England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Recorder Scott QC)

		Royal Courts of Justice Strand London WC2
		Monday, 26th February 2001

1. LORD JUSTICE HENRY: I will ask Sir Swinton Thomas to give the first judgment.
2. SIR SWINTON THOMAS: This is an application for permission to appeal from an order made by Mr Recorder Scott QC in the Family Division of the High Court on 29th November 2000, when he committed the applicant to prison for 12 months for contempt of court.
3. I must deal first with the fact that it is an application for permission to appeal made out of time. The reasons put forward on behalf of the applicant for being five weeks out of time are, I am bound to say, exceedingly unsatisfactory. However, as I understand Miss Nazareth's submissions on behalf of the respondent, she has not opposed an extension of time; and, as this is a case in which the applicant is serving a prison sentence, we think that in the interests of justice we should grant an extension and treat this case as an appeal.
4. The appellant and the respondent are both young, the appellant being about 21 years old, and they had a sexual relationship. The relationship deteriorated and on 24th May 2000 the respondent applied to a district judge for an order under Part 4 of the Family Law Act 1996. The order that was then made was in these terms:

"1.The Respondent is forbidden from calling at entering or coming within 100 yards of 52A Southwell Road, Camberwell, London SE5.

2.The Respondent Philip Foulkes is forbidden to use or threaten violence against the Applicant Tracey Shipton, and must not instruct, encourage or in any way suggest that any other person should do so.

3.The Respondent Philip Foulkes is forbidden to intimidate, harass or pester the Applicant Tracey Shipton and must not instruct, encourage or in any way suggest that any other person should do so."

5. A power of arrest was attached to each of those paragraphs of the order.
6. The district judge ordered that there should be a return date inter partes on 6th June 2000. On that date an identical order was made and the order provided that it would remain in force until 6th June 2001. The appellant did not attend at the hearing on 6th June.
7. The respondent lived at 52A Southwell Road, Camberwell. Prior to the separation the appellant also lived there, and he returned to live there for a period of time after the making of the order on 6th June. There was an issue as to whether or not he did so with the consent of the appellant. He did not remain for long, and he then moved out to live with his father.
8. On a date towards the end of August 2000 the appellant went to 52A Southwell Road and he assaulted the respondent. He was sentenced to serve six months' imprisonment by the Camberwell Green Magistrates' Court. The fact of that assault is a matter that the court is entitled to take into account when considering the breach the subject matter of this appeal. The breach which we are considering is not, accordingly, the first occasion on which the appellant subjected the respondent to violence.
9. On 22nd November 2000 the appellant was released from the Feltham Young Offenders Institution. In the early hours of the following morning, at about 2.30am, less than 24 hours after his release, he went to 52A Southwell Road. There was a substantial conflict as to what occurred, but the recorder unhesitating and firmly accepted the evidence of the respondent, and his order was accordingly and properly based on the account given to him by the respondent.
10. In his judgment the recorder set out the evidence he had heard in relation to the incident which occurred on 23rd November. He said: "The applicant's evidence is that she was asleep in bed. She was having to get up to go to work later that morning, and the first she knew was that she heard somebody in her back garden. The only person who could find his way into the back garden was the respondent, because he had told her previously that he knew a route in. Accordingly, she knew immediately that it was him."
11. The recorder said that the conversation which followed lasted some 50 minutes, during which the respondent refused to let the appellant in. He continued:

"She told me that she let him into the flat because she was frightened because of threats which he made, that unless she let him in he would break a window and make his way in in any event. I accept beyond doubt her evidence that she was frightened of him from start to finish of this incident, and that her actions were dictated by the fact that she was in fear of him. I accept that what she was doing was to try to keep the situation calm, that she was in fear for her personal safety, that she believed the threats which she told the court he made in relation to her personal safety, and that whatever she did was dictated by a wish to try to prevent matters from going from bad to worse. She told me that when she let the respondent in he paced up and down, putting his face up to hers and that she was scared that he was going to kill her. I accept that evidence completely."

12. The recorder then quoted paragraph 9 of the respondent's statement as to what happened next. She said in her statement:

"Mr Foulkes would not leave. By about 3.30 in the morning of the 23rd November he asked me to call him a cab, which I did, but the cab company could not get to my home until 4.00am. After I called them, he took my phone off me. This is a mobile phone, and he started to look through the phone book on it to see if I had any men's numbers. He also read messages that I had on my phone. One of them did concern a man and he said `My heart's just missed a beat', and slapped me round the face with his left hand."

13. Then the recorder quoted from paragraph 10 of her statement as follows:

"I have a mirror in my living room, which had broken recently and I had not yet thrown it away. Mr Foulkes then picked up a piece of broken mirror and held it to my neck, saying he was going to kill me and that if he could not have me no one else could. He told me he was going to petrol bomb the house from both sides, front and back, and he said he hoped my boys would be in the flat with me and would die with me."

14. The recorder cited further threats, including a threat that the appellant would kill her.
15. The respondent managed to make her way to the toilet and while she was there she was able to telephone the police. She said that the applicant threatened to have acid thrown in her face. He made threats in relation to her mother and her sister. She said, "He had beaten me up before. I tend to believe him." After that incident, the police arrived.
16. The recorder concluded his findings by saying:

"I find that the events which occurred during that two and a half hour period were terrifying for the applicant. They are a contempt of court of the most serious kind and of a kind which can only be reflected by a prison sentence of some length."

17. For my part, I agree entirely with what the learned recorder said in that passage.
18. In my judgment this was indeed a very serious assault. It was a serious breach of the order which had been made on 6th June 2000. It was quite deliberate. The appellant had subjected the respondent, who was a young woman, to serious violence and this was not the first time that he had done so. He did it within 24 hours of his release from prison in respect of another assault upon her. He terrorised her over a period of some two and a half hours or more and she was very frightened. When he was taken before the recorder, he exhibited no remorse at all for what he had done.
19. In her submissions Miss Hurworth, on behalf of the appellant, submitted that he was entitled to rely on the fact that the appellant and the respondent had lived together for a period of time in May, and Miss Hurworth says that the appellant was entitled to believe that she would not enforce the order that had been made. I find it quite impossible to accept that submission. She complained to the police following the incident of violence in August. The order was served on him on 18th September, whilst he was serving his sentence. He could have been in no doubt, in my view, that she intended to rely on the order. There could be no other possible reason why she arranged with her solicitors to have it served upon him.
20. The other, and much more substantial, point that is taken by Miss Hurworth is that a sentence of 12 months was, in all the circumstances, too long. It is right, despite the fact that there was the earlier assault in August, that this was the first breach of the order made on 6th June.
21. We were told by counsel that, when the application was heard by Mr Recorder Scott in this building on 29th November, the police were present and they took notes in relation to what was said and as to what had occurred in the course of the assault. It may well be that criminal proceedings will be taken by the police in respect of the matters which occurred on the day and in respect of which the appellant was committed for the breach of this order. The fact that there are (or, indeed, that there may be) parallel proceedings is something we are entitled to consider and take into account, and we do.
22. Miss Hurworth invited our attention to a number of authorities. Those authorities are not of very great assistance. They are not of great assistance because they, of course, as always, turn upon their own facts and, in relation to most of them, they relate to cases where an appeal was made to this court and the appeal was dismissed. It does not follow from the fact that an appeal is dismissed that the court would not have upheld a longer sentence.
23. In the case of N v N (Contempt: Committal) [1992] 1 FLR 370, the appellant, in breach of an order made against him, broke into the matrimonial home and, whilst there, he raped his wife. He was sentenced to serve six months' imprisonment in relation to that breach. Russell LJ gave the leading judgment in that case and, at p.375, said this:

"As to the term of imprisonment which was imposed, this was in no sense a punishment for the criminal offence of rape; it was a sentence imposed to mark the court's appraisal of the aggravated circumstances in which the breach of the order was committed. I need say no more than that, in my judgment, the sentence - if that be the right term - of 6 months' imprisonment for what happened here was in no sense wrong in principle or excessive in terms of time. The 2 months' sentence of imprisonment was expressed to be concurrent with the 6 months in respect of the breach involving rape, and I can find no fault in that course either."

24. Hale v Tanner [2000] 2 FLR 879 was a case which was different to the present case. It was different, in particular, because it was a case where the breach consisted of visits to the complainant's home and no violence was involved. The leading judgment was given by Hale LJ. The headnote, in part, reads as follows:

"(1) There was a dearth of guidance in sentencing for contempt of court. The court could not give guidance on the length of sentences appropriate to particular types of breach. Furthermore, statutory provisions relating to sentencing in ordinary criminal cases could not generally be applied to sentencing for contempt, and family cases raised different considerations from those elsewhere in civil law."

25. Then certain general principles were set out by Hale LJ, which do not, in the main, have relevance to this case. At paragraph (38) of her judgment, however, she said this:

"It is rare, when one looks at the reported cases, to find sentences of 6 months' imprisonment in the context of much more serious breaches than took place in this case. One tends to find, even in cases of violence causing quite significant injury, a shorter sentence. As I say, I do not wish to say anything more about that, but it is an indication that there is merit in the suggestion that the sentence was manifestly excessive in this case."

26. I was a party to that comparatively recent decision and I have a very clear recollection that in that case we had a number of authorities shown to us relating to cases of violence which bore out what Hale LJ said in the paragraph which I have just quoted.
27. The question then arises whether 12 months' imprisonment was in the circumstances of this case too long. For my part, I have found that a difficult question to answer. In many ways it is difficult to say that a sentence of 12 months was too long. I say once again that this was a very serious breach involving violence. As against that, the appellant is comparatively young. It is the first occasion in respect of which he falls to be sentenced in respect of a breach of the order. Although undoubtedly the violence was serious, happily the respondent did not suffer any serious injuries.
28. In all those circumstances, I have myself come to the conclusion that a sentence of 12 months was somewhat too long. I would reduce that sentence to a sentence of six months' imprisonment.
29. LORD JUSTICE BUXTON: I agree that the appeal should be allowed to the extent indicated by my Lord, but, like him, I have found this an extremely difficult case and I will therefore venture to add some brief words of my own.
30. I think I should first say something about the question of an extension of time. I agree with my Lord that time should be extended. In a case where an appellant is serving a prison sentence, where there is at least some explanation for the delay, and where the court comes to the conclusion, as I have, that the sentence should be reduced, it would be unusual for a time point to cause that decision not to be put into operation.
31. I do have to say, however, that the present case is unsatisfactory in that respect. The appellant was committed to prison for 12 months by the recorder at an inter partes hearing on 29th November 2000, at which he had the benefit of representation both by solicitors and counsel, their legal aid order no doubt extending to advice on the matter of an appeal to be tendered to him immediately after the hearing. In the statement put forward in support of the application for an extension of time, nothing is told to us about what occurred on 29th November or whether advice was in fact tendered. It appears from the submissions that we heard today that advice was, as one would expect, tendered to Mr Foulkes. He, perhaps understandably, felt himself not to be in a position to make up his mind whether he should pursue the matter. Written advice was sought from counsel. That was not delivered until the day before the last day on which time expired. Thereafter difficulties were encountered both with the Legal Services Commission and with the prison in obtaining access to Mr Foulkes - difficulties that extended until the beginning of January. Again I am bound to say that, if matters are left to the last moment and if it is not made plain to the client that he has to make up his mind one way or another, the effect of such difficulties is bound to be magnified. It was not until 16th January, five weeks out of time, that Mr Foulkes eventually decided that he wished to give instructions to appeal. What we were not told in this history (and we were not told because solicitors and counsel representing Mr Foulkes were not aware of it) was that on 8th January he had applied to the court to purge his contempt: an application that was not successful.
32. Against that history, and particularly against the history that he originally took the course of applying to purge, I have great difficulty in thinking that this is a case where Mr Foulkes should be further indulged by time being extended. But as I have indicated, because of the view I take of the substance of the matter, I reluctantly feel constrained to extend time.
33. So far as the substance of the matter is concerned, I entirely agree, if I may say so, with my Lord and what he has said about the seriousness of this offence. It occurred the day after Mr Foulkes had been released from prison, he being in prison because of a previous assault committed upon Miss Shipton. The terrorising effect that he had upon this young woman is made, of course, far worse by the fact that he invaded and imprisoned her in the very premises that he was forbidden to enter at all by the court order. I am not surprised that the recorder took the view that this was a flagrant and serious contempt of court (which it was) and that it could only have been properly met by a condign prison sentence.
34. I am, however, persuaded that in the circumstances of this case it is right to reduce the sentence imposed by the recorder of 12 months to one of six months. The following considerations have weighed with me in coming to that conclusion. First, in looking at sentences for contempt of court, it is inevitable that one has to look at them in the context of the maximum that can be imposed, the maximum being a period of two years. Secondly, it is a feature of this case that Mr Foulkes was not in court when the order was made. That, of course, cannot be to his credit because he was served with the proceedings, but it is a fact that he was not there and that thereafter the order was not served on him until he found himself in prison in September. Although the recorder heard evidence about Mr Foulkes having been shown the order by Miss Shipton when he returned for a period to live with her, he does not seem to me to have made specific findings as to whether Mr Foulkes was aware of the precise terms of that order before it was served on him on 18th September. If he knew the terms of the order, then he was bound by it whether it had been formally served on him or not. But in the state of the recorder's findings, I find myself constrained to approach this case on the basis that it is not established that, when Mr Foulkes assaulted Miss Shipton (the matter for which he was sentenced to a period of imprisonment by the magistrates), he was clearly aware that he was acting in breach of the court's order. The significance of that is that the matter for which he appeared before Mr Recorder Scott on 29th November has to be regarded in Mr Foulkes's favour as a first breach of the order, knowing its terms. Of course, that is not to undervalue the significance of his previous assault, nor to suggest that that is not to be taken into account. But so far as defiance of the court is concerned, this matter, I think, has to be looked at on the basis that the matter with which Mr Recorder Scott had to deal was the first instance of such defiance. That is a factor of some significance to take into account in deciding where, on the spectrum of seriousness, this matter should fall.
35. Further, like my Lord I have in mind that there appears to be every prospect that, perfectly rightly, criminal proceedings are to be pursued against Mr Foulkes because of the imprisonment and assault that he inflicted on Miss Shipton on the day of which complaint is made. That also, in my judgement, requires the court to proceed cautiously in placing this matter on an appropriate scale of seriousness.
36. Again like my Lord, I do not gain a great deal of assistance from looking at sentences in other cases, though to some extent I accept that the review of which this court had the benefit in Hale v Tanner gives some sort of indication of the level of sentences that have been customarily imposed in the past.
37. For all those reasons, therefore, I accept that this is a case in which a sentence of six months' imprisonment would have been appropriate.
38. Those advising Mr Foulkes will no doubt wish to draw his attention very firmly to the fact that the order of the court is still in place. It is still subject to a power of arrest and, should he be so ill-advised as to commit any further breach of that order, he will do so having been told in the clearest possible terms, not only by Mr Recorder Scott, but also in this court, what the consequences of that are likely to be. He will no doubt also be advised that, should he commit a further breach of this order, there will be no possibility whatsoever of a court imposing a sentence anything less than that which was imposed by Mr Recorder Scott, and possibly even more than that.
39. However, in all the circumstances I agree with the order proposed by my Lord. I would allow the appeal to the extent that he indicates.
40. LORD JUSTICE HENRY: I agree with both judgments in this case. I am finally persuaded to reach that decision in this difficult and borderline case for two reasons.
41. The first is the passage cited from the judgment of Russell LJ in N v N. The term of six months with which we have replaced the original 12 months sentence is in no sense a term of imprisonment for any criminal offence of threatening behaviour or assault which the applicant may be found to have committed on that evening in any future criminal proceedings. They are parallel proceedings. In para (34) of Hale v Tanner Hale LJ said:

"... 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."

42. Here, I take into account the possibility that there may well be parallel criminal proceedings in this case.
43. Secondly, there is the need for like justice in like cases. Hale LJ, again in paragraph (38), emphasised that when she said that one tended to find, even in cases of violence causing quite significant injury, a shorter sentence than the sentence of six months' imprisonment which had been imposed in that case.
44. For those two reasons, I agree that this appeal should be allowed to the extent indicated.
Order : extension of time for appealing granted; appeal allowed to extent of reducing sentence to six months' imprisonment; detailed assessment of both parties' public funded costs.