Lexis Nexis E-Bulletin Series: Contempt Proceedings and Contempt of Court - Part 3

3/12 Sentencing

This e-bulletin is part of a series covering contempt of court in all its forms and the series is designed to be relevant to all practice areas. Richard Shepherd has been commissioned by Lexis Nexis to draft their Professional Practice Notes on the subject. Albion Chambers is delighted that we have been granted permission by Lexis Nexis to share these guides with our instructing solicitors and professional clients before they have been published online. The next e-bulletins in the series will be published every Tuesday morning.

Generally

This e-bulletin examines the principles and purposes of sentencing in contempt and writ of sequestration cases.

It does not seek to set out a sentencing guide as to the appropriateness or otherwise of the length of a sentence in any given circumstances. As per Longhurst Homes Ltd v Killen [2008] EWCA Civ 402, length of sentence will always depend on a wide variety of matters and of course, the nature of the contempt itself.

Maximum Sentence

The maximum sentence for contempt of court ‘on one occasion’ is two years.

The Meaning of ‘on one occasion’

Under s.14 of the Contempt of Court Act 1981, where the maximum sentence is set, the following language is used “[the sentence] shall not on any occasion exceed two years”. Defining ‘any occasion’ has caused difficulties. For instance, a single act that continues over a number of days may be both defined as ‘one occasion’ or a separate act per day.

The authority of Villiers v Villiers (1994) 1 WLR 493 instead focussed on the date of the court hearing as being the ‘any occasion’. The court stated as follows;

...a judge might sentence for one contempt in the morning and another in the afternoon, or for one contempt one day and another contempt the next day in the belief that by doing so he would not be imposing the sentences on one occasion. I could imagine circumstances in which this court would have little hesitation in holding that there had been a manipulation of the timetable such as to amount to an abuse of process

Moreover, following the potential abuse of process highlighted in Villiers there is some further support from Symes v Phillips & others [2005] EWCA Civ 533 for the contention that it would be inappropriate, in most circumstances, for the court to leave unresolved some other possible contempts, of which it was aware. To do otherwise would be a manipulation of the sentencing regime relating to “on any occasion”.

However, the Court of Appeal made clear in Mukhtar Ablyazov v JSC BTA Bank [2011] EWCA Civ 1386 that the approach in Villiers and Symes was not absolute.

Nevertheless, further support for this ‘finality’ principle can be derived from Central Bedfordshire County Council v Markwick and Markwick [2016] EWHC 2540 (Fam) where the court permitted the council to abandon committal proceedings on the basis that they be restricted from pursuing any further allegations that pre-date a specified date. It should be recognised that Markwick is not a sentencing case per se, though it would appear to be consistent with the sentencing principles outlined above.

Carrots and Sticks

Contempt/Writ of Sequestration sentencing is based upon twinned principles. The first is to punish a contemnor for their wrongdoing; the second is to persuade the contemnor to comply with court orders in the future. Of course, some sentencing exercises will need to address both points.

The difficulty in seeking guidance from any particular case is the varied landscape that the sentencing process must deal with; one case may not be relevant to another set of circumstances. However, to have a good understanding of sentencing in these matters the following three cases are essential reading:

  • Asia Islamic Finance v Dogan [2015] EWHC 3748 (Comm)

  • JSC BTA Bank v Pugachev [2016] EWHC 258 (Ch)

  • Crystalmews Ltd v Metterick [2006] EWHC 3087 (Ch)

Between the three authorities they provide a long list of factors to be considered in a wide variety of sentencing exercises. This e-bulletin does not seek to list all of them, only those that would seem to apply in the widest range of circumstances.

However, generally speaking, a breach of a court order should be treated seriously and sentences will often be significant. Where there is a continuous breach, the court should specify which part of the sentence relates to previous breaches and which fall into the coercive objective.

In line with standard criminal sentencing the court must consider:

  • Whether committal to prison is necessary?

  • What is the shortest time necessary for such imprisonment?

  • Whether the sentence can be suspended?

As part of this process the court must assess any mitigation put forward by the respondent. As an example of where the court failed in this regard, see Symes cited above.

The importance of the coercive objective is illustrated well by the recent case of Supple v Supple [2016] (Ch D) EWHC 2619 (Ch). Despite the contemnor having breached court orders on numerous occasions, by the time the court came to sentence him, he was largely in compliance with those court orders and therefore the coercive objective of the proceedings had been achieved.

Similarly, in Gloucestershire County Council v Newman [2014] EWHC 3399 (Fam) the court found contempt proved, but decided to defer sentencing the contemnor rather than sentencing immediately because the court formed the view that this was the best way of securing future compliance.

Totality, Consecutive and Concurrent Sentences and Time Served

The principle of totality applies as much to contempt sentences as it does to general criminal sentencing. As stated in re: S&A Conversions Ltd and Four Other Appeals [1998] 138 NLJ Rep 169;

the sentencer must stand back from proceedings, and put them in perspective...In many cases, of course, the sentencer will rightly conclude that the sentence should indeed be made to operate consecutively...But in others [such an approach] yields a total time to be served which is simply too long...

The totality principle also applies when assessing a consecutive or concurrent sentence imposed at the same time as activating an existing suspended sentence, see Borough Council of Sandwell v Preece [2007] EWCA Civ 1009.

It should also be noted that although there is no statutory mechanism to deduct from the overall sentence time spent ‘on remand’ waiting for the committal hearing, it is a matter for the court whether it reflects this time spent from the final sentence. However, if a judge decides to deduct the period on remand it is impermissible to stipulate a term of imprisonment “minus the remand”. The judge must give a particular term of imprisonment having already given effect to the deduction as per R (James) v Governor of Birmingham Prison and others [2015] EWCA Civ 58.

Concurrent Contempt and Criminal Proceedings

There are many circumstances where a contemnor may face a sentencing exercise for breach of an injunction (contempt) and breach of underlying criminal law. One example is where a serial offender, such as a rogue driveway company, may be breaching the Consumer Protection from Unfair Trading Regulations due to the way in which consumers are approached whilst also being in breach of a prohibitory injunction preventing the same behaviour.

Where a court is faced with a sentencing exercise for contempt, it should disregard a later sentencing exercise for related criminal offences. The guidance in Lomas v Parle (Practice Note) [2003] EWCA Civ 1804 makes it clear that the sentencing judge should;

...not anticipate or allow for a likely future sentence. It is for the second court to sentence to reflect the prior sentence in its judgment in order to ensure that the defendant is not twice punished for the same act. It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence... There is therefore an obligation on the first court to ensure that the basis of its sentence is fully expressed, and that a transcript of its judgment is made available to the second court, as the judge directed in the present case.

The same approach was applied in the recent Court of Appeal authority of Thomas Gill v Birmingham City Council [2016] EWCA Civ 608.

Sentencing Guidelines

Sentencing guidelines relating to ‘similar’ criminal behaviour should only be relied upon with care. As per Lomas;

a perpetrator may face sentence for the same act which amounts to both a breach of an injunction made in family proceedings and also a crime under the Protection from Harassment Act 1997. Of course, the sentencing courts do not share the same objective and operate in different ranges. The judge in family proceedings has to fit a custodial sentence within a range of 0–24 months. An important objective for him is to uphold the authority of the court by demonstrating that its orders cannot be flouted with impunity. Nevertheless, there will be a shared deterrent objective in the punishment of domestic violence by imprisonment.

However, the approach adopted by the courts has not always been entirely consistent. As a contrary example the Court of Appeal in Amicus Horizon Ltd v Thorley [2012] EWCA Civ 817 the court applied the sentencing guidelines for criminal breaches of an ASBO to civil proceedings, a similar approach was adopted in Doey v The Mayor and Burgess of the London Borough of Islington [2012] EWCA Civ 1825.

The court in Doey commented as follows;

Strictly speaking, the Sentencing Guidelines are only applicable to criminal sentencing. Nevertheless, these guidelines have an obvious relevance to sentencing for civil contempt.

It is suggested that the cases of Amicus and Doey should be treated with a little caution. It is not clear whether the court had the benefit of argument on the appropriateness of using the sentencing guidelines. As an example of the tension in this area, the maximum sentence for breach of an ASBO is five years, whilst a contempt of court for the same action would be two years. It appears difficult to reconcile the applicability of guidelines with a higher maximum sentence to a sentencing exercise with a lower maximum sentence.  

Suspended Sentences and Other Orders on Sentence

CPR 81.29 provides as follows:

(1) The court making the committal order may also order that its execution will be suspended for such period or on such terms or conditions as it may specify.

As logic would dictate, the ‘terms and conditions’ must themselves be lawful and possible to achieve. Though there is no reported case within the law reports challenging the specifics of terms and conditions attached to a suspension (in contempt cases), it is suggested that the ordinary rules must apply so the body of case law that has arisen as to ASBOs, and similar orders may well have persuasive effect here.

Wolverhampton City Council v Darby and Guest [2016] All ER (D) 101 (Feb) is a good example of a court adopting the three point process outlined above, and also where the court uses ‘terms and conditions’ attached to a suspension. Darby and Guest is a High Court authority, though it does not have the enhanced status of Court of Appeal scrutiny it is suggested that the court adopted a proper approach.

In Darby and Guest the court imposed a suspended sentence with the conditions that the defendants did not take part in ‘car cruising’. Therefore the court satisfied the punitive aspect of the process by the imposition of a custodial sentence and also sought to prevent the same activities taking place in the future.

Where terms and conditions are attached, CPR 81.29 provides:

(2) Unless the court otherwise directs, the applicant must serve on the respondent a copy of any order made under paragraph (1)”,

As with other aspects of the committal regime, this puts the onus firmly on the applicant to ensure the respondent knows of the terms and conditions with which they must comply.

Sentencing in Absence

Next Tuesday’s e-bulletin “Hearings in Absence and Hearings in Private” examines the circumstances in which a court may proceed in the absence of the respondent.

In the event a court decides to hear the committal application in the absence of the respondent it does not necessarily follow that if the alleged matter is proved, the court will also continue to sentence.

In JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch) the court expressed the position as follows;

In a case where a serious contempt has been proved in a respondent’s absence, it is, in my judgment, appropriate for the court to pause before proceeding immediately to sentence and to consider whether the matter should, in the alternative, be adjourned.

The court then set out three factors as to why this ‘pause’ was desirable, in summary;

  • It is what happens in the criminal courts;

  • the sentencing exercise may involve mitigation or applications to ‘purge’ or discharge a contempt; and

  • the process in securing a contemnor’s attendance at court for sentence may assist in securing future compliance with court orders.

Fines

A fine can be imposed on its own or in addition to a term of imprisonment.

Costs

The usual rule of costs follow success applies. In the ordinary course of events a claimant or respondent who is successful can expect to receive some or all of their costs back.

However, even when a claimant abandons contempt proceedings, the claimant may still be entitled to some or all of their costs in the proceedings. In Beechcroft Close Management Ltd v TG Estate Management Ltd and Anor [2015] (Ch D) Judgment Date 30/10/2015 the claimant sought compliance with a court order via committal proceedings, after achieving little success through other avenues. The order was eventually complied with and the committal proceedings were discontinued, costs were applied for as against the respondents. The court ordered 50% of the claimant’s costs to be paid; they were assessed on the indemnity basis despite not being ‘successful’ in the proceedings.

Further, tentative, guidance may be derived from UPL Deutschland Ltd v Agchemaccess Ltd and others [2016] EWHC 2135 (CH), the court stated;

It seems to me that one of the matters that I am entitled to take into account is that the Court is entitled to have a rather broad-brush view in relation to the issue of success without having to look at every nook and cranny of the nature of the case and of where the merits lie.

This was not a case concerning contempt but an application to secure documentation, a coercive application that was settled prior to determination. In UPL costs were awarded in favour of the claimant. As a result, drawing comparisons between the situation in Beechcroft above, it would seem that ‘strict’ success in the proceedings is not required, a wider view is permissible where coercive factors are to be considered.

Richard Shepherd

Next Tuesday’s e-bulletin examines “Hearings in Absence and Hearings in Private”