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Home > Judgments > 2009 archive

Slade v Slade [2009] EWCA Civ 748

Appeal by former wife against sentencing for contempt of court. Appeal allowed.

The couple had married in 1993, just after they had had twins, but divorced in 2007. In 2008 as part of a residence order in favour of the wife she gave undertakings that she would not harass the husband and only communicate with him through solicitors until March 2009. During 2008 she then committed six breaches of the order, founding contempt including: setting fire to his motorbike, for which she was found guilty of malicious damage; repeatedly texting the husband; denouncing him falsely to the Benefits Agency and visiting his home and shouting allegations from the street. For each contempt, she received various sentences ranging from 6 to 21 months.

In this appeal, Wilson LJ reviews the circumstances and reasoning behind each sentence. In particular he reviews the case law relating to the possible “double jeopardy” of receiving a sentence for contempt on top of one for the criminal offence of malicious damage. He concludes that the judge’s handling of the factors that could be sentenced for over above the criminal sentence meant that the sentence was excessive and it was reduced to 6 months from 18. He then reviews and reduces the sentences for the additional contempts. Wall LJ also adds a supplementary judgment setting out some guidelines on sentencing for the future.
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Neutral Citation Number: [2009] EWCA Civ 748
Case No: B4/2009/0892
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NOTTINGHAM COUNTY COURT
HIS HONOUR JUDGE MITCHELL
(LOWER COURT NO: NG07P02132)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/07/2009
Before:

LORD JUSTICE WARD
LORD JUSTICE WALL
and
LORD JUSTICE WILSON
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Between:

MELANIE SLADE (Appellant)

- and - 

PAUL ANTHONY SLADE (Respondent)

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Miss Kathryn Taylor (instructed by Nottingham Family Law Associates) appeared for the Appellant.
Miss Jessica Lee (instructed by Fraser Brown, Nottingham) appeared for the Respondent.

Hearing date: 17 June 2009
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Judgment
 
Lord Justice Wilson:
1. A wife (as I will describe her although strictly she is a former wife) appeals against an order for her committal to prison for contempt of court made by His Honour Judge Mitchell in the Nottingham County Court on 3 April 2009. The judge found that she had perpetrated six contempts of court; and the overall effect of the six sentences which he passed upon her in respect of them was that she be committed to prison for 21 months. Under s.14 of the Contempt of Court Act 1981 the maximum term of imprisonment which he could have imposed upon her was two years; so he favoured an overall term only slightly shorter than the maximum. The applicant for the order for committal was the husband (as I will describe him) and he is the respondent to the appeal.

2. We conducted the hearing of the appeal on 17 June 2009 and, at its conclusion, we announced our decision, namely that it should be allowed and that the overall effect of the sentences passed by the judge upon the wife should be reduced from 21 months to six months. But we stated that we would put our reasons into written, reserved judgments; and Ward LJ has invited me to write the first.

3. The parties married in 1993; separated in 2006; and were divorced in 2007. Shortly prior to the marriage twins, a boy and a girl, were born to them and they are now aged 16. The son suffers an autistic spectrum disorder and attends a special school. At one stage following the separation he lived with the husband but early in 2008 he went to live with the wife and in effect became estranged from the husband. In the light of his disorder, he is less independent than most children aged 16; and, until the wife was taken to prison on 3 April 2009, she had continued to care for him.

4. On 11 March 2008, when a residence order referable to the boy was made in favour of the wife, both parents gave undertakings to the court. It was the wife’s undertaking of that date which was the foundation of the judge’s finding that in six respects she was in contempt of court. Her undertaking, duly signed, was that she would not, whether by herself or by instructing or encouraging any other person, harass or pester the husband and, specifically, communicate with him in any way save through solicitors. The undertaking recorded her acceptance that she should be bound by it until March 2009 and, although the absence of a specific date in March 2009 was the subject of consideration at another hearing, no part of this appeal turns upon the absence of a specific date in that no allegation of contempt was made against the wife in relation to any period after 17 December 2008, being, importantly, the date of issue of the husband’s notice to show cause why an order for her committal should not be made.

5. In his notice the husband made eight allegations of contempt against the wife; but the judge found two of them not proved and I need say no more about them.

6. It would be helpful if I were to renumber the six proven allegations in order, so far as possible, to put them into chronological order.

7.1    The first contempt relates to a most serious incident on 7 April 2008. The allegation of the husband, which, to a substantial extent, the wife admitted but all of which the judge found to have been proved, of course to the criminal standard, was that at approximately 3am the wife and the son visited the husband’s home; that the wife attempted to disable the external CCTV system which the husband had installed in order to deter her from misconducting herself there; that she encouraged the son to break the lock on the gate which led to the husband’s back garden; that the son broke it or otherwise gained entrance to the garden; that, with her encouragement, the son there set fire to the motor bicycle which was the husband’s prized possession; that the fire destroyed it and damaged the rear windows of his house, its guttering and even his computer; that she poured petrol both upon his motorcar, which was at the front of the house, and up against the house itself; that, albeit unsuccessfully, she attempted to set fire to the car by igniting the petrol; and that the wife thereby harassed the husband.

7.2     The substantial admission ultimately made by the wife in respect of the first contempt was that she went with the son to the husband’s home that night and set fire to the motor bicycle. It appears, at any rate from her written evidence, that her admission was that she personally set fire to it but nothing turns on whether she did so personally or whether she instructed or encouraged the son to do so. Albeit unsuccessfully, she denied the other elements of the allegation, in particular that she poured petrol upon the husband’s motorcar and up against his house and attempted to set fire to the car and that, beyond the destruction of the motor bicycle, there was any such further damage as the husband alleged. Her purported excuse for her grave misconduct was that she had learnt that the husband had raped the daughter of the marriage. The judge observed that, on the evidence before him, there was no foundation whatever for the allegation of rape.

7.3 The proper treatment by the judge of the first contempt raises a matter of some difficulty. For the wife, as well apparently as the son, was the subject of criminal proceedings in relation to the incident. On 20 August 2008 the wife pleaded guilty in the Nottingham Magistrates’ Court to the offence of causing malicious damage to the motor bicycle. She was placed on probation for 12 months in respect of the offence and was made subject to a compensation order in favour of the husband in the sum of £400. It will be noted that the husband’s assertion that the wife had thereby also committed a contempt of court was made in a notice issued more than eight months after the incident had occurred. In his affidavit in support of his application for committal the husband explained, entirely credibly, that the pendency of the criminal proceedings in relation to the incident, together with his hope that their result would deter the wife from further misconduct towards him, represented the explanation for much of the delay.

7.4 For the first contempt the judge sentenced the wife to a term of imprisonment for 18 months. On any view the contempt was profoundly serious; but the particular feature of the appeal against the sentence relates, of course, to the fact that, at any rate to a substantial extent, the incident had already been the subject of criminal proceedings.

8.1 The second contempt was that, whether by doing so herself or by encouraging the son to do so, the wife sent 117 text messages to the husband between 12 July and 8 December 2008 and thereby harassed and pestered him. Albeit at a late stage, the husband specified the content of the messages within a Scott Schedule. Many of them were abusive and referred to the allegation of rape to which I have referred; others threatened to expose the husband for having committed frauds of various kinds; and others referred in crude terms to the details of the sexual practices of the husband with the wife. The wife denied that she had sent any of the messages or caused the son to do so but the judge found that all 117 had been sent by her or, with her encouragement, by the son.

8.2 For the second contempt the judge sentenced the wife to a term of imprisonment for 21 months. In that all six sentences were expressed to be concurrent with each other, this sentence, being the longest, can be regarded as the primary sentence; and the wife’s complaint is that it was manifestly excessive.

9.1 The third contempt was that on about 15 September 2008 the wife completed a direct debit form in favour of the RSPCA in the sum of £8.50 per month, which she herself signed but upon which she entered the details of the husband’s bank account, and thereby harassed him. The husband alleged that in November 2008 he discovered the direct debit recorded on his bank statement and thereupon cancelled it. He also suggested that the details relating to his bank account had been taken by the wife from documents disclosed to her within the proceedings for ancillary relief ongoing between them. The wife denied that she had completed the direct debit instruction but the judge found that she had done so.

9.2 For the third contempt the judge sentenced the wife to a term of imprisonment for 12 months.

10.1 The fourth contempt was that, on 23 September and 1 October 2008 and on two further unidentified dates, the wife sent letters to the husband and thereby communicated with him otherwise than through solicitors. The husband exhibited the letters to his affidavit and, although the copies before us are hard to read, they seem to contain threats to cast a spell upon the husband and quotations from the bible. The wife denied that she had written the letters but the judge accepted the husband’s evidence that the writing on the envelopes was hers and so found that she had written them.

10.2 For the fourth contempt the judge sentenced the wife to a term of imprisonment for 12 months.

11.1    The fifth contempt was that on a date in September or October 2008 the wife made false allegations to the Benefits Agency that the husband was not entitled to the disablement benefits which he was receiving and that she thereby harassed him. The husband added that, on 8 October 2008, as a result of the wife’s allegations, an officer of Jobcentre Plus visited him and, presumably to the officer’s satisfaction, discussed the allegations with him, including her allegation that he had £275,000 in his bank account. The wife admitted that she had made false allegations to the Benefits Agency and that such was a contempt of court.

11.2 For the fifth contempt the judge sentenced the wife to a term of imprisonment for six months.

12.1 The sixth contempt was that, in the afternoon of 9 October 2008, the wife stood outside the husband’s home and shouted that he was not disabled, that she had informed the council that he was not entitled to his tenancy of that home, that he was a paedophile and that his solicitors were “fucking sluts”; and that she thereby pestered him and communicated with him otherwise than through solicitors. The wife denied that she had done so but the judge found the contempt proved.

12.2 For the sixth contempt the judge sentenced the wife to a term of imprisonment for six months.

13. The wife does not appeal against the judge’s conclusions that, beyond her admission of the fifth contempt and her partial admission of the first contempt, the six allegations were established and amounted to contempts. But she appeals against all six of the sentences.

Sentence for the First Contempt
14. In sentencing the appellant for the first contempt the judge said:

“3. It is argued … on your behalf … that, because you have already been dealt with by the criminal court for the criminal damage, … there is an element of double jeopardy in your being sentenced in this court too. I respect that argument. However, I am able, to a substantial degree, to ignore it, for the very simple reason that what I have to deal with you for is a gross breach of the undertaking.

4. You chose, between July and December of last year, a deliberate course of action of the most horrendous kind, through the use of text messaging …”

There was discussion before us about the meaning of the judge’s reference to a “gross breach of the undertaking”. Both counsel considered that, in that the first contempt could only be regarded as a gross breach, the judge was indicating that the circumstances of the first contempt itself entitled him substantially to ignore the double jeopardy. We suggested, by contrast, that the judge’s reference to a gross breach may have been a reference to the second contempt referable to the text messages, which, albeit in a fresh paragraph, he proceeded to address and for which he was to pass the longest sentence, thereby rendering the concurrent sentence for the first contempt academic.

15. In this troublesome corner of the law there are five relevant authorities; and none of them directly addresses our situation in which, at the time of the hearing of the application for committal, one of the grounds has, whether in whole (as here) in part, already been the subject of concluded criminal proceedings.

16. First, Smith v. Smith [1991] 2 FLR 55. A husband committed two breaches of a non-molestation order; indeed he thereby also broke the terms of a suspended sentence of committal. The breaches were extremely serious: the first was setting fire to his wife’s house and the second was assaulting her so severely that she required treatment at hospital. At the time of the hearing of the application for committal, and indeed also for activation of the suspended sentence, criminal proceedings were pending in relation to the two breaches. This court reduced from 12 months to six months the judge’s sentence for the two breaches and left untouched his activation of the suspended sentence. Balcombe LJ said at 64 G – H:

“On the question of sentence it is important that when the court is dealing with a case of contempt of court – that is, disobeying the order of the court – and the acts which it is alleged constitute that contempt are not merely potentially criminal acts but are, as in this case, already the subject of pending criminal proceedings, the court should not punish for the crime rather than for the contempt.

I agree with my Lord that the length of the sentence that the judge imposed in this case does suggest … that he had in mind the criminal aspect rather than the disobedience of the orders of the court, however serious that was, because it was the contempt that he was dealing with.”

17. Second, Hale v. Tanner [2000] 2 FLR 879. A woman committed a breach of a non-molestation order by telephoning a man, her former partner, on 41 occasions in the space of two hours. Earlier in the day of the hearing of the man’s application for her committal the woman had been the subject of a restraining order in the magistrates’ court for harassment of the man’s girlfriend; so there was no direct overlap of the proceedings in the two courts. Nevertheless, prior to explaining the court’s decision to reduce the length of the suspended sentence passed by the judge, Hale LJ helpfully articulated ten general propositions, of which the ninth was as follows:

“[34]   Ninthly, in many cases, the court will have to bear in mind that there are concurrent proceedings in another court based on either the same facts or some of the same facts which are before the court on the contempt proceedings. The court cannot ignore those parallel proceedings. It may have to take into account their outcome in considering what the practical effect is upon the contempt proceedings. They do have different purposes and often the overlap is not exact, but nevertheless the court will not want, in effect, the contemnor to suffer punishment twice for the same events.”

18.      Third, DPP v. Tweddell [2001] EWHC Admin 188, [2002] 2 FLR 400.  In the county court a husband had been committed for three months for assaulting his wife in breach of an injunction. Then he was charged in the magistrates’ court in respect of the same assault. The Divisional Court, Queen’s Bench Division, allowed the prosecutor’s appeal against the decision of the magistrates’ court to stay the proceedings as an abuse of the process of that court. But Latham LJ said:

“[18] However … the court’s dealing on the one hand with an allegation of contempt and on the other with a criminal charge should take into account what the court dealing in the alternative jurisdiction has or may do in relation to the individual when coming to a decision as to what would be the appropriate penalty.

[19] In this case one would assume that the court, if the respondent were found guilty of the criminal offence, undoubtedly will take fully into account the sentence of 3 months’ imprisonment that had been imposed … in deciding the appropriate way in which to sentence the respondent for the criminal offence.”

19. Fourth, Lomas v. Parle [2003] EWCA Civ 1804, [2004] 1 FLR 812. A husband was committed for four months for breach of an injunction against harassment: he had sent a letter to her through the post containing razorblades and newspaper clippings on the subject of death and had sent text-messages to her boyfriend in which he had threatened both of them with death. In respect of the letter he was the subject of pending proceedings in the magistrates’ court for the offence of breaching a restraining order. This court allowed the wife’s appeal against the length of the committal order as being too lenient but it reduced to eight months its otherwise proposed sentence of ten months in order to reflect the double jeopardy. In its judgment the court added the following guidance:

“[47]   However effectively the proceedings are managed, a perpetrator may face sentence for the same act which amounts to both a breach of an injunction made in family proceedings and also a crime under the Protection from Harassment Act 1997. Of course the sentencing courts do not share the same objective and operate in different ranges. The judge in family proceedings has to fit a custodial sentence within a range of 0–24 months. An important objective for him is to uphold the authority of the court by demonstrating that its orders cannot be flouted with impunity. Nevertheless there will be a shared deterrent objective in the punishment of domestic violence by imprisonment.

[48]   Clearly, therefore, the first court to sentence must not anticipate or allow for a likely future sentence. It is for the second court to sentence to reflect the prior sentence in its judgment in order to ensure that the defendant is not twice punished for the same act. It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence.” [my italics]

20. And fifth, H v. O (Contempt of Court: Sentencing) [2004] EWCA Civ 1691, [2005] 2 FLR 329. In breach of an injunction a man perpetrated a serious assault on his former partner’s mother, with whom his son resided. This court reduced to nine months the judge’s sentence of twelve months. It added, however:

“[43]. … we should regard any additional criminal punishment for the conduct which has been the subject of these contempt proceedings as duplicating the punishment which results from this judgment. As we have said, we do not understand that any such criminal proceedings will occur, but, if they do, the court should have this judgment drawn to its attention.”

In my view usefully, the court had also however drawn attention, at [39], to provisions in s.3 of the Protection from Harassment Act 1997. Subsection (1) enables a civil court to enjoin a defendant from harassing a claimant. Subsection (6) renders breach of such an injunction a criminal offence. But subsections (7) and (8) provide as follows:

“(7) Where a person is convicted of an offence under subsection (6) in respect of any conduct, that conduct is not punishable as a contempt of court.

(8) A person cannot be convicted of an offence under subsection (6) in respect of any conduct which has been punished as a contempt of court.”

21. Section 3 (7) of the Act of 1997 is not engaged in the present case because there was no injunction under the Act and accordingly the basis of the proceedings in the magistrates’ court was different. Nevertheless in my view the terminology of subsections (7) and (8) reflects true principle, namely that it is the conduct which is not twice punishable. Thus in my view we should not be misled by the words in [48] of Lomas v. Parle which I have placed in italics in [19] above: the second court should not so much reflect “the prior sentence” in its judgment as decline to sentence for such of the conduct as has already been the subject of punishment in the criminal court. It follows that, even if a civil judge were to regard the punishment given by the criminal court for certain conduct as too lenient, it would be improper for him to use his power of committal in respect of that self-same conduct in order to top up the punishment to what he regards as a proper level. What he must do is to sentence only for such conduct as was not the subject of the criminal proceedings.

22. Unfortunately no attention was given in the present case to the precept in [48] of Lomas v. Parle, quoted at [19] above, that the second court should be fully informed of the factors and circumstances reflected in the first sentence. So the judge had to proceed, as do we, only on the basis that the wife’s visit to the husband’s home and her wilful destruction of his motor bicycle had been the subject of the criminal proceedings, for which he should not again sentence her. His sentence had to relate only to:

(a) such other aspects of her conduct that night as he found to be proved and to amount to harassment of the husband, thus a breach of her undertaking and accordingly a contempt of court; and
(b) the fact, irrelevant to the criminal proceedings, that the wilful destruction of the motor bicycle also amounted to a breach of the wife’s undertaking and accordingly a contempt of court.

23. There was no particular difficulty for the judge in identifying the conduct which fell into (a) in [22] above. But I regard it as having been difficult for him to know how best to approach the exercise identified at (b). Although in the sequence of authorities to which I have referred, the courts have explained why the exercise is mandatory, they have not grappled with the proper manner of its performance. No doubt the seriousness or otherwise of the breach of the obligation to the civil court, whether undertaken or imposed by injunction, will in part be informed by what one might call its context, namely (for example) by whether it was the first breach or the last in a series of breaches, by the existence or otherwise of warnings of the consequences of a breach or further breaches and by the propinquity in time between the creation of the obligation and the breach. But how much further can the judge go into the circumstances or content of the breach without sentencing for the conduct for which sentence has already been passed? In the most general terms the judge must surely be entitled to assess the conduct’s gravity: for the graver the conduct, the more serious the contempt of the civil court. But, so it seems to me, any more profound assessment risks trespass upon the area for which sentence has already been passed. And, even when the breach is serious, the civil court must rigorously remind itself that, however problematical, its function is to sentence only for the fact of a serious contempt and not for the content of the serious contempt.

24. By virtue of the above, I have concluded that the judge’s sentence for the first contempt was manifestly excessive. I regard Smith v. Smith, cited above, as a reasonable guide to the proper sentence. Although in that case the criminal proceedings were not concluded, this court treated the case as one in which the civil court should not have sentenced for the conduct upon which the pending criminal proceedings were founded. There is in my view a broad correlation between the two serious contempts perpetrated on different occasions for which in Smith this court favoured a sentence of six months and the serious contempt in the present case which, albeit perpetrated only on one occasion, included acts of grave misconduct such as had not been the subject of criminal proceedings. Both cases also shared the aggravating feature that the contempts took place very shortly after the injunction had been made or undertaking given. In my view the proportionate sentence for the first contempt was six months.

25. In the decision of this court in Brewer v. Brewer [1989] 2 FLR 251 Purchas LJ observed, at 255C, that “in most cases where there is not a previous record of criminal violence, the court would normally find it sufficient to make the appropriate committal order and then suspend it …” It would in my view be good practice for the court which imposes a sentence of imprisonment for contempt always expressly to ask itself in judgment whether the sentence might properly be suspended. Judge Mitchell omitted to do so but his omission is of no consequence because he was right to conclude that the overall sentencing exercise upon which he was engaged in relation to the six contempts in principle demanded a series of immediate terms, all to be served concurrently.

Sentence for the Second Contempt
26. Although I readily acknowledge that the sending of 117 highly unpleasant text messages over five months represented serious harassment of the husband by the wife, the judge’s sentence of 21 months was grossly excessive, particularly when considered within the parameters of possible sentences for contempt set by s.14 of the Act of 1981. The harassment was, after all, non-violent and not even face to face. But in my view particularly noteworthy is the total absence of evidence from the husband that, during the five months, he had caused his solicitors to send any letter to the wife or her solicitors by which she was warned of the likely consequences of continuing to send messages. Although Miss Taylor was frank enough to admit to us that such was not a point included in the mitigation which she pressed upon the judge, it was plain for him to see. In my view the proportionate sentence for the second contempt was four months.

Sentence for the Third Contempt
27. The judge’s sentence of 12 months for the wife’s fraudulent, but apparently ham-fisted, attempt to procure the making of nominal payments out of the husband’s bank account to the RSPCA was out of all proportion to its seriousness. In my view the proportionate sentence for the third contempt was one month.

Sentence for the Fourth Contempt
28. The judge’s sentence of 12 months for the four letters sent by the wife to the husband, all bizarre but none particularly intimidating, was out of all proportion to their seriousness. In my view the proportionate sentence for the fourth contempt was one month.

Sentence for the Fifth Contempt
29. The false allegations made by the wife about the husband to the Benefits Agency represented a serious contempt but she was entitled to a modest credit for having admitted that she had made them. The judge’s sentence of six months was in my view manifestly excessive. In my view the proportionate sentence for the fifth contempt was two months.

Sentence for the Sixth Contempt
30. The judge’s sentence of six months for the lies and foul abuse shouted by the wife outside the husband’s home on 9 October 2008 was in my view manifestly excessive. In my view the proportionate sentence for the sixth contempt was two months.

Lord Justice Wall:
31. Wilson LJ’s judgment explains fully and clearly why on 17 June 2009 we allowed this appeal and reduced the contemnor’s sentence to one of six months in total. I cannot improve upon Wilson LJ’s reasoning or on his analysis of the authorities. I add a short judgment of my own in the hope that what I say will be of assistance to members of the circuit bench who have to sentence individuals at the conclusion of committal proceedings in family cases. I propose to concentrate on the imposition of custodial sentences, as it is to such a sentence that the current appeal relates.

32. I make it clear at once that, whilst I disagree with the length of the overall sentence imposed by the judge in the instant case, I am in no doubt that he was entirely right, overall,  to impose an immediate custodial term. The contempts in this case were serious, and plainly warranted immediate imprisonment.

33. I would also like to say that I have considerable sympathy for those engaged in this very difficult sentencing exercise.  Such sentences inevitably have to be handed down under severe time pressure. There is little scope for reserved judgments, or lengthy time for reflection. Frequently, the mitigation put forward is often inadequate or incomplete.  The judicial sentencing options are limited.  The result, I think, is that this court is unlikely to interfere unless it is of the view that the sentence passed is manifestly disproportionate or excessive. The judge is local, on the ground, and has the “feel” of the case. Any “tinkering” by this court is to be avoided.

34. That said, there are, in my judgment, three guiding principles which (apart from the vital need to ensure a fair process (see Hammerton v. Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133) govern committal proceedings where, as here, there are criminal proceedings in relation to the whole or part of the same subject matter.  They can all, I think, be identified as sub-divisions of the principle of proportionality.  The leading guidance remains that set out in this court  by Hale LJ (as she then was) in Hale v. Tanner [2000] 2 FLR 879 to which reference should always be made.

35. The first principle, of course, is that the court is not sentencing for the criminal equivalent of what the contemnor has done. As this court put it in H v O [2004] EWCA Civ 1691, paragraph 39; [2005] 2 FLR 329 at 338:

“Great care must be taken, if there are concurrent criminal or civil proceedings, to ensure that sentences in two or more courts do not punish twice for the same thing.”

36. As Hale LJ pointed out in Hale v Tanner [2000] 2 FLR 879 at 884 (para [29]). it needs  always to be remembered that the court is sentencing in order both to demonstrate its disapproval for  the fact that the contemnor has breached its order, and to ensure future compliance.

37. The second principle is that the court should know – indeed should have as much information as possible - about the parties and any concurrent criminal proceedings relating to the same or similar facts.

38. The third principle, once again identified by this court in both Lomas v Parle [2003] EWCA Civ 1804, [2004] 1 FLR 812  and H v O  (ibid) is that sentences for contempt of court should not be “manifestly discrepant” with sentences passed in criminal proceedings for comparable offences.

39. How do the principles I have identified apply in the instant case?  Firstly, of course, it by no means follows that because the magistrates’ court put the contemnor on probation for criminal damage, the county court is constrained not to pass a custodial sentence for contempt in relation to what were much wider, and more serious findings by the judge.

40. However, it does seem to me, with all respect to the judge, that a sentence of 18 months in relation to the incident on 7 April 2008 is both excessive in itself as well as “manifestly discrepant” with the sentence passed in the magistrates’ court. I remind myself that such a sentence would have been well beyond the powers of either justices or a district judge (magistrates’ courts).

41. Equally, it seems to me that similar considerations apply to a sentence of 21 months for the text messages even though, in this case, the harassment thereby demonstrated was not the subject of criminal proceedings.   The same can also be said of the sentence of 12 months for the creation of the bogus standing order in favour of the RSPCA, and the four offensive letters; and of that of six months for the report to the Benefits Agency and the abuse which from the subject of the sixth contempt.

42. It is, moreover, at this point that I find two unsatisfactory features of the case coming into prominence.  The first is that there was initially some concern that the contemnor did not have sufficient capacity to understand the proceedings and instruct solicitors. To that end, a psychiatric report was obtained, which concludes that she suffers from a bi-polar disorder, or, in layman’s language manic depression. It is quite unclear to me what weight, if any, the judge gave to this factor, since he does not mention it. It may well have been, therefore,  that the contemnor was more in need of treatment than punishment,  and that the excesses of her conduct  were due to a combination of her illness and  ill-feeling towards the applicant. On any view, in my judgment, her state of mental health was relevant to sentence.

43. The second matter is the applicant’s delay in taking the committal proceedings. Wilson LJ makes the point, which of course I accept, that the applicant may well have been reluctant to institute proceedings for contempt whilst the criminal proceedings were pending and unresolved. That does not, however, in my judgment explain the absence of any prior complaint through solicitors or otherwise about the contemnor’s course of conduct in harassing the applicant, not least by the sending of offensive text messages. It may well thus have been that an earlier warning from the court, or even a short period of earlier incarceration may have nipped the contemnor’s conduct in the bud. In any event, it needs to be said that the mere existence of criminal proceedings is not, of itself, sufficient to warrant any delay in the institution or prosecution of committal proceedings, absent some compelling reason such as the alleged contemnor already being in custody.

44. In summary, therefore,, the sentence passed by the judge in relation to the allegation of criminal damage is, in my judgment, both excessive and manifestly discrepant with that passed in the criminal proceedings, and the remaining sentences of 21 months, 12 months and 6 months are all both seriously excessive, and offend against the first principle which I have identified in paragraph 35 above.

45. Judges may well find it helpful to consider the maximum term overall which the contemnor should serve for the course of conduct taken as a whole, bearing in mind that their powers are limited to a total of two years imprisonment.  In my judgment, there can plainly be different views about the extent of that term in the instant case. However, a total of 21 months (the maximum being 24) is manifestly excessive on the facts. What sentence I would have imposed I do not know – and that is, in any event, not the test.  In my judgment, the unappealable bracket would be between 3 and 9 months: it follows that six months on the facts of this case is the right figure. Had the judge imposed such a term, his decision would have been unimpeachable.

46. Finally, I would like to re-iterate what Ward LJ at the end of the hearing told counsel and those instructing her to convey to the contemnor. The fact that we have reduced her sentence does not mean that we do not regard her behaviour as quite disgraceful. Should there be any repetition, and should she breach the order now in place;  (1) she will have learned nothing; and (2) she can expect to return to prison  for a term at least similar to and in all probability substantially in excess of that which we have imposed.

Lord Justice Ward:
47. I agree with both judgments.