Slade v Slade [2009] EWCA Civ 1748, [2009] All ER (D) 182 (Jul)
Court of Appeal, Civil Division, Ward, Wall and Wilson LJJ,
17 July 2009
When imposing a sentence for contempt of court in relation to conduct which has already been the subject of criminal proceedings, the second court should not so much reflect “the prior sentence” in its judgment as decline to sentence for such of the conduct as has already been the subject of punishment in the criminal court.
Kathryn Taylor (instructed by Nottingham Family Law Associates) for the wife. Jessica Lee (instructed by Fraser Brown) for the husband.
The parties divorced in 2007. In March 2008, a residence order referable to their son was made in favour of the wife. Both parents gave undertakings to the court. Subsequently the husband brought proceedings contending that the wife was in contempt of court in relation to breaches of her undertaking.
The judge found six of the allegations proved. In respect of one of the proven allegations, relating to the destruction of the husband’s motorcycle, the wife had already pleaded guilty before justices to a charge of causing malicious damage to the motorcycle.
She had been placed on probation for twelve months in respect of the offence and made subject to a compensation order. The judge in the instant case imposed an 18-month term of imprisonment in relation to the contempt in that regard. T
he judge stated that he was able ignore the criminal sentence to a substantial degree because he was dealing with a gross breach of the undertaking. The wife appealed. The issue arose as to the proper approach to committal proceedings when there had already been criminal proceedings in relation to the same conduct.
Wilson LJ:
The terminology of s 3(7) and (8) of the Protection from Harassment Act 1997 reflected true principle, namely that it was the conduct which was not twice punishable.
Thus the second court should not so much reflect “the prior sentence” in its judgment as decline to sentence for such of the conduct as had already been the subject of punishment in the criminal court. It followed that, even if a civil judge were to regard the punishment given by the criminal court for certain conduct as too lenient, it would be improper for him to use his power of committal in respect of that self-same conduct in order to top up the punishment to what he regards as a proper level. What he had to do was to sentence only for such conduct as was not the subject of the criminal proceedings.
Unfortunately no attention had been given in the instant case to the precept in [48] of Lomas v Parle [2004] 1 All ER 1173, that the second court should be fully informed of the factors and circumstances reflected in the first sentence.
So the judge had to proceed, as did the Court of Appeal, only on the basis that the wife’s visit wilful destruction of the motor bicycle had been the subject of the criminal proceedings, for which the judge should not again sentence her. His sentence had to relate only to: (i) such other aspects of her conduct that night as he found to be proved and to amount to harassment of the husband, thus a breach of her undertaking and accordingly a contempt of court; and (ii) the fact, irrelevant to the criminal proceedings, that the wilful destruction of the motor bicycle also amounted to a breach of the wife’s undertaking and accordingly a contempt of court.
There was no particular difficulty for the judge in identifying the conduct which fell into (i) above. But it had been difficult for him to know how best to approach the exercise identified at (ii).
No doubt the seriousness or otherwise of the breach of the obligation to the civil court, whether undertaken or imposed by injunction, would in part be informed by what one might call its context, namely (for example) by whether it was the first breach or the last in a series of breaches, by the existence or otherwise of warnings of the consequences of a breach or further breaches and by the propinquity in time between the creation of the obligation and the breach.
But the question arose as to how much further the judge could go into the circumstances or content of the breach without sentencing for the conduct for which sentence had already been passed. In the most general terms the judge surely had to be entitled to assess the conduct’s gravity: for the graver the conduct, the more serious the contempt of the civil court. But any more profound assessment risks trespassed upon the area for which sentence had already been passed.
And, even when the breach was serious, the civil court had to remind itself rigorously that, however problematical, its function was to sentence only for the fact of a serious contempt and not for the content of the serious contempt.
By virtue of the above, the judge’s sentence in the instant case was manifestly excessive. His lordship dealt with the remainder of the appeal on the facts, citing Smith v Smith [1991] FCR 233 as a reasonable guide to the proper sentence.
Wall LJ:
His lordship agreed with Wilson LJ. There were three guiding principles. All were sub-divisions of the principle of proportionality. The leading guidance remained Hale v Tanner [2000] 3 FCR 62. The first principle was that the court was not sentencing for the criminal equivalent of what the contemnor had done. The second was that the court should have as much information as possible about the parties and any concurrent criminal proceedings relating to the same or similar facts.
The third was that sentences for contempt of court should not be “manifestly discrepant” with sentences passed in criminal proceedings for comparable offences.
Ward LJ agreed with both judgments.
