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Pluck v Pluck [2007] EWCA Civ 1250

Appeal against sentence imposed under Part IV of the Family Law Act 1996. Appeal allowed.

The appellant, who had been regarded as not competent to litigate, was the subject of an order prohibiting him from entering his former partner's home or the estate where she lived. He stated that he would ignore the orders and was sentenced to 14 days suspended and then 9 months for two successive breaches of the orders. However the sentencing judge had not been informed of the appellant's vulnerabilities, nor that the partner had moved away from the estate, and so Thorpe LJ concluded that the sentence was plainly excessive and the appellant released.


Case No: B4/2007/2249
Neutral Citation Number: [2007] EWCA Civ 1250
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 24th October 2007


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PLUCK (Appellant)

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PLUCK (Respondent)

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(DAR Transcript of
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Miss K Bundell (instructed by HKB Wiltshires) appeared on behalf of the Appellant.


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Judgment (As Approved by the Court)
Crown Copyright©

Lord Justice Thorpe:
1. Miss Bundell appears this morning to advocate an appeal on behalf of Aaron Pluck who was sentenced to nine months' imprisonment by HHJ Richards for breach of orders made under the Family Law Act 1996 to restrain him from visiting the house or the estate where the mother of his child lives. She has filed a comprehensive skeleton argument and this morning has assisted us with a brief summary of the essential background. This young couple are in their early 20s and their only child was born on 31 March 2006. This is a Norfolk case, proceeding in the Norwich County Court, and the local authority initiated care proceedings on 20 July 2006. Prohibited steps orders were made within those proceedings in April 2007, restraining the appellant from entering Gorlestone, or Yarmouth, save for pre arranged contact. Subsequently, mother initiated proceedings under the Family Law Act, and an order was made on 25 May 2007 preventing him from entering (or attempting to enter) mother's home at No 7 Exeter Road, or the Magdalen Housing Estate where Exeter Road is situated. Significantly, on 23 July 2007 the Official Solicitor consented to act in the family law proceedings on behalf of the appellant who, at that time, was not regarded as competent to litigate without that representation.

2. Two days later occurred the first breach. He was at her property in the early hours, shouting, and was shortly thereafter arrested on the premises and brought before HHJ Darroch, who sentenced him to fourteen days suspended. Perhaps because of his vulnerabilities, the appellant's response was that he had no intention of abiding by any order made and effectively invited imprisonment. He achieved that by being found on the premises later that day and, when arrested, he said, "I want to go to prison." That led to him appearing before HHJ Darroch again, on 26 July (i.e. the following day) when the judge really had no alternative but to activate the suspended sentence and to double it to provide for twenty-eight days' custodial. Shortly after his release, on 11 September, he was observed by a police officer leaving No 5 Exeter Road which was, of course, a breach of the injunction. Accordingly, he was arrested and brought before the court on the following day. Rather bizarrely, solicitors acting for the appellant (presumably delegated by the Official Solicitor) were contacted and notified that he would be before the judge at 12.30pm. He sought no mitigation to be put before the court and admitted his breach. The solicitor with ordinary conduct was not available and another solicitor attended. He did not notify the judge of the appellant's disabilities and vulnerabilities and of the fact that he was acting on the instructions of the Official Solicitor. Accordingly, HHJ Richards (not surprisingly) treated this as a case in which there had been several deliberate and contumacious breaches, and in a short judgment he explained that the tolerance and patience of the court had been exhausted. This was a man who would not comply. The court's sympathy had evaporated, and he accordingly imposed the sentence that I have already recorded.

3. I have already remarked on the fact that HHJ Richards was handicapped by a dearth of information about the man he was sentencing; but what he did not also know was that the mother, at the material date, was no longer living at No 7 Exeter Road. She was not living anywhere on the Magdalen Estate, having either been re-housed by the local authority, or having found her way to refuge accommodation. Miss Bundell tells us that this information only emerged relatively recently, during the public law proceedings and, plainly, it renders the current order unsustainable. There is no reason, given mother's withdrawal -- on the face of it, no reason -- why he should be restrained from entering Gorlestone or Yarmouth. Fortunately, he does not know her current whereabouts, and that is probably her best protection. Given the much greater information which is available to the court than was available to HHJ Richards, I am of the view that the sentence imposed was plainly excessive and, giving weight to the additional information now before the court, I would substitute such sentence as will allow the appellant's immediate release from custody.

Lord Justice Wall
4. I agree.

Judge Holman:
5. I also agree.

Order: Appeal allowed