Dec 16
The claimant issued a contempt application on the ground that the defendant had breached a court injunction in that she had, inter alia, failed to remove the plants, wheelie bins, rubbish and foliage which obstructed the claimant’s right of way over their joint driveway. The claimant relied on two affidavits from her solicitor which set out offensive correspondence from the defendant, containing certain distressing allegations which were said to be intended to intimidate and threaten the claimant. The defendant did not appear for the committal hearing. Although there was no formal medical evidence before the court, the defendant had supplied some letters from doctors. The judge found that he was satisfied to the criminal standard that the defendant was in contempt of court by failing to comply with the order and remove the obstructions. Before sentencing, further communications were sent by the defendant, containing allegations of criminal conspiracy against the claimant’s solicitor, the district judge and the judge. In addition, threatening e-mails were sent to the court, addressed to the judge. At the sentencing hearing, the judge observed that the defendant was in continuing breach of the order, notwithstanding that some of the obstructing items had been removed. He imposed an immediate committal to prison of six months, stating that there was considerable culpability and harm and nothing to speak of mitigation. Furthermore, the judge did not consider that a period of suspension was appropriate, given the seriousness of the railing against the court order and everything and everyone connected to it. The defendant appealed on the grounds that her personal mitigation and circumstances (such as her age, state of health and the fact that this was the first committal application) had not been not properly considered, which had resulted in a disproportionate sentence being imposed.
On the appeal—
Held, appeal allowed. Undoubtedly, the defendant’s attitude to the court and the proceedings was relevant to sanction following a finding of contempt. An apology and a genuine attempt to comply with an order would often be very relevant to sanction. Equally, abundant evidence that the contemnor actually did hold the court in contempt and was intent on causing as much disruption and distress as possible would be relevant and would weigh in the opposite direction. However, although the need to punish for a breach and to secure rehabilitation were among the purposes of sanctions, it should not be forgotten that the principal aim of the imposition of sanctions in a case where the contempt was a civil contempt involving the failure to comply with a court order was to secure compliance with the order. The sanctions imposed should be the least onerous which would produce that result. Whilst there was authority for the proposition that the court in dealing with contempt should adopt a structured approach which reflected as far as possible the approach of the criminal court in sentencing, this was not a mechanistic approach and began with an assessment of culpability and harm. There were two further factors which militated against a civil court attempting to replicate the process of criminal sentencing as set out in the guideline for sentencing for breaches of anti-social behaviour orders and criminal behaviour orders: (i) the maximum penalty available to the court in a contempt case was two years’ imprisonment, whereas, for example, for offences of breaching an anti-social behaviour injunction or a criminal behaviour order the maximum term was five years, the relevant guideline giving an offence range of a fine to four years, which could not therefore be a reliable guide to sentence levels in civil contempt and (ii) equally, the same guideline prescribed community orders for some levels of offence of that kind, which the civil court could not impose. In the present case, although the harm caused by the breach itself had perhaps been relatively modest, it was very substantially increased by the defendant’s conduct in directing a torrent of vitriolic abuse at the clamant and her solicitor, and to the court. It was that factor which clearly meant that a significant prison term was required. However, given that such a sanction had been previously been applied and having regard to the defendant’s age and state of health the term should, clearly, have been suspended. Accordingly, the judge’s order for committal to prison would be quashed and replaced with a suspended order of imprisonment for three months, which would be suspended for 12 months on the condition that the original injunction was complied with (paras 26, 30–32, 35, 36).
John King (instructed by CLK Legal) for the defendant.
Luke Trim (instructed by Setfords) for the claimant.