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Head v Orrow [2004] EWCA Civ 1691

Case No: B1 2004/1695

Neutral Citation Number: [2004] EWCA Civ 1691

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE FAMILY DIVISION

HIS HONOUR JUDGE SLEEMAN

FDO3PO1837

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday, 16 December 2004

Before :

THE RIGHT HONOURABLE LORD JUSTICE MAY

THE RIGHT HONOURABLE LORD JUSTICE DYSON

and

THE RIGHT HONOURABLE LORD JUSTICE WALL

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Between :

DAMON HEAD Appellant

- and -

CAROL ORROW Respondent

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(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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H CLEAVER (instructed by Johns & Saggar) for the APPELLANT

R CHAPMAN (instructed by Imran Khan & Partners) for the RESPONDENT

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Judgment

As Approved by the Court

Crown Copyright ©

Lord Justice May:

Introduction

1. This is the judgment of the court.

2. On 21st July 2004, the appellant was found to be in contempt of court for three breaches of a non-molestation order made on 11th May 2004 by HH Judge Pearlman under section 42 of the Family Law Act 1996. HH Judge Sleeman sentenced him to 12 months immediate imprisonment. The appellant had contested the committal proceedings, giving evidence which included that the most serious of the three alleged incidents had never taken place. The judge did not believe him nor his partner who gave evidence to support his alibi defence.

3. The appellant appealed against his sentence essentially on the ground that, in the language of criminal appeals, it was manifestly excessive. It is not suggested that an immediate custodial sentence was inappropriate. At the conclusion of the oral hearing, we allowed the appeal, reducing the sentence from 12 months to 9 months immediate imprisonment. We reserved our reasons for this decision, which we now give.

Facts

4. The appellant is the father of a child, A, who was 10 in September 2004. A lives with his maternal grandmother, Mrs O, and her adult son, LC. Both the appellant and A's mother abused heroin. This appears to be the principal reason why A is living with his grandmother and uncle.

5. There were proceedings under the Children Act 1989 about A between Mrs O, LC and the appellant. These were resolved on 11th May 2004 before Judge Pearlman. The appellant withdrew his application for contact, and a joint residence order was made in relation to A in favour of Mrs O and LC.

6. At the same hearing, Judge Pearlman made the non-molestation order of which the appellant was subsequently found to be in breach. Mrs O and LC had alleged that the appellant and others had threatened and assaulted LC on 11th April 2004, when it had been agreed that the appellant could go to Mrs O's house to deliver Easter eggs for A. LC described being punched in the face by the appellant, falling to the ground and being punched and kicked by the appellant and others whilst lying on the ground. Mrs O stated that she saw the appellant and two other men kicking LC repeatedly and that the appellant at some stage had his foot on LC's head. Mrs O also alleged that she had been punched in the face by the appellant on this occasion. Both she and LC said that the whole incident had been witnessed by A. LC attended hospital following this assault.

7. Although this assault was reported to the police, to whom both Mrs O and LC made statements, no steps appear to have been taken to prosecute the appellant, nor was it suggested to us that this remained a real possibility.

8. The appellant was represented by counsel at the hearing on 11th May 2004. He did not resist the continuation of an earlier temporary injunction made against him without notice by District Judge Bowman on 16th April 2004. But the appellant made no admissions as to the truth of the allegations on which the injunction was granted. No evidence was called at the hearing and Judge Pearlman made no findings of fact against him.

9. The order of 11th May 2004 designed to protect Mrs O was in standard terms. It was to run until 13th November 2004. It forbade the appellant from intimidating, harassing or pestering Mrs O and from using or threatening violence against her. It also forbade him from going within 50m of her address. A power of arrest was attached to this order. Since the order had been made without judicial findings of fact, Judge Sleeman did not in the present committal proceedings take the events leading up to the injunction into account when dealing with the appellant's subsequent breaches of it. He was, in our view, correct in this.

10. On 7th July 2004 the appellant was arrested under the power of arrest attached to the order of 11th May 2004. The incident for which he was arrested had occurred on 21st June 2004. He was remanded on bail until the hearing of the contempt proceedings on 21st July 2004.

The contempt proceedings

11. There were four alleged breaches of the non-molestation order.

12. First, it was said that on 9th June 2004 the appellant had encouraged one of his associates to intimidate Mrs O and threaten her. The judge was not sure on the evidence that this allegation was established and he dismissed it.

13. Second, it was said that, on 21st June 2004, the appellant intimidated Mrs O while she was on her way to collect her grandson from school by deliberately blocking her path. He subjected her to verbal abuse and threats of violence. He then physically assaulted her by grasping her throat and forcing her down onto the bonnet of a parked vehicle. It was for this alleged incident that the appellant had been arrested.

14. Third, it was said that, on the morning of 26th June 2004, the appellant walked past Mrs O's home.

15. Fourth, it was said that, on 6th July 2004, the appellant intimidated and harassed Mrs O while she was on her way to pick up A and his friend by subjecting her to verbal abuse and threatening behaviour.

16. At the hearing of the committal proceedings, the judge heard the evidence of Mrs O, and of an independent witness, Mr WB, who had witnessed the fourth incident. The appellant himself gave evidence, as did his girlfriend. The appellant's case as to the second alleged breach was that this had been invented by Mrs O. He had been at home all day working in his house. His girlfriend supported this alibi. He denied the third and fourth alleged breaches. He accepted that on the fourth occasion he had by chance seen Mrs O in the street, but he said that he had done nothing untoward. He accused Mrs O and LC of making false allegations against him because of the state of health of A's mother. He described himself as beginning to recover from his own drug addiction, and argued that Mrs O resented this. He also said that Mrs O was making false allegations of harassment against him as a means of obtaining rehousing by the local authority.

17. The judge correctly directed himself to apply the criminal standard of proof. He gave his impression of the witnesses. He was impressed with Mrs O and Mr WB, whose evidence he accepted in its entirety. He found the appellant to be calm, but clearly capable of being highly emotional and of shouting aggressively. He was not impressed with the appellant's girlfriend, who he described as trying too hard to give the appellant an alibi. He was unable to rely on her as a witness of truth.

18. The judge rejected the appellant's case that Mrs O had simply concocted her account of the incident on the 21st June. He found that suggestion to be incredible. He accepted Mrs O's evidence that the appellant had grabbed her by the throat and pushed her onto the bonnet of a parked car. He accepted her evidence that the appellant had said that he would throw her into the road into the path of cars. The judge had no hesitation in finding the appellant guilty of breaching the court order on 21st June.

19. As to the third alleged breach, the judge had no doubt but that Mrs O did see the appellant walking past her home within 50m of it. But he did not regard that breach as anything like as serious as that on 21st June.

20. As to the fourth alleged breach, the appellant had accepted that he met Mrs O in the street, but said that she panicked. He denied doing anything to intimidate, threaten or pester her. Her evidence was that they were simply walking towards each other. The appellant said that he wanted to see A and was angry. She asked him to leave her alone. She went round a car to cross over the road. He went round to the other side of the car in an attempt to get face to face with her. The judge accepted that the appellant did not come any closer to her than about 6 feet.

21. Mrs O's evidence was supported by that of Mr WB. He was in the front room of his house and heard shouting in the road outside, raised voices and a woman shouting or screaming as if in trouble. He then heard an alarm going. When he went outside, Mrs O was terrified and he took her into his house. The judge accepted Mr WB's account. He found that the appellant was emotional and agitated and clearly put out his arms. Mrs O accepted that she may have overreacted, but said that she was frightened. The judge found that this was a reasonable reaction in the light of what had happened on 21st June. The judge found that the appellant was seeking to remonstrate with Mrs O and to persuade her to let him see A. The appellant knew that by his conduct Mrs O would feel threatened and intimidated.

22. In summary, therefore, the judge found the second, third and fourth alleged breaches proved. He was quite sure that Mrs O had been telling the truth and that the appellant and his girlfriend had not.

23. In sentencing the appellant, the judge regarded the incident on 21st June as an extremely serious assault on Mrs O, who was acting as the mother of the appellant's child. It took place in public. The appellant had blocked Mrs O's path and pointed at her aggressively, shouting "Now you know how it feels to have something happen to your son". This the judge took to be a reference to the incident on 11th April 2004 involving LC. The appellant had followed Mrs O into the road, grabbed her by the throat and pushed her backwards onto the bonnet of a parked car, ranting that she was preventing him from seeing A. The judge accepted that the appellant did not cause any lasting damage. But Mrs O had red marks under her throat and was clearly terrified. It was a flagrant breach of the court order, for which the appellant had shown no regard and no remorse. For this breach, the judge sentenced the appellant to 12 months immediate imprisonment. The judge made no order for the breach on 26th June. He regarded the breach on 6th July as a serious matter in the light of what had happened on 21st June. The appellant had frightened and intimidated Mrs O. The sentence for this breach was 6 months imprisonment concurrent with the sentence of 12 months for the second breach. The total sentence was therefore 12 months imprisonment.

Submissions

24. Mr Henry Cleaver, for the appellant, submitted that, in the light of decided cases, in particular Hale v Tanner [2000] 2 FLR 879, the sentence of 12 months imprisonment was excessive. The judge had given insufficient weight to the fact that this was a first breach; that the meetings in the street on 21st June and 6th July had been by chance; that the incidents took place in the potentially mitigating context of the appellant wishing to have contact with A; that Mrs O's injuries received on 21st June were comparatively slight; and that Mrs O had accepted that she may have overreacted on 6th July and that the appellant had never been closer to her than about 5 feet. The appellant was helping his girlfriend with the care of their infant son, which was especially necessary as his girlfriend was very hard of hearing and did not always hear the baby cry. The baby had recently been in hospital and was due to see a specialist in a month's time. Mr Cleaver accepted that the red marks to Mrs O's throat resulting from the appellant's attack on her on 21st June would probably be sufficient to sustain a criminal charge of assault occasioning actual bodily harm, for which the maximum statutory sentence would be 5 years imprisonment. He also accepted that contemporary views about domestic violence and harassment might sustain rather longer sentences in contempt proceedings than in the past. But he maintained that a total sentence of 12 months in the present case was too long.

25. Mr Rupert Chapman, for Mrs O, told us that she is aged 59. He accepted that the incident on 6th July arose from a chance encounter. He submitted that the conduct which constituted the breach of the order on 21st June was both serious and in public. It constituted violent intimidation to try to make Mrs O allow contact with A. She was put in fear and injured, although not lastingly. The appellant had contested the proceedings in which he was found to have lied. He made no admission or apology and showed no sign of remorse or regret. There was no mitigation. The judge had given adequate weight to all the relevant circumstances. His sentence was appropriate.

Authorities

26. Hale v Tanner was a case of harassment, without physical violence. The appellant, a young woman who had lived with the applicant for two years, bombarded him and his new girlfriend with telephone calls. The appellant was arrested and charged under the Protection from Harassment Act 1997. Magistrates made a restraining order under section 5 of the 1997 Act prohibiting the appellant from contacting either the applicant or his girlfriend. The applicant obtained a non-molestation order under the 1996 Act in the county court, which the appellant breached. The circuit judge sentenced her to 6 months imprisonment suspended for one year from the date of the non-molestation order. This court allowed her appeal to the extent of substituting a suspended sentence of 28 days.

27. Hale LJ gave the leading judgment in this court. She gave guidance to help those sentencing for breach of a non-molestation order under section 42 of the 1996 Act. She introduced her points of guidance saying at paragraph 24:

"Furthermore I would not wish to suggest that there should be any general principle that the statutory provisions related to sentencing in ordinary criminal cases should be applied to sentencing for contempt. The circumstances surrounding contempt cases are much more various and the objectives underlying the court's actions are also much more various."

28. Hale LJ's points of guidance included:

(a) an application to commit for contempt is the only enforcement procedure available for breach of a non-molestation order under section 42.

(b) the full range of criminal sentencing options is not available.

(c) custody is not automatic.

(d) there is a power to fine, and a power to suspend a custodial sentence, which should nevertheless not affect the length of the sentence, that is, you do not make the sentence longer because you are going to suspend it.

(e) the length of the sentence depends on the court's objectives which will always include marking the court's disapproval of the disobedience of its order and securing compliance with it in the future.

(f) the length of the committal has to bear some relationship to the maximum statutory sentence of 2 years.

(g) the court has to bear in mind the context, which may be aggravating or mitigating.

Hale LJ expressed her ninth point as follows:

"… 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."

Hale LJ also said that it is rare to find reported cases of sentences of 6 months imprisonment in the context of much more serious breaches than took place in the case then before the court, which mainly concerned serious, persistent and threatening telephone calls.

29. The decision of this court in Lomas v Parle [2003] EWCA Civ 1804 was on an appeal by an applicant in contempt proceedings for breach of injunctions granted under section 42 of the 1996 Act against what was argued were unduly lenient sentences. There were concurrent proceedings in two other courts. In the Crown Court the respondent husband pleaded guilty to two charges of common assault, for which he was sentenced concurrently to a 12 months' community rehabilitation order with a direction to attend a domestic violence programme. For a breach of bail, he received 12 months conditional discharge.

30. In the magistrates' court, there were proceedings resulting from the husband's behaviour while on bail from the Crown Court. He was charged under section 2 of the 1997 Act. He received a 2 year conditional discharge. A restraining order was also made under section 5 of the 1997 Act without limit of time. He was subsequently charged with breaching the restraining order.

31. The appeal before this court was from an order in the county court, whereby the husband received two concurrent sentences of 4 months' imprisonment for contempt in twice breaching a non-molestation order under section 42 of the 1996 Act. This court increased these sentences to a total of 8 months, indicating that 10 months would have been appropriate but for the question of double jeopardy. The breaches were a culmination of what the first instance judge described as a campaign of harassment from 2002 to June 2003. Thorpe LJ, giving the judgment of this court, described the case as one with an appalling history of intimidation and abuse. At every turn the husband had flouted the orders of the court and seized any leniency as little more than an opportunity to resume his campaign against the wife.

32. This court gave guidance supplemental to that of Hale LJ in Hale v Tanner. Thorpe LJ considered the relationship and differences between the contempt jurisdiction for breaches of injunctions under section 42 of the 1996 Act and the jurisdiction under the 1997 Act. He said at paragraph 47:

"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. 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."

33. Thorpe LJ then said at paragraph 50:

"Within the constraints of the 2 year limit on sentences for harassment in breach of protective injunctions granted under section 42 of the Family Law Act and the different scale which this necessarily involves, judges should as far as possible ensure that sentences passed under section 42 are not manifestly discrepant with sentences for harassment charged under sections 3, 4 or 5 of the Protection from Harassment Act 1997. The experience of counsel before us is that the level of sentencing under the Protection from Harassment Act is very significantly higher than the present level of sentencing for comparable incidents leading to committal for breach of Family Law Act injunctions. Of course domestic violence may also be the subject of other criminal charges varying from common assault to murder. The more serious the offences, the less scope there will be, in view of the 2 year limit, to maintain any relationship between family and criminal court sentences – if indeed such cases are brought before the family court at all."

34. In concluding that the level of sentencing for offences under the Protection from Harassment Act has tended to be higher than sentences for breach of a non-molestation order under section 42 of the Family Law Act, Thorpe LJ referred to the decision of the Court of Appeal Criminal Division in R v Liddle and Hayes (24th May 1999). By section 2 of the 1997 Act, a person who pursues a conduct which amounts to harassment is liable on summary conviction to imprisonment for 6 months and a fine or both. Section 4 provides for imprisonment for up to 5 years on indictment for persons whose course of conduct causes another to fear on at least two occasions that violence will be used against him or her. Having set out a summary of considerations for sentencers to bear in mind, Curtis J, giving the judgment of the court, said that a range of sentences was obviously available. For a first offence, a short sharp sentence might be appropriate, although much would depend on the factors of repetition and breach of court orders and the nature of the misconduct. The facts of each case vary and the facts of a particular case might require a longer sentence. For a second offence, longer sentences of about 15 months on a plea of guilty would be an appropriate starting point. From then on, it is possible to see from the maximum of 5 years fixed by the statute where each case fits into the statutory framework.

35. As in Hale v Tanner, we have not undertaken the sort of full forensic exercise which would normally be appropriate to enable this court to give general guidance on the level of sentencing in contempt proceedings for breach of injunctions under section 42 of the 1996 Act. In addition to authorities which we have already mentioned, we were referred to Re H (A Minor) (Injunction: Breach) [1986] 1 FLR 558; Jordan v Jordan [1993] 1 FLR 169; and Wilson v Webster [1998] 1 FLR 1097. We have also looked at, but not received submissions about, a number of other reported cases in the Family Division involving harassment and violence. These are Szczepanski v Szczepanski [1985] FLR 468; George v George [1986] 2 FLR 347; Mesham v Clarke [1989] 1 FLR 370; Goff v Goff [1989] 1 FLR 436; Juby v Miller [1991] 1 FLR 133; N. v N. [1992] 1 FLR 370; Jones v Jones [1993] 2 FCR 82; Aubrey v Damallie [1994] 1 FCR 131; McCann v Wright [1995] 1 WLR 1556; Re O (Contempt: Committal) [1995] 2 FLR 767; and Neil v Ryan [1998] 2 FLR 1068.

36. These cases in general bear out Hale LJ's observation in Hale v Tanner that it is rare to find sentences of 6 months' imprisonment in the context of much more serious breaches than those which took place in that case.

Discussion and reasons for decision

37. In our judgment, the level of sentencing in cases which preceded the Protection from Harassment Act 1997 (and perhaps in some later cases) does not fully reflect contemporary requirements and opinion. We think that parliament and society generally now regard domestic and other violence associated with harassment and molestation as demanding rather more condign deterrent punishment than formerly. In a somewhat different context, contemporary judicial opinion may be seen in the decision of this court in four appeals from decisions refusing contact to fathers in cases where there had been serious domestic violence – Re L (a child) (Contact: Domestic Violence) [2001] Fam 260, in which the court accepted the advice of two psychiatrists, instructed by the Official Solicitor to report to the court on the serious effect of domestic violence on its victims, both adults and children.

38. Furthermore, we do not regard the fact that the breaches in the instant case took place in the context of the appellant wishing to have contact with A as being in any way a mitigating factor. If anything, it is the reverse. The judge plainly thought so. In his sentencing remarks he said: "She is now acting as the mother of your child, and that is how you threat her". We agree with that criticism. The appellant had withdrawn his application for contact. In any event, separated parents have a particular responsibility to behave properly over all questions arising out of contact with their children, and it was fortunate that A was not present at any of the three incidents for which the appellant was sentenced.

39. In our judgment, sentences in committal proceedings for breaches of injunctions under section 42 of the 1996 Act should, so far as possible, reflect this range of opinion. The qualifications to this to which Thorpe LJ referred in Lomas v Parle of course remain. In particular, there must be proportionate regard to the statutory maximum sentence in section 14 of the Contempt of Court Act 1981. 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. Indeed section 3(7) and 3(8) of the 1997 Act specifically exclude duplicated punishment for both contempt of court and an offence under section 3(6) of the Act for breach of an injunction granted under section 3(3)(a) in civil proceedings. But, as Thorpe LJ said, so far as possible sentences passed under section 42 should not be manifestly discrepant with sentences for harassment charged under the 1997 Act. We would add that, in cases of actual or threatened violence, of which the present appeal is an example, so far as is consistent with avoiding duplicated punishment, sentences for contempt of orders made under section 42 should not be manifestly discrepant with sentences passed in the Crown Court for comparable offences, for instance under the Offences against the Person Act 1861. The court will soon also need to have regard to the Domestic Violence, Crime and Victims Act 2004, when it comes into force.

40. In the present appeal, there were three breaches, one of which (that on 26th June) was not by itself serious. The breach on 21st June was serious. There was violence in public against a 59 year old woman which may well have sustained a charge of assault occasioning actual bodily harm. Mrs O was no doubt terrified. This was in breach of the order made no more than 6 weeks earlier by consent. There was aggravation because Mrs O was the person caring for A, who was in a sense the object of the appellant's conduct. The subsequent breaches, less serious in themselves, nevertheless constituted continued contempt and emphasised the need to protect Mrs O. The appellant contested the contempt proceedings, telling lies in the process. He made no admission and showed no remorse. There was little or no mitigation. Importantly also, there were no concurrent proceedings nor any likelihood of such proceedings. In addition, serious though the appellant's violence and general disobedient conduct were, this was not conduct for which any sentence in a criminal court would be well beyond or even approaching the statutory maximum sentence for contempt of court.

41. In these circumstances, we consider that the judge was entitled and obliged to pass a substantial sentence of immediate custody. We were at first inclined to think that his total sentence of 12 months immediate custody was within a sustainable compass. In the end, we felt obliged to reduce it somewhat to a total of 9 months because:

(1) even with the added need to mark the court's disapproval of the appellant's disobedience to the court's order, we were not persuaded that a Crown Court sentence of 12 months' immediate custody could be fully sustained for a first offence; and

(2) such comparison as might be made with the admittedly different circumstances in Lomas v Parle suggested a somewhat lesser sentence than the putative 10 months in that case.

42. For these reasons we allowed the appeal reducing the sentence for the first breach on 21st June from 12 months to 9 months. Although it might be contended that the concurrent 6 months sentence for the fourth breach was by itself somewhat excessive, there is no practical advantage to the appellant in reducing it, and we do not do so. In the result, the total sentence is 9 months.

43. As will be apparent from this judgment, 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.