a court while in the execution of his duty, he should be liable-     (a)   on summary conviction, to imprisonment for a term not exceeding 3 months or to a fine of an amount not exceeding level 5 on the standard scale, or both; or  (b)   on an order made by the judge in that behalf, to be committed for a specified period not exceeding 3 months to prison or to such a fine as aforesaid, or to be so committed and to such a fine,    and a bailiff of the court may take the offender into custody, with or without warrant, and bring him before the judge.  (2)   The judge may at any time revoke an order committing a person to prison under this section and, if he is already in custody, order his discharge.  (3)   A district judge, assistant district judge or deputy district judge shall have the same powers under this section as a judge."
4.	Subsection (3) was inserted in l990.
5.	The jurisdiction which a District Judge exercises under Section 14(1)(b) is unusual in that it is a jurisdiction in relation to what is a criminal offence involving an officer of the court. The section clearly has a close relationship to the power of a court to punish for contempt. That relationship is emphasised by Section 13 of the Administration of Justice Act 1960Acts, which is relied upon by Miss Johnson, on behalf of the appellant, for giving this court jurisdiction. That section states:
	(1)   Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings." This Paragraph is referred to in: Barnet v Hurst [22].
6.	There are further provisions which I do not need to read out contained in subsections (2) and (3) which deal, inter alia, with the powers of this court. Subsection (5) provides:
	In this section ´court´ includes any tribunal or person having power to punish for contempt; and references in this section to an order or decision of a court in the exercise of jurisdiction to punish for contempt of court include references-       ....  (b)   to an order or decision of a county court, or of any court having the powers of a county court, under [section 14.... of the County Courts Act 1984Acts],"
7.	The power which the District Judge was exercising in this case is specifically referred to in Section 13 of the Administration of Justice Act 1960Acts. Notwithstanding the clear language of Section 13, Mr Keith, who appears on behalf of the bailiffs and to whose argument we are indebted, argues that it is the wrong course to adopt to appeal to this court. He does not go so far as to argue that this court has no jurisdiction to hear appeals. As I understand his argument, he submits that in practice, at least in the ordinary case, its appeal to this court is not an appropriate course to adopt. He advances that argument because of other provisions of the County Court Rules which deal with appeals from District Judges to judges of the County Court.
8.	So far as interlocutory appeals are concerned, they are dealt with by Order 13 rule 1(10). So far as other decisions are concerned, they are dealt with under Order 37 rule 6. Order 37 rule 6 is in very general terms and says:
	"Any party affected by a judgment or final order of the district judge may, except where he has consented to the terms thereof, appeal from the judgment or order to the judge, who may, upon such terms as he thinks fit, -     (a)  set aside or vary the judgment or order or any part thereof, or  (b)   give any other judgment or make any other order in substitution for the judgment or order appealed from, or  (c)   remit the action or matter or any question therein to the district judge for rehearing or further consideration or,  (d)   order a new trial to take place before himself or another judge or the court on a day to be fixed."
9.	The type of appeal to which Order 37 rule 6 applies is an appeal where the judge, in relation to the decision of the District Judge, exercises a very similar jurisdiction to that which this court exercises generally in relation to final appeals from the county court. In that respect it differs from Order 13 rule 1(10) when the judge rehears the matter.
10.	In view of the concluding words of Section 13 of the Administration of Justice Act 1960, the immediate reaction is to regard Section 13(1) as overriding the general provision of Order 37 rule 6. However, similar language to that contained in Section 13(1) was considered by this court, presided over by the then Master of the Rolls, in Director General of Fair Trading v Stuart [1991] 1 All ER 129, [1990] 1 WLR 1500. That case concerned the wording of Section 42 of the Fair Trading Act 1973Acts which provided, so far as relevant:
11.	(1)   Notwithstanding anything in any other enactment, an appeal.... shall lie from any decision or order of any court in proceedings under Part III of this Act.  (2)   Any such appeal shall lie - (a) in the case of proceedings in England and Wales, to the Court of Appeal."
12.	In relation to that provision Lord Donaldson said:
	"It is said by counsel for Mr Stewart that this was a decision of the county court, albeit a decision of the registrar, and therefore an appeal lies to the Court of Appeal.    We have of course, given due weight to that submission, but the error lies in failing to appreciate that an appeal to the judge of the county court is in the nature of an internal appeal, and it is only if the litigant wishes to appeal outside the county court, an appeal from the county court to another court, that section 42 comes into play and specifies that the court shall be the Court of Appeal rather than the Divisional Court or the Restrictive Practices Court or any other court."
13.	Lord Donaldson then goes on to say why he is fortified in that conclusion by comparing the position of decisions of registrars with those of Masters in the High Court.
14.	The language of Section 42 is not as forceful as the concluding words of Section 13(1). Notwithstanding that, I am satisfied that the approach reflected in the passages from the judgment in the case to which I have just referred should be adopted in relation to Section 13.
15.	Lord Donaldson did not make it clear as to whether the effect of the right of appeal within the county court excludes the jurisdiction of this court. However, I am satisfied that the jurisdiction is not excluded. The position as to jurisdiction is that there are two alternative routes for appealing which someone in the position of Mr King can adopt: either he can go to the judge of the County Court or he can come to this court. But that being so, I have no doubt whatsoever that the appropriate course, in the ordinary way, for somebody in Mr King's position to adopt is to go to the local court and the local judge, rather than come to this court. This Paragraph is referred to in: Barnet v Hurst [23].
16.	In many instances that will be a more expeditious route of appeal for the appellant than coming to this court in the first instance. It is a course which will almost invariably be in his interest to adopt because if he gets a decision by the judge in his favour, he has that advantage. If he can challenge the decision of the judge as being wrong in law, he still has the opportunity to appeal from the judge's decision under Section 13 of this Act. In my view, the language of Section 13(1) would be equally apposite to cover an appeal from the decision of the county court judge.
17.	In addition, under Section 14(2) of the County Court Act, the person who is punished under that section has the ability to apply to the District Judge to revoke an order committing him to prison and to obtain his discharge in that way. There are thus three alternatives that are open to an appellant. However, so far as the appeals are concerned, this court normally will not be prepared to hear an appeal if the person concerned has not first exercised his internal right of appeal to which I have made reference.
18.	Through no fault of Miss Johnston and those who instruct her, this is the first opportunity that they have had to bring this matter before an appellate court because, unfortunately, a step which should have been taken was not taken under the relevant provisions of the rules. It seems to me, therefore, that the case having come before this court, especially as it involves points of principle, it is sensible that this court should deal with those points.
19.	In doing so we are assisted by the fact that the District Judge has provided us with comments on the appellant's skeleton argument. The District Judge was not sure of the propriety of his so doing and he enquired of the court whether this was an appropriate procedure for him to adopt. It will be appreciated that the District Judge is not represented before this court. There must be many situations where he is aware of matters which he anticipates that the court would not want to be in ignorance of in deciding an appeal of this court. In those circumstances it is appropriate and desirable that the District Judge should provide the court with his comments in a purely factual manner. But at the same time he should provide copies to the other parties involved. This is particularly important in this case because unfortunately the electronic recording in the County Court was not operating effectively when the matter was heard.
20.	The first point taken by Miss Johnston on the appeal is that the wrong form was used in securing the attendance of the appellant before the District Judge. This point, in my judgment, is misconceived. Miss Johnston thought that the form which would be appropriate in County Court proceedings for contempt should have been used, which is N78, but in my view the more appropriate form is N90. Therefore, the form which was used contained all the information Mr King required to know and there is nothing in that point.
21.	The next matter contended for by Miss Johnston is that the District Judge failed to adjourn the hearing so that the appellant could secure the attendance of three witnesses. If this point stood alone, I would not regard anything that had happened to be open to criticism. The appellant is undoubtedly extremely truculent. He made it clear that he did not want any help. His view was that he had not done anything wrong and that he did not need witnesses or representation. The attitude of the appellant in general was to object vehemently to any action by the court which was designed to extract from him the money which it was contended was due from him.
22.	However, because of the nature of Section 14 of the County Court Act, the court has a specific power to grant legal aid under Section 29(Bailii) of the Legal Aid Act 1988(Bailii). The side note to that section reads:
	"Representation in Contempt Proceedings  (1)   This section applies to any proceedings where a person is liable to be committed or fined-       ....  (b)   by a county court under section 14(Bailii)....of the County Courts Act 1984Acts    ....    and in this Act ´proceedings for contempt´ means so much of any proceedings as relates to dealing with a person as mentioned in paragraph 1(b)....above."
23.	Subsection (2) provides:
	"In any proceedings for contempt against a person the court may order that he be granted representation under this section for the purposes of the proceedings if it appears to the court to be desirable to do so in the interests of justice."
24.	It may be that the District Judge was not aware of the provisions of Section 29, which would be understandable because it is of very limited application. The provisions it contains are extremely important in cases of this nature. It allows legal aid, unusually, to be granted by a civil court without any examination of means.
25.	Putting it at its lowest, the appellant should have been informed by the District Judge, and I am sure would have been if the District Judge had been aware of Section 29, of his entitlement to legal aid. If he had known that this was a situation where he could get free advice, then his attitude to representation might have been very different. It was desirable that he should be so represented because the assault involving the backing of the car was not a straight-forward assault, it was an assault where the appellant says he had not committed the offence because he was not aware that the bailiff was in his way when he was backing the car. This involved considering the state of mind of the appellant and it was a situation where legal advice and representation for the appellant was very important.
26.	In addition, as was pointed out by my Lords in the course of argument, a truculent person, such as the appellant, will often benefit from legal advice over and above the benefit which is normally obtained because it would include advice as to the inappropriateness of the conduct with which he was involved. This was a case where, if the offences were found proved, it was almost inevitable that the appellant would be sent to prison. In my view the judge was under an obligation to carefully explain the position to the appellant.
27.	The appellant having been committed, the court used form 91. Miss Johnston says that this is the wrong form. The description of the form, which is important because it is a prescribed form and therefore has to be considered in the light of the language of the County Court Forms Rules 1982, is "Order of Commitment and/or Imposing a Fine for Assaulting an Officer of the Court or Rescuing Goods". However it then refers to Order 34 rule 1(2). Order 34 rule 1(2) is a rule which no longer exists. It is quite clear that the rules were changed subsequent to the form being prepared and there was inserted Order 34 rule 1A which said that:
	"Rule 1(5) of Order 29 should apply, with the necessary modifications where an order is made under section 14.... of the Act committing a person to prison."
28.	Order 29 deals with the enforcement of a judgment, ie civil contempt. Order 29 rule 1(5) provides:
	"If a committal order is made, the order shall be for the issue of a warrant of committal and, unless the judge otherwise orders-     (a)   a copy of the order shall be served on the person to be committed either before or at the time of the execution of the warrant; of  (b)   where the warrant has been signed by the judge, the order for issue of the warrant may be served on the person to be committed at any time within 36 hours after the execution of the warrant."
29.	When Order 29 directly applies, the appropriate prescribed form is order N79. This contains a statement that the contemnor can apply to the court or judge to purge his contempt and ask for his release. Form N91 contains no such statement. Miss Johnston says that in those circumstances effect should be given to the provisions of Order 29 rule 1(5) by using the more detailed form N79.
30.	However, while I recognise that argument is not entirely without merit, in my view it cannot stand having regard to the heading of the respective forms. Notwithstanding the obsolete reference to Order 34 rule 1(2) in form N91, that is the appropriate form. It would be helpful if it was to be amended so that it made reference to the right of someone committed to prison under Section 14(2) to apply for his or her discharge. That matter might in due course be considered by those responsible for these forms.
31.	The desirability of the form being amended is demonstrated by the facts of this case, albeit that the form, even in its amended form, was never served on the appellant as it should be under the provisions of Order 29 rule 1(5) which apply. I say that because when it was attempted to make the application in this case on behalf of the appellant, after lawyers had been instructed to obtain his discharge, the court contended that there was no such power to apply, although they were no doubt influenced in saying this by the fact that the words "purging contempt" were used, which are not strictly appropriate in relation to an application under Order 14(2). However, that did not happen. So far as the appellant is concerned, because of the conduct of the court the appellant was deprived of his right to apply to the judge. We do not know what attitude the judge would have adopted if there had been an application to him for discharge. This is, therefore, another unfortunate feature of this case.
32.	The question which rises is what should be done in the circumstances to which I have made reference? The conclusion to which I have arrived is that the failure to inform the appellant of his rights to legal aid in this situation was not a mere technicality, it was a matter of real substance. Therefore, although the appellant may be fortunate, he is entitled to have the committal orders which were made against him discharged. Mr Keith thought it right to draw this court's attention to the fact that we could order a re-hearing of the matter. As the appellant has already served the majority of the six months' imprisonment imposed on him, I am quite satisfied that that would not be the right course and I confine myself to ordering his discharge.
33.	LORD JUSTICE MILLETT: I have had more doubt whether this court has jurisdiction to entertain an appeal under Section 13 of the Administration of Justice Act 1960Acts. When that section was enacted, the order of the County Court referred to in Section 13(2)(b) must have been an order of the County Court Judge. It did not include orders of the District Judge because before l990 the District Judge had no jurisdiction to commit for contempt. Now that District Judges have been given power to commit for contempt with a right of appeal to a County Court Judge, consideration needs to be given to the question whether it is desirable that defendants should also have a concurrent right of appeal direct from the District Judge to this court; a right which he does not possess in cases to which Section 13 does not apply.
34.	I have entertained some doubt as to whether the extension of the powers of a District Judge has had that effect but I am not prepared to dissent from my Lord's views. In all other respects, I am in full agreement with everything my Lord has said, including his observations in respect of the possible amendment to form N91 and his order that the defendant should be immediately discharged.
35.	LORD JUSTICE POTTER : I agree.
	Order: Application allowed. Legal Aid Taxation.