England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWPORT COUNTY COURT
(Her Honour Judge Case)

		The Royal Courts of Justice Strand London WC2 Friday 5th July, 2002

LADY JUSTICE HALE:

1. This is an appeal against a sentence of two months' imprisonment imposed by Her Honour Judge Case in Newport County Court on 25th June 2002 for contempt of court in breaching an order made under the Family Law Act 1996.
2. The parties were married on 9th August 1980. They have three children, G, who was born in 1983 and is now 19, and twins S and L, who were born in March 1986 and are now 16. They are now divorced, but I will for convenience call them husband and wife. The husband is a managing director of an engineering firm. He is also a former boxer and now a boxing referee for the British Boxing Board of Control.
3. The wife says that they separated previously in 1994, when she went with the children to a refuge for a year. There was an undertaking given by the husband then. She took enforcement proceedings, but the husband brought alibi witnesses to court and there were no findings of fact against him. The husband agrees that there were proceedings at that time, although he claims to know nothing about his wife going to a refuge.
4. Their final separation was in April 2001. The husband left for another woman to whom he is now engaged. A divorce petition was filed in July 2001. The proposals were that the twins would live with their mother, but stay with their father one or two nights a week. A decree absolute was pronounced in April 2002.
5. On 22nd October 2001 the husband gave undertakings, which were repeated when the case resumed on 23rd November 2001. Those were on the basis of the allegations made in an affidavit by the wife, but of course there were no admissions or findings of fact in relation to those allegations. The undertakings were to last until 23rd April 2002.
6. A feature which was apparent from the evidence filed for those proceedings was that the husband was at that stage awaiting trial on a charge of assault upon his brother-in-law, a Mr Dowding. Mr Dowding had been married to the husband's sister, who very sadly died at a comparatively early age in February 2001. Thereafter, Mr Dowding suffered from throat cancer and had his voice box removed and so he has problems in speaking. Mr Dowding is now the wife's partner. That prosecution was later discontinued. The husband does, however, have a conviction for a later incident in relation to Mr Dowding to which I will return.
7. On 18th April 2002, shortly before the undertakings expired, Her Honour Judge Case heard the wife's application to commit for five alleged breaches of the November undertaking. These alleged various threatening telephone calls, various intimidating and abusive behaviour, including threats to kill, and animosity towards Mr Dowding as well as the wife. The final one was that he came round to Mr Dowding's house when the wife was there, screaming at them both in an abusive way, threatening to kill them and then, as they escaped through the back of the house, smashing the double glazed front door.
8. That last allegation was the subject of a prosecution. The husband pleaded not guilty and called alibi witnesses. Nevertheless, he was convicted of criminal damage on 14th June, although Her Honour Judge Case in the present proceedings was told that this was under appeal. She was also told that he had been fined £1,000. But when the application to commit came before Her Honour Judge Case on 18th April, it was compromised by the grant of an injunction with a power of arrest. Although it does not state -- and in reality could not state -- that it is was by consent, that was the fact of the matter. So again there were no findings of fact upon the wife's allegations.
9. The injunction granted was of indefinite duration and in the following terms:

"(1) The Respondent Mr David Glyn Morgan shall not approach, enter or attempt to enter or go within 10 metres of 4 Deanery Gardens or 5 Mons Close Allt-yr-yn Point Newport.

(2) The Respondent Mr David Glyn Morgan is forbidden to use or threaten violence against the Applicant Mrs Colleen Ann Morgan and must not instruct, encourage or in any way suggest that any other person should do so.

(3) The Respondent Mr David Glyn Morgan is forbidden to intimidate, harass or pester the applicant Mrs Colleen Ann Morgan and must not instruct, encourage or in any way suggest that any other person should do so."

A power of arrest was attached to all three paragraphs of the order. That power of arrest was to expire on 18th July 2002.

10. On 25th June 2002 Her Honour Judge Case heard a committal application following the husband's arrest the previous day. She heard evidence from the arresting police officer, PC Shill, from the wife, from their daughter, S, and from the husband. The husband vehemently denied all of the allegations of breach of the April order. The judge made four findings of breach. The first was that on 8th June 2002, at about 1.30 in the morning, he threatened to kill the wife over the telephone. The wife's account was that he had phoned her in the early hours and begun screaming down the phone, saying that he was on the corner of the street and "I am coming round to kill you" and "I will kill that cancer-ridden cunt", referring to Mr Dowding. The husband's defence to this was that the twins had rung to say that their mother and Mr Dowding were having an argument and they were frightened. That in itself has an air of implausibility about it, and it emerged so late in the day that S had to be recalled to have that allegation put to her. When it was put to her she said "No, that was not what had happened". The police when they had attended had found everybody asleep and had declined to wake them up.
11. The second finding related to 21st June. It was found that he had also made threats to kill over the telephone, alleging that the wife had lied in the Magistrates' Court when he was convicted of the criminal damage offence in relation to Mr Dowding's front door. The husband appeared to have no recollection at all of that incident.
12. The third finding was that on 24th June, between 5.30 and 7.30 in the evening, he had made threats to kill over the telephone using the words "I will kill you and you will all be in fucking body bags before I am finished". The fourth finding was that later that day, at about 8.30 in the evening, he came within ten metres of 5 Mons Close. The circumstances of that were that S found him outside the side gate of the house. The mother was not in at the time. The context of those later incidents was that the husband's fiancée had found a job for S at Sainsbury's, but S had gone down to see him and told him that she did not want it because she was going back to school. The husband agreed that he was concerned about that, but he denied losing his temper or uttering such threats. He agreed that he was in the vicinity of the wife's home, but he was looking at a house in the neighbourhood that he was thinking of buying and he was not within ten metres of the side gate.
13. The judge directed herself that she had to be satisfied so that she was sure. She found the wife a very credible witness. Part of the wife's evidence was corroborated by S. She found S truthful. She found the husband an unreliable witness who made wild allegations. For instance, most implausibly he said that Mr Dowding had been overheard in a pub boasting that he had got the husband convicted of the criminal charge. He also denied knowing anything about his wife's whereabouts when she said she was in a refuge in 1994 because he was in Saudi Arabia at the time.
14. When determining sentence the judge said specifically that she had had regard to the observations of this court (in fact of myself) in the case of Hale v Tanner [2000] 2 FLR 879. She was quite satisfied that immediate imprisonment was the only possible course, "having regard to the long history of orders and breaches of order over a protracted period of time."
15. The husband now appeals against his committal. The first point made on his behalf is that counsel then appearing for him was given no opportunity to address the court specifically in relation to penalty before the judge announced the penalty upon which she had decided. Her short judgment deals with both her findings of breach and the sentence at once, and this is contrary to the County Court Rules, Practice Direction 29, Part II, paragraph 13(5)(c). However, it is the case that counsel addressed the judge before she retired to consider her judgment, both on the issues of fact before the court on the breaches alleged and whether they had taken place, and also in relation to what view the judge might take even if she found that the husband had indeed said these things. Counsel pointed out that during arguments couples say many things to each other and things are said in that way that are not meant. There is no evidence in the past that the husband had ever done anything to carry out any threat or threats to kill. She submitted that it would seem that the wife was trying to paint as black a picture as she could in order to have the injunction extended. She had to have further incidents on which to rely. In these proceedings she was hoping for a finding of fact which would give her an opportunity of getting the injunction extended.
16. It is also the case that when the learned judge announced her decision and her sentence, there is nothing in the transcripts before us to suggest that any protest was made on behalf of the husband, any suggestion that everything that counsel would wish to say on his behalf had not already been put before the judge.
17. Miss Pickthall, who has represented the husband today, has sought to put before us various matters of mitigation which she says should have been before the judge at the time, including his personal financial circumstances as the managing director of what is, she tells us, a one-person business which will be in difficulties as a result of his immediate imprisonment, such difficulties having a knock-on effect for the wife and, more importantly perhaps, the children. The difficulty that those submissions immediately encounter is that this was a case in which the husband was vehemently denying having done what the judge found that he had done. Any counsel who appears in court in criminal cases, which these are not, knows how difficult it is to put mitigation before the court when one wants at that stage to put the offence into a completely different context from the one in which it was put by the victim. That context could not be put to the victim because the whole thing was being denied. Although Miss Pickthall argues that the wife was not taking these threats very seriously, that matter could not be explored in evidence before the judge. The judge herself, of course, was the person best placed, having heard the evidence of the wife, the evidence of S and the evidence of the husband, to judge what the effect of this conduct will have been.
18. Those remarks apply with equal force to the argument that it was wrong to impose an immediate sentence based on this history. In fact there were only four breaches found proved as no actual violence. It is argued that the judge should not have imposed an immediate sentence of imprisonment, bearing in mind the considerations which courts always have to have in mind in dealing with these delicate and difficult situations. This was the first time that the husband had actually been found to be in breach of the order, and it is normally appropriate in such circumstances, even if a sentence of imprisonment is appropriate, to suspend it.
19. Miss Pickthall accepts, of course, that every case depends on its own facts and that there can be no hard and fast rules in this matter. The problems encountering mitigation in this case apply equally to that submission. The ground work for a suspended sentence had simply not been laid. Even now, there is no acknowledgement before the court from this husband that he has done these things; that he realises that he should not have done these things; that he realises that they are unacceptable; and that he promises not to do them in future. In those circumstances, the judge is not in my view to be criticised for relying on her own assessment of the character and personalities of these parties and what the circumstances required. I would certainly not consider it outside the realms of her discretion to impose an immediate sentence in this situation.
20. It is true that at the end of her judgment she made the remark about "having regard to the long history of orders and breaches of order over a protracted period of time." The long history was of undertakings and then an order. The breaches of order were over the period of June, as I have outlined. Who can say whether that was what the judge meant by those words or whether it was not. But given that in all the circumstances of the case this is not an order with which this court is free to interfere, I cannot regard those words as sufficient to justify what would otherwise be an unjustifiable interference.
21. There is a further point raised in the grounds of appeal which Miss Pickthall has not mentioned in her submissions, which is that the judge failed to take account of parallel criminal proceedings arising out of the same incidents. PC Shill's evidence was that the husband had been charged with criminal offences as a result of his arrest, and also that he had been refused bail pending the outcome of the Family Law Act proceedings. It is of course the case that one must be vigilant to ensure that a person is not punished twice for the same conduct. Should those criminal proceedings continue, any court which is sentencing in respect of the same conduct will have to bear what Her Honour Judge Case did in this case very much in mind in considering what an appropriate penalty might be.
22. There is, however, an additional element in contempt of court proceedings which cannot go entirely unmarked, which is the element of deliberate breach of court orders. Sentencing for contempt of court is designed to do two things. It is designed to mark the gravity of the actual behaviour which has been found proved, but it is also designed to mark the gravity of deliberate breach of orders made by the court. Court orders are specifically directed at specific individuals and they are meant to be obeyed. A court cannot allow people to disobey them in this sort of fashion without imposing some punishment.
23. For all those reasons, in my judgment, this appeal should be dismissed.

LORD JUSTICE LATHAM:

24. I agree.
ORDER: Appeal dismissed. (Order not part of approved judgment)