England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Tuesday, 19th June 2001

1. LORD JUSTICE THORPE: The breakdown of the marriage between Mr. and Mrs Couzens has been particularly acrimonious. There have been a string of orders made in the Southampton Court designed to protect Mrs Couzens from threats and obscene abuse from her former husband. The first order to which I need refer is an order made by District Judge Cooper on an application without notice on 15th March. He made an order on that day restraining the husband from using or threatening violence against the wife and from intimidating, harassing or pestering her. Somewhat unusually, the order was put in force for 12 months and a power of arrest was attached. There was no provision for a return date on notice, nor any liberty to the husband to apply for variation or discharge. We are told by Mr. Self, who represents the husband on this appeal, that when the order was served on him he sought advice from his solicitors who arranged an application to the court, effectively for variation or discharge. That came before District Judge Naylor on 27th March, when he allowed two court days for the investigation of the disputes between the couple, fixed that hearing for 5th June and made matching orders restraining the wife from either using or threatening violence or harassing or pestering the husband in the interim.
2. However, very shortly thereafter things blew up with an incident on 3rd April that resulted in the husband's arrest. There was an application for his committal. It came before District Judge Cooper on 4th April. He set the application over to the 17th and attached a further power of arrest.
3. On 17th April there was a hearing, both sides represented by counsel and for almost a full day. There was oral evidence from the parties. The District Judge was not satisfied that four of the alleged breaches had been proved but he did find proved the fifth, which was a threat from the husband to the wife. The husband, in the driving seat of his car and through the open window, threatened that he would get the wife. For that breach the District Judge sentenced him to 28 days but suspended for one year. On 28th April the husband appealed that order but the appeal was set to be heard on 16th June, which of course was about 10 days after the fixture arranged by District Judge Naylor. When the parties came before the court on 5th June, again both represented by counsel, an agreement was reached whereby the husband accepted that he should remain bound by both injunctions until 15th March 2001 provided that the wife would accept similar injunctions against her. That was the agreement. It was made the subject of an order. We are told that the form of the order was settled by counsel, and it was presumably approved by Judge Lauriston. When the appeal came before the same judge on 16th June, again counsel for both parties, it seemed that there was an agreement at the bar that the appeal was misdirected, in that it should have come to this court and not to the judge of the county court. On that basis the appeal was withdrawn and costs reserved to this court. In the event, the appeal was never pursued. It has been said by Mr. Self on the husband's behalf that that was because he could not afford it.
4. The next development in the county court was the issue of an application to commit on 15th March 2001. That came before Judge Milligan on 3rd April, when he gave directions for the filing of evidence and fixed the committal application for hearing on 31st May. At that hearing both the parties gave oral evidence, as did at least one other witness. Having heard submissions from counsel, the judge gave a short judgment in which he found proved the incidents relied on by the wife in her application of 15th March. In particular, he found proved an episode on 20th July 2000, in which the husband had followed the wife and said that he would scar her for life and another incident on 26th October 2000 when he had again threatened the wife, saying that he would get her next time, having either kicked her on the inside of her foot or having attempted to trip her in the street. Thirdly, the judge found proved an incident on 9th November 2000 when the husband had called her a whore, subsequently followed her and shouted at her: "You are dead." The wife said that she had not initiated proceedings in relation to any of those three breaches because she was so frightened, but that for her the final straw was an episode on 26th January 2001 when she was walking home late at night. The husband had driven his car at her on the wrong side of the road, narrowly missing her and causing her considerable apprehension. In relation to that the judge found her complaint proved. He rejected the husband's evidence that there had been no such incident. He found that the husband had driven the car at her as described, with the intention to cause her great fear and apprehension. He invited counsel for the husband to address him in mitigation, which he did very briefly. The judge then activated the suspended sentence, and in respect of the four episodes which he had found proved, the subject of the application of 15th March, he imposed an additional sentence of six months', making seven months in all.
5. This appeal was received by the court on 13th June and has been brought on as a matter of urgency because it affects the liberty of the subject. Mr. Self for the appellant has sought to make something of the fact that the consent order of 5th June is not sufficiently plain as to extend the wife's protection to 15th March 2001. It is undoubtedly a piece of drafting that can be readily criticised. It would not be hard to improve upon it. However, I am satisfied that Mr. Couzens was not only well aware of its terms and effect, it was he who, through his counsel, proposed the formula under which each would be subject to identical injunctive terms offering to each identical protection. It seems to me that there is little validity in the fourth ground of appeal, namely that Mr. Couzens was not personally served with that order.
6. A more substantial point is brought in relation to the suspended committal order of 17th April 2000. That was an order of considerable significance. There can be no doubt at all that orders for suspended imprisonment should be drawn on Form N79, which is one of the forms within table 3 appearing at page 82 in the current edition of volume 1 of the White Book. The decision of this court in Linkleter v Linkleter [1998] 1 FLR 360 plainly established, in the judgment of Mustill LJ at page 363, that that was the form for use in cases of suspended committal. That that remains the case is plain from the judgment of the Master of the Rolls in Nicholls v Nicholls [1997] 2 All ER 97 at 102.
7. There can be no doubt that the only order drawn was the order at page 32 of our bundle, which was the absolutely conventional form of order used under the Family Proceedings Rules. It was served by the court on Mr. Couzens' solicitors. It merely recited that the respondent be committed to 28 days' imprisonment suspended for one year. The Form N79 is a form of considerable detail, appropriate to the seriousness of the order that the court makes. It is four pages long and it contains much information that is absolutely essential to draw to the attention of the contemnor the nature of the breaches in respect of which he has been found guilty and the nature of the disposal by way of sentence, suspended provided there is compliance with the terms specifically stated. The question is whether Mr. Self is right in his submission that this was such a fundamental failure on the part of the county court as to undermine the discretionary decision of Judge Milligan to activate the suspended sentence.
8. The point was not taken by counsel in the court below. It is met by Mr. Lillington by general reliance on the decision in Nicholls v Nicholls, which he says renders the decision of the court in Linkleter of no remaining application. Whilst there can be no doubt that the intention of this court was to relax the requirements for strict compliance in committal applications, and to put an end to contemnors escaping their just deserts on mere technicalities, it is plain from the concluding paragraphs of the judgment of the Master of the Rolls that the guidance given requires a balance to be struck between fundamental failures and mere technicalities. In the words of the Master of the Rolls at page 109 in the All England Report:

" (1) As committal orders involve the liberty of the subject it is particularly important that the relevant rules are duly complied with. It remains the responsibility of the judge when signing the committal order to ensure that it is properly drawn and that it adequately particularises the breaches which have been proved and for which the sentence has been imposed.

(2) As long as the contemnor had a fair trial and the order has been made on valid grounds the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside except in so far as the interests of justice require this to be done.

(3) Interests of justice will not require an order to be set aside where there is no prejudice caused as a result of errors in the application to commit or in the order to commit. When necessary the order can be amended.

(4) When considering whether to set aside the order, the court should have regard to the interests of any other party and the need to uphold the reputation of the justice system.

(5) If there has been a procedural irregularity or some other defect in the conduct of the proceedings which has occasioned injustice, the court will consider exercising its power to order a new trial unless there are circumstances which indicate that it would not be just to do so."

9. So where within that broad and comprehensive guidance does the appeal lie? I am in no doubt that the court's failure to serve the order upon the husband in the appropriate and necessary Form N79 is a fundamental defect which is not capable of cure in the manner that Mr. Lillington submits. This is not an error in the completion of the form. This is not striking out a portion of the form that was relevant. This is a fundamental failure to meet the requirements of an essential rule. So in my judgment Mr. Self succeeds in that technical submission. The consequence of that success is that the judge's activation of the suspended order must fall.
10. It remains to consider Mr. Self's submission that the judge's discretionary sentence of six months in respect of the four breaches proved was either manifestly excessive or failed to have regard to relevant areas of mitigation.
11. During the course of his exchange with counsel for Mr. Couzens, the judge made an observation which is heavily and rightly criticised by Mr. Self. He said to counsel that the incident of 26th January might have constituted a charge under section 18 of the Offences against the Person Act 1861. All that the judge had found was that the respondent had driven his car in such a way as to put the applicant in real fear. That, says Mr. Self, does not even get on to the lowest rung of the 1861 Act ladder, namely section 47. In terms of criminality, it would be properly classified as either a common assault or an offence against section 4 of the Public Order Act. Neither of those rises above summary trial with a six month maximum. In contrast, a section 18 offence carries a maximum penalty of life imprisonment. So, says Mr. Self, the judge got off at much too high a level in drawing any sort of parallel between breaches of orders made within the family justice system and the criminal code. He further complains that the judge, although purporting to take account of Mr. Couzens' excellent character and secure employment over 26 years with a single employer, must have made a discount for those weighty considerations, from altogether too high a starting point if he ended up with a six month sentence. Finally, says Mr. Self, counsel in the court below failed to rely on Mr. Couzens' responsibilities towards the youngest child of the marriage, Richard, for whom he has a residence order and who is currently taking his GCSE exams. The consequence of his father's imprisonment is that he has had to move to be looked after by friends.
12. Mr. Lillington in responding to those submissions has only relied upon the matters raised in his skeleton argument. He quite rightly stresses that if repeated breaches of orders designed to protect wives are not visited seriously by the courts, and if a custodial sentence does not flow from breaches of this character, then the integrity of the system is put in question. Manifestly in my opinion, this was a case in which the judge had no alternative but to impose an immediate custodial sentence. It is true that the wife had delayed a period of seven weeks between the last incident, the incident which she described as the final straw, and the initiation of her committal application. It is true that by the time the judge came to sentence some four months had passed without any further problem. But, none the less, this was one of those plain cases in which the husband had been given a clear and final warning by the court in March 2000 and had not once but four times flouted the order.
13. The only question is whether the six months sufficiently reflected the mitigating circumstances and equally whether the judge had started out on a false premise by drawing parallels between the husband's conduct and the sort of criminality that is encompassed by section 18. In my opinion, the judge fell into error in those regards, although it must be said in fairness that the needs and the vulnerability of Richard were not drawn to his attention by counsel in mitigation. Taking all these factors into account, the importance of upholding the value of the court's protective powers and the mitigating circumstances urged upon us today by Mr. Self, I would reduce the length of the sentence from six months to three. So to that extent I would allow the appeal, set aside the activation of the suspended sentence, and for the sentence of six months imposed by the judge impose a lesser sentence of three months.
14. LORD JUSTICE ROBERT WALKER: I agree.
15. MR. JUSTICE CARNWATH: I also agree.
Order: Orders as per judgment; public funded assessment.