England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ST. HELENS COUNTY COURT
(His Honour Judge Duncan)

		Royal Courts of Justice Strand London WC2 Wednesday, 12th December 2001

1. LORD JUSTICE WARD: This is an appeal by Gary Robinson against the order made on 12th November 2001 by His Honour Judge Duncan sitting in the Liverpool County Court, when he committed this husband to prison for eight months concurrent for two breaches of an injunction made on 1st November 2001.
2. The history can be quite shortly stated. This couple began to live together some time in 1987. They have three children. Laura is 12 and Katie is 9. They then married in May 1997 and their third child Lewis was born in September 1999. The marriage ran into difficulties. There are suggestions in the evidence that the husband has been prone to violence during the course of the marriage. There is a serious allegation made against him in August 2001 when the wife reported to the police that she had been raped, indecently assaulted and unlawfully imprisoned. That led to the husband's arrest. He was held in custody. Some few weeks later, however, the wife made a statement to the police in which she indicated that she no longer wished that prosecution to go forward. It seems that he was then released on bail, having been in custody for about two weeks. The dates are not precisely clear. The conditions of bail were that he should not approach the wife, nor contact her. On 10th September the wife made a further statement to the police, in which she stated that she wished the bail conditions to be dropped as she desired a reconciliation, adding that she had not spoken to her husband about that and would not be sure of his reaction. Her wish was to put it all behind her and start afresh for the sake of the family. She added two things which may be of importance. The first is that she withdrew not a word of her earlier complaint, and secondly that no one had forced her to make that statement. The result, as we understand it, is that the proceedings have been dropped. There was a reconciliation, albeit of brief duration. The parties went off together with the children on holiday over half term. It was unsuccessful. On return home the mother left with the children and sought safety in a women's refuge. She returned a few days later but it was clearly an unhappy time for her. She made more complaints about the husband's unpleasant behaviour. Eventually, through help from the Social Services Department, the husband was asked to leave the matrimonial home. It is, I suppose, a mark, the only one so far, of credit to him that he did go when he was asked to go. Thus, their cohabitation came to an end on 30th October. The wife applied immediately for injunctive relief, and on an application made without notice to the husband, District Bennett on 1st November made orders that the husband should not return to the matrimonial home or enter it or attempt to enter it. He also ordered that he be forbidden to use or threaten violence against her or intimidate, harass or pester her. That order, backed with a penal notice which warned him that if he did not obey the instructions contained in the order he would be guilty of contempt and might be sent to prison, was served on him some time shortly thereafter, precisely when is not clear on the papers. That order had been backed with a power of arrest. Unhappily, the police were called upon to exercise it on the evening, late on 7th November 2001. That led to his arrest, to his appearance before the court and after some adjournment, to his appearing before Judge Duncan on 12th November when he faced his committal.
3. He gave evidence, as did the wife. The judge had no difficulty whatever in preferring the evidence of the wife in all aspects of it, and so the story that we can piece together is this. It seems that there was an arrangement for the husband to come to the house with the wife's agreement in order to return the family dog, some dog food and a child's car seat. He arrived at the former matrimonial home and instead of simply leaving what he had come to deliver, he persuaded one of the children to allow him to enter. Over the course of five hours he subjected the wife to a high degree of verbal aggression, pestering her and involving the children in some of the details of the breakdown of the marriage that were better left unsaid. More importantly, as the judge found, he grabbed the wife at one point, threatened to slit her throat and put his hand over her mouth. It was undoubtedly a terrifying ordeal for her and for the children. It came to an end when one of the children was able to get away from the husband and was able to phone the grandmother who wisely telephoned the police, and on their arrival at about 2 o'clock in the morning he was duly arrested.
4. The judge, having found those facts which had been disputed by the husband, a fact not without significance because it denied him the benefit of mitigation which would have been available had he been truly contrite and frank, the judge characterised this as "a bad case". He dealt with the sentencing by having regard to the fact that the husband was in employment, and he said:

"... but if a man is working he must not be able to buy himself out of a situation merely because of employment. Of course it is an important feature. A man who is a working man, shows he is capable of hard work, capable of supporting himself and his family and it is an important feature in his favour. But it is not, and never must be used, particularly in the face of violence, to be a crucial factor."

5. I would agree with that approach. It is always important, and it is perhaps more important when dealing with a committal in a family case than it might be when sentencing a man to imprisonment for a criminal offence. But it is not a passport to freedom. The judge went on:

"I am quite satisfied here that there have been warning shots. There was a warning shot from whatever point of view, if a man spends a few days in custody after an allegation of rape, then there are efforts to put things right again for one reason or another afterwards, but that is a warning shot. There is a warning shot with social services involvement and asking him to leave on the Tuesday that he did leave, on 25th October. There was a further warning shot because he knew of this injunction."

6. I am less convinced by that part of the judge's reasoning. The object of sentencing for contempt is primarily, as I shall indicate in a moment, for the breach of the order, and although the history cannot be ignored, it is upon the breach of the order that the court should be concentrating. The judge went on to characterise this as:

"a bad case for a man who, I am quite satisfied from having listened to and heard his wife's evidence, is capable of violence and bullying his way to get his way. I am afraid he needs to understand that the society we live in now will do its utmost to protect women from violence and abuse. The society that we live in now recognises also that domestic violence harms children, not because they are physically hurt but because they are mentally scarred and emotionally upset. It is not something to be treated lightly. He has used his weight and his maleness (if I can call it that) to abuse his wife in this way on this occasion."

7. I would endorse every word of the judge's criticism of violent conduct by a husband towards his wife, affecting as it does the children of the family. It is important that that be marked and recognized in this court. The judge went on to say:
8. It is a regrettable situation and it is one, in my view, that could have been avoided but he has shown himself unable to recognise that once a relationship is over it has to be approached in an entirely different way."
9. He went on immediately to impose for breach of the order for returning and tricking his way into the matrimonial home a sentence of eight months' imprisonment. For the threat of violence which followed, observing that it was in the context of an unpleasant, harassing incident, but it is the threat of violence that was serious, and for some actual violence, in the sense of putting his hand over her mouth, he passed a concurrent sentence of eight months.
10. I am indebted to counsel for their cogent submissions. Mr. Edwards on the husband's behalf draws our attention to a recent decision of this court in Hale v Tanner [2000] 2 FLR 879, where Hale LJ attempted to give some overview of the sentencing for contempt in family cases. She had observed, and it is undoubtedly true, that it is difficult to give guidance as to the length of sentences that should be contemplated for particular types of breach, each case being as different from the other. She drew attention, correctly, and it may be necessary to say it again, that the approach in sentencing for committal, especially in family cases, is not the same as sentencing in criminal cases for breaches of the criminal law. As my Lady pointed out in paragraph 29 of that judgment:

"The length of the committal has to depend upon the court's objectives. There are two objectives always in contempt of court proceedings. One is to mark the court's disapproval of the disobedience to its order. The other is to secure compliance with that order in the future. Thus, the seriousness of what has taken place is to be viewed in that light as well as for its own intrinsic gravity."

11. I agree. Again, it is worth stressing that a committal application should be approached both to balance the extent to which one wields the bludgeon and hangs the Sword of Damacles. It must be an endeavour to balance and, if possible, to satisfy both the retributory nature of the punishment for the contumelious and contumacious conduct in defiance of the court's order, as well as serving a coercive function by holding out the threat of future punishment as a means of securing the protection which the injunction is primarily there to do. The court in Hale v Tanner observed also that the length of the committal should be decided without reference to whether or not a sentence should be suspended, and it is not correct to impose a longer period of committal simply because the sting is removed by virtue of the suspension. Her Ladyship pointed out in paragraph 33 (I agree with her observations) that the court has to bear in mind the context. She said:

"This may be aggravating or mitigating. The context is often the break-up of an intimate relationship in which emotions run high and people behave in silly ways. The context of having children together, if that be the case, cannot be ignored. Sometimes that means that there is an aggravation of what has taken place, because of the greater fear that is engendered from the circumstances. Sometimes it may be mitigating, because there is reason to suppose that once the immediate emotions have calmed down, the molestations and threats will not continue."

12. In my judgment, the judge did not fully take on board that this offence occurred in the heat of the break-down of a marriage, a break-down that had been in place over the past several months, in which there had been allegation and reconciliation, holidays and separation, some further reconciliation, and whilst nothing should diminish the force of the court's order, the court has none the less to have regard to the fact that when emotions are raw wisdom flies out of the window. In my judgment, this sentence was so excessive for the events which happened that it should be set aside. I do not dispute that this could be called a bad case. Rather, it is a bad enough case but not a very bad case in the scheme of things and the nature of human degradation which passes daily through the family court. There is no mitigation for contrition, but it seems to me that there was not such serious conduct and such a defiance of the court's order as would bring eight months' imprisonment upon the head of the contemnor. The balance to be struck between enforcing the court's order by punishing for contempt and by serving a sufficient warning shot, to use the judge's words, to govern his behaviour in the future, would, in my judgment, have in this case required a significantly lesser sentence, and for my part I would have thought that it would have been right, given the high emotions of the immediate separation, to give a husband of this kind the most serious warning of his future misconduct would lead him. It may have been an appropriate case for a suspension. The fact is that he has served, taking time from his arrest on 7th November, a period of, on my calculations, of over seven weeks. Had he been of good conduct he would have been released from prison today if the sentence had been of 14 weeks' imprisonment. Taking that into account and giving him the most serious warning, which I would ask his counsel to convey back to the solicitors to convey to him because he is not here to hear it himself, he must understand that, having been sent to prison once, for the next breach of the injunction, which the judge continued on the same day to run for a year, he is almost certainly likely to go back to prison and for a substantially longer time. But, in my judgment, a sentence of two months would meet the justice of this case. It is now served and it would be wrong therefore to suspend it. The warning must serve as the deterrent for further breach. I would allow the appeal and substitute a sentence of two months which will have the effect of his immediate release.
13. LORD JUSTICE ROBERT WALKER: I agree.
Order: Appeal allowed as per judgment; no order for costs; public funding assessment.