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M (Children) [2005] EWCA Civ 615

The court should not impose a custodial sentence simply because a defendant does not have the means to pay a fine.

Re M (Children) [2005] EWCA Civ 615

Court of Appeal: Ward and Clarke LJJ (11 April 2005)

The court should not impose a custodial sentence simply because a defendant does not have the means to pay a fine.

This was an appeal against a committal order made in May 2004, by which the father was sentenced to seven days' imprisonment, suspended for six months on terms that he did not breach any order in the proceedings or any part of any order to which a penal notice had been attached.

The committal application by the mother arose out of protracted care proceedings in relation to the children of the family; in commencing committal proceedings, the mother maintained that there were four breaches of an order made by the judge concerning a requirement for the father to collect one of the children straight from school on a specified day and return her forthwith to the mother's house.

At the committal hearing the judge found that three of the breaches were not proved to the requisite criminal standard of proof, but that one of the breaches had been established to his satisfaction. As to the penalty to be imposed, the judge considered that a fine was not appropriate, because the father was known to be of very limited means and there was already a substantial costs order against him; 'no order' was also not appropriate in view of the father's contemptuous attitude towards the court's orders; and so a suspended custodial sentence would be imposed.

In addition, at the sentencing stage, the judge asked counsel for the mother's views on the appropriate penalty, during which discussion he indicated that he was not minded to impose a custodial sentence.

Held, allowing the appeal, that the judge had erred in his approach: first, the court cannot impose a suspended custodial sentence unless satisfied that a custodial sentence would be justified; and, secondly, imprisonment is not the appropriate course of action simply because the defendant does not have the means to pay a fine.

Further, it was unusual for the judge to invite comment from the applicant for a committal sentence as to the appropriate penalty: that was a matter between the court and the contemnor. It was also especially troubling in this case, since the judge had reaffirmed that a sentence of imprisonment was not appropriate.

Accordingly, the finding of contempt would be allowed to stand, but the suspended committal sentence would be discharged and 'no order' substituted.

Read the full text of the judgment here