England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORWICH COUNTY COURT
(His Honour Judge Holt)

		Royal Courts of Justice Strand London WC2 Monday, 17th December 2001

1. LORD JUSTICE WARD:I will ask Lady Justice Hale to deliver the first judgment.
2. LADY JUSTICE HALE: This is an appeal against the order of His Honour Judge Holt, sitting in the Norwich County Court, on 14th November 2001. He committed the appellant to prison for four months in respect of breaches of a Family Law Act order made on 29th October 2001. This was in the context of a relationship between the appellant and the respondent which began in 1999. They have a child together, Siobhan, who was born on 9th February 2000.
3. In her witness statement for the purpose of the order the respondent said that the violence began during her pregnancy; that they got back together again afterwards, but finally split up in May 2001. She said that the appellant smashed her front windows and the back door of her house. He also broke all her car windows and kicked in each panel of her car. He tried to get into the house, threatening to kill her and kick her head in. Despite this, she allowed him the use of a car, but he had an accident in that car and then drove to her house. The other driver followed him and he was arrested for the driving offence and also for the earlier damage to her house and car. For those offences he was sentenced at a magistrates' court to 15 weeks' imprisonment. He was released from that, we are told, on 14th September 2001.
4. Again in her witness statement for the purpose of obtaining the order the respondent said that shortly after that he came round and spat at her and threatened to kill her. She stopped contact with their daughter on 8th October 2001. He sent her threatening text messages. She hid her car, but on 15th October 2001 she found it damaged, with all the windows smashed and the tyres slashed. She reported this to the police and made an application for a non-molestation order that same day.
5. The order was made by District Judge Rogers on 29th October 2001. The appellant did not attend, but he did know about the proceedings. We have no knowledge of any findings of fact that were made on that occasion and so obviously cannot take it for granted that everything in the respondent's witness statement was established or found proved, but of course the fact of the previous conviction is accepted.
6. The district judge made an order with a power of arrest attached. The appellant was forbidden to use or threaten violence against the respondent or to instruct, encourage or in any way suggest that any other person should do so. The appellant was forbidden to intimidate, harass or pester the respondent or to instruct, encourage or in any way suggest that any other person should do so. The appellant was not to enter the house where the respondent was living or go within 100 metres of the property. The non-molestation order was to remain in force until 29th August 2002.
7. The appellant was arrested on 7th November 2001. He was remanded in custody and the hearing took place on 14th November. The allegations fell into four groups. The first concerned an incident on 1st November 2001, which the judge did not find proved. The second concerned an incident on 4th November 2001. On that occasion the appellant knocked on the respondent's door and, when she opened it, he was sitting in his car outside and said, "Ring me." The third concerned an incident on 6th November 2001, when the appellant rang the respondent's friend, Katie Richards, and said, "Tell McKnight I'm going to break every bone in her body and smash all her teeth in." The fourth concerned an incident the very next day, after the respondent had reported this to her solicitors. The account given in her witness statement is as follows:

"I was waiting for my friend while she gave my solicitors a witness statement. I had been in the car for a few minutes when I suddenly noticed the respondent running towards me. He was carrying a mobile telephone and was dressed in a blue denim jacket, blue denim jeans and trainers. I quickly locked my doors and was shaking and trying to turn off my immobiliser so that I could drive off. As I was trying to start the car the respondent shouted `I'm going to fucking kill you'. He then spat at the car. I reversed my car as I was parked directly behind another car. The respondent then stood in front of my car. However, I drove past him to get away from him and as I did this he kicked the driver's side front panel of my car, causing a dent. I drove round the corner and the respondent followed me, again shouting `I'm going to fucking kill you'. I parked the car round the corner in Bells Road directly outside the front door of [my solicitors] and sounded my horn loudly, hoping to attract someone's attention for assistance. The respondent then ran off down Bells Road and turned right down another road."

8. The judge heard evidence from the respondent, from her friend Katie Richards and from the appellant. He pointed out that the respondent was:

"... clearly very distressed. [The appellant] says it is an act. But - not only her demeanour but the way in which she answered the questions and gave the detail where I would expect in being tested - she satisfied me that she was telling the truth."

He was also quite sure that Katie Richards was telling the truth. That was why he found the allegations in respect of the three later incidents proved. He then went on immediately to impose a sentence of four months' imprisonment.

9. That sentence is challenged by the appellant on this appeal, principally upon the ground that the judge should not have proceeded straightaway to sentence the appellant, but should have first paused to allow Miss Davies (who appeared for him there, as she has done in this court) to present any mitigation for him. It is plain from the transcript, and Miss Davies concedes, that the judge was not invited to pause, nor was any protest made on behalf of the appellant after he had imposed his sentence. Nevertheless, I accept that any judge in this situation must pause and must invite observations. Sentencing in respect of contempt of court is often quite a difficult and sensitive matter, particularly in family cases, where emotions run high and often the parties have in some way to continue to have contact with one another for the sake of any child. The relevant considerations to be taken into account were set out in Hale v Tanner [2000] 2 FLR 879.
10. Having said that, however, what difference would it have made? Was there any mitigation in this particular case? It is, of course, the case that contempt of court proceedings are different in their purpose from ordinary criminal proceedings. They have a dual purpose: one is to punish the breach of the court's order which has taken place and the other is to secure compliance in the future. But the punishment itself has to take into account not only the gravity of what has taken place, but also the fact that it has been done not in breach of the general law but in blatant breach of a recently imposed order of the court.
11. Miss Davies points out that the appellant was not present in court to hear the usual warnings that are given when such orders are made. The fact of the matter is that he knew about those proceedings and was not there to hear those warnings. It is hardly for him to gain the benefit of his non-attendance at court. Miss Davies did suggest that there might be a risk of double jeopardy in this case if the police were to press charges in respect of any of the criminal offences which were involved. But we have absolutely no information to suggest that he is, or is likely to be, charged in respect of them.
12. A further point, which we understand is the point most strongly urged by the appellant himself, is the context of a dispute over contact with their daughter, Siobhan. There are two things to be said about that. The first is that, despite previous bad behaviour on his part, the respondent had not shown herself averse to letting him see their daughter. Any responsible mother has to think very carefully about the potentially adverse effects, especially upon a very young child like this, of exposure to violent behaviour on the part of a parent. It is scarcely surprising, therefore, that she considered that it was appropriate to end contact at the time she did. But the more important thing is that contact is principally for the benefit of the child. It is of course also for the benefit of the parent, because everybody has an interest in the matter. But any responsible parent who is thinking about his small daughter, and hoping to persuade that daughter's mother that he is a safe person to let into contact with his daughter, does not engage in the sort of behaviour which the judge found proved in this case: quite the reverse. He recognises the strength of his emotions and he realises that he has to control them and keep them to himself.
13. The other point Miss Davies makes is that there was no actual violence involved. Those are the words she uses in her grounds of appeal. This is not true, of course. There was actual violence. What there was not was direct violence perpetrated upon the respondent. It is, however, absolutely plain that what was done was such as to induce in the mind of any ordinary woman, sitting at the wheel of a car and trying to get it to start so that she could get away, very, very considerable fear indeed.
14. We have been told of the respondent's attitude while the appellant has been in prison. Indeed, we are told that she visited him in prison with Siobhan yesterday. The appellant seems to view this as some sort of change of heart on her part. It may well indicate, as Miss Soffa says on her behalf, that she is prepared to contemplate contact between the appellant and their daughter in carefully controlled circumstances such as a contact centre (or, indeed, a prison) where there will be supervision and their daughter can be safe. The appellant has produced a letter from her to him and it reads as follows:

"Dear Jason,

I have just received your letter. It has made me cry and feel very sad. Things would never have come to this if you hadn't been so aggressive and cruel. I have never loved anyone like I loved you. Love, hate, love, hate. You know deep down that I would run off with you as quick as a flash. This has been the worse time of my life, loving someone you can never be with. Ring me, Jason ..."

That is the letter of a woman who feels for the father of her child, but recognises that his behaviour is such that they cannot live together. It is entirely consistent with the case put forward on her behalf that his behaviour has been aggressive and cruel towards her and that she is afraid of him, despite her love for him.

15. In those circumstances I see no mitigation whatsoever in this case and, whatever my own view of the appropriate sentence to impose, I would not be prepared to interfere in a general way with the sentence imposed by the judge, who had had the benefit of seeing the parties and hearing their evidence about this case.
16. It has to be borne in mind that the appellant had denied all of this behaviour. It was not a situation in which he was accepting that he had behaved in that way and saying, "I am sorry, I realise that I let my feelings get the better of me and I will not do it again." Such an assurance might have been treated with some scepticism, in view of the behaviour, but nevertheless it would have made things somewhat better. There is no such suggestion.
17. The one point that does cause some difficulty is that the appellant had spent a week in custody on remand under the Family Law Act 1996. Under section 67 of the Criminal Justice Act 1967 time spent on remand is normally automatically deducted from a sentence of imprisonment which is subsequently imposed. However, under section 104 of that Act the definition of "sentence of imprisonment" does not include a committal, among other things, for failure to do or abstain from doing anything required to be done or left undone. We have not had the benefit of full argument on this issue. We are aware that those provisions have been replaced by subsequent legislation, although, as far as we understand, that subsequent legislation is not in force; nor do we know whether it would make any difference to the position. However, it is clear that those currently holding the appellant in custody are not proposing to reduce the term of imprisonment by the amount of that period on remand. As the term is automatically reduced by one half, it is generally appropriate, when imposing sentences for contempt of court, to take into account any period spent on remand which will not automatically be deducted from the term served and, of course, to do so in double terms to take account of the automatic reduction. For that reason, and for that reason alone, therefore, as it is clear that the judge did not consider this point, I would reduce the sentence imposed by 14 days.

LORD JUSTICE CHADWICK: I agree.

LORD JUSTICE WARD: I also agree.

Order: appeal allowed to the extent that the term of four months' imprisonment is reduced by 14 days; public funded costs assessment for both parties.