Hale v Tanner [2000] EWCA Civ 5570

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE OXFORD COUNTY COURT

[2000] EWCA Civ 5570

Case No B1/2000/0452

Venue (HIS HONOUR JUDGE HAROLD WILSON), Royal Courts of Justice, Strand, London WC2

Between

Hale

Tanner

Before

Lord Justice Swinton Thomas

Lady Justice Hale

Sir Christopher Slade

Date 20 July 2000

LORD JUSTICE SWINTON THOMAS:

Lady

Justice Hale will give the first judgment.

LADY JUSTICE HALE:

[2]This is an appeal against the order of His Honour Judge Wilson, the Recorder of Oxford, made in the Oxford County Court on 3rd April 2000. He committed the appellant to prison for six months but suspended that committal. As recorded in the order, this was until 3rd October 2000; but as explained in his sentencing remarks, if I may call them that, it was for as long as she complied with the underlying order. This was an order made by His Honour Judge Julian Hall, also in the Oxford County Court, on 21st January 2000. The relevant parts of that order read as follows:

“1. The respondent, Rachel Tanner, is forbidden to intimidate, harass or pester the Applicant, Jamie Hale, or to threaten to use violence against the Applicant, Jamie Hale, whether by herself or by encouraging any other person to do so. “2. That there [be] a Power of Arrest attached to the above order. “3. That Paragraphs 1 and 2 shall remain in force until 21st January 2001.”

[3]Accordingly, His Honour Judge Wilson stated his intention that the suspension should last until 21st January 2001.

[4]We have not seen any judgment delivered by His Honour Judge Hall and in practice there may have been none. The order records that he had read statements from the applicant, Jamie Hale, dated 17th December 1999 and 21st January 2000. We have not seen the latter but a disturbing history is given in the former. The applicant, Jamie Hale, was the appellant’s ex‑boyfriend. They had a relationship for some two years and lived together in a rented flat until January 1999. Mr Hale alleged that while they were together, the appellant was often violent towards him, destroyed or stole his belongings, drank heavily, took illegal drugs, had mental health problems, came to the shop where he worked screaming and shouting so that in the end he lost his job. When he ended the relationship, the appellant told him that she was pregnant with his child. At first he doubted whether she was pregnant but she did indeed have a daughter called Paige in July 1999. He also doubted that the child was his.

[5]After they parted, he complained that she bombarded him with phone calls. He had to change his telephone number. He also, very soon thereafter, started a new relationship with Teresa Mahoney. The appellant made threatening phone calls to her and to her work. After the birth of the baby, she visited their home with her sister and the baby and became abusive when they said that they were not interested in speaking to her. She also sent a letter with photographs of the baby.

[6]On 7th September, she made many abusive telephone calls to Teresa Mahoney’s mobile phone. There was specific allegation that the appellant phoned her at 17.52 pm and shouted:

“’I’am at Donnington Bridge social club and there is a bloke in here that f**king hates you and Jamie. He is going to f**king kill you both.’”

[7]And a later call:

“’No matter what anyone says or does you f**king bitch, I’ve got Jamie’s kid and he’s fucking paying for it in every way.”

[8]There were many other phone calls that same day.

[9]On 13th September, it was alleged that the appellant phoned nine or ten times leaving messages containing unpleasant threats. The calls continued sporadically throughout September and into October. Complaints had been made to the police and the police told Mr Hale they were trying to arrest the appellant for harassing Miss Mahoney. There was a quiet week at the end of October when he understood that she had been arrested and charged in relation to Miss Mahoney. The calls started again at about 7th November. There was a visit with the baby and three men to his sister’s home. There was also a telephone call asking whether anyone in the family had a heart condition as the baby was in hospital with a heart problem. He had reason to believe that that was untrue but it was upsetting because his father had had heart problems.

[10]In his statement he says that the relationship with Miss Mahoney ended in November because of the strain, although they later did resume their relationship. There were more telephone calls around his birthday in early December. Eventually, therefore, an application for a non‑molestation order and a power of arrest, under Part IV of the Family Law Act 1996, was made dated 17th December 1999.

[11]When the matter came before His Honour Judge Hall on 21st January 2000. It is scarcely surprising that he made a non‑molestation order upon that evidence. The appellant did not attend the hearing and was not represented at it. However, the order records there was an affidavit of service, proving that the application had been served upon her. The power of arrest, therefore, fell to be considered under section 47(2) of the Family Law Act 1996. This reads:

“If (a) the court makes a relevant order; and (b) it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child, it shall attach a power of arrest to one or more provisions of the order, unless the court is satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such a power of arrest.”

[12]The power of arrest made that day records that the court was satisfied that the appellant had used or threatened violence against the applicant. The power of arrest was, however, attached to the whole of the non‑molestation order.

[13]I would not wish to criticise that in any way, I would only comment that section 47(2) clearly contemplates that the court has a discretion as to which parts of the order should or should not attract a power of arrest. There is, of course, a presumption in favour of a power of arrest unless the court is satisfied that the applicant will be adequately protected without it. But, clearly, there are distinctions to be drawn between cases where what is prohibited is the direct use of violence, or the face‑to‑face threat of violence, or the stalking of somebody and the lurking outside their premises; the sorts of conduct which can readily be prevented by a power of arrest and for which such a power may well be appropriate. It is less obvious that distance harassment should necessarily attract a power of arrest in every case.

[14]The evidence presented to the learned judge on this occasion was of prolonged and persistent harassment which had had most unfortunate effects upon the applicant and upon Miss Mahoney.

[15]Thereafter, the order was apparently served. We have not seen an affidavit of service but the applicant, Mr Hale’s, witness statement to the police made on 17th February 2000 says that it was served on 6th February 2000.

[16]In that statement, the applicant complained that the appellant had contacted him ten times during the previous week but the worst occasion was on the night of 16th February 2000. He said that the appellant had telephoned his mobile phone and wanted to talk about the baby. He did not wish to talk. They had five telephone conversations and she made a total of 41 telephone calls to his mobile phone over the course of some two hours, until he eventually turned it off. The British Telecom record supports that.

[17]He complained to the police the next day. The appellant was not, however, arrested until 3rd April when a police officer was telephoned by Mr Hale to say that the appellant was at Oxford Magistrates’ Court and the case was due to finish. The police officer therefore went to the court and arrested her and she was immediately taken before His Honour Judge Wilson in the county court.

[18]We have been told today, and in my view it is relevant to this appeal, that the proceedings in the Oxford Magistrates’ Court were under the Protection from Harassment Act 1997 and related to complaints of harassment of Teresa Mahoney, between the dates of 8th April 1999 and 29th December 1999. Thus, there is some overlap between the subject matter of these proceedings and the subject matter of those Magistrates’ Court proceedings. The outcome, we are told, was a restraining order prohibiting the appellant from contacting either Miss Mahoney or Mr Hale.

[19]In the county court, the appellant admitted disobeying the order of 21st January 2000 by telephoning the applicant on 16th February 2000 between the hours of 9.40 pm and 11.40 pm. She was sentenced, as I have said, is six months’ imprisonment, suspended for one or other of the two periods mentioned.

[20]On appeal, the main contention advanced by Mr Vater on her behalf is that a sentence of six months’ imprisonment was manifestly excessive in the circumstances. The mitigating factors that he suggests should be taken into account are: firstly, that there had been a full admission, which he argues should be treated as equivalent to an early plea in a criminal case; secondly, this was the first and only breach of the order; thirdly, the appellant had not been present in court when the order was made and had taken no legal advice about it or its implications, and so had not received what might be called the usual oral face‑to‑face warning that often applies in these cases; and fourthly, that she is the mother of a young baby and there will obviously be hardship if the suspended sentence is activated.

[21]He also argues that the court in committal proceedings should apply similar principles to those applicable in the criminal jurisdiction. In particular, the court should observe section 48 of the Criminal Justice and Public Order Act 1994 and state that it has taken into account the admissions made. Also by analogy it should apply the concepts of the Criminal Justice Act 1991, sections 1, 2 and 3. That is that the court should not pass a custodial sentence unless the offence was so serious that only such a sentence could be justified; secondly, that this should be only for such term as is commensurate with the seriousness of the offence, and thirdly, that the court should take into account all such information about the circumstances of the offence including any aggravating or mitigating factors as is available to it.

[22]He also argues that the court should explain the reasons why it is imposing the penalty imposed so that the contemnor knows precisely what the basis is for the choices made by the court. There is also the point that this particular order is defective in that it does not reflect what the judge said in his remarks.

[23]The court is aware of a feeling, both amongst practitioners and the judiciary, dealing with cases under the Family Law Act, that there is a dearth of guidance on sentencing for contempt of court. It is brought into particularly sharp focus by the Family Law Act 1996 and by the widened jurisdiction involved. Nevertheless, it would not be appropriate for the court on this occasion to seek to give guidance as to the length of sentences that should be contemplated for particular types of breach. I say that because the sort of exercise which would normally be appropriate to such guidance has not been conducted in this case. We have not been presented with tables of comparables, derived from other reported cases or indeed from the practice in County Courts up and down the country, which would make that possible.

[24]Furthermore, I would not wish to suggest that there should be any general principle that the statutory provisions relating to sentencing in ordinary criminal cases should be applied to sentencing for contempt. The circumstances surrounding contempt cases are much more various and the objectives underlying the court’s actions are also much more various. There are, however, some points which it may be worth making.

[25]In making those points I would wish to emphasise that I do so only in the context of family cases. Family cases, it has long been recognised, raise different considerations from those elsewhere in the civil law. The two most obvious are the heightened emotional tensions that arise between family members and often the need for those family members to continue to be in contact with one another because they have children together or the like. Those two factors make the task of the court, in dealing with these issues, quite different from the task when dealing with commercial disputes or other types of case in which sometimes, in fact rarely, sanctions have to be imposed for contempt of court.

[26]Having said that, firstly, these cases have to come before the court on an application to commit. That is the only procedure which is available. Not surprisingly, therefore, the court is directing its mind to whether or not committal to prison is the appropriate order. But it does not follow from that that imprisonment is to be regarded as the automatic consequence of the breach of an order. Clearly it is not. There is, however, no principle that imprisonment is not to be imposed at the first occasion: see Thorpe v Thorpe

[1998] 2 FLR 127

, a decision of this court. Nevertheless, it is a common practice, and usually appropriate in view of the sensitivity of the circumstances of these cases, to take some other course on the first occasion.

[27]Secondly, there is the difficulty, as Mr Brett has pointed out, that the alternatives are limited. The full range of sentencing options is not available for contempt of court. Nevertheless, there is a range of things that the court can consider. It may do nothing, make no order. It may adjourn, and in a case where the alleged contemnor has not attended court, that may be an appropriate course to take, although I would not say so in every case. It depends on the reasons that may be thought to lie behind the non‑attendance. There is a power to fine. There is a power of requisition of assets and there are mental health orders. All of those may, in an appropriate case, need consideration, particularly in a case where the court has not found any actual violence proved.

[28]Thirdly, if imprisonment is appropriate, the length of the committal should be decided without reference to whether or not it is to be suspended. A longer period of committal is not justified because its sting is removed by virtue of its suspension.

[29]Fourthly, the length of the committal has to depend upon the court’s objectives. There are two objectives always in contempt of court proceedings. One is to mark the court’s disapproval of the disobedience to its order. The other is to secure compliance with that order in the future. Thus, the seriousness of what has taken place is to be viewed in that light as well as for its own intrinsic gravity.

[30]Fifthly, the length of the committal has to bear some reasonable relationship to the maximum of two years which is available.

[31]Sixthly, suspension is possible in a much wider range of circumstances than it is in criminal cases. It does not have to be the exceptional case. Indeed, it is usually the first way of attempting to secure compliance with the court’s order.

[32]Seventhly, the length of the suspension requires separate consideration, although it is often appropriate for it to be linked to continued compliance with the order underlying the committal.

[33]Eighthly, of course, the court has to bear in mind the context. This may be aggravating or mitigating. The context is often the break‑up of an intimate relationship in which emotions run high and people behave in silly ways. The context of having children together, if that be the case, cannot be ignored. Sometimes that means that there is an aggravation of what has taken place, because of the greater fear that is engendered from the circumstances. Sometimes it may be mitigating, because there is reason to suppose that once the immediate emotions have calmed down, the molestation and threats will not continue.

[34]Ninthly, 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 contender to suffer punishment twice for the same events.

[35]Tenthly, it will usually be desirable for the court to explain very briefly why it has made the choices that it has made in the particular case before it. One understands all the constraints in a busy county court, dealing with large numbers of these cases these days, and one would not wish to impose too great a burden on the judiciary in this respect. Nevertheless, it would be appropriate in most cases for the contemnor to know why he or she was being sentenced to a period of imprisonment; why it was the length that it was; if it was suspended, why the suspension was as it was, but only very briefly.

[36]An important part of the exercise is that the contender should understand the importance of keeping court orders, of not breaking them and the likely consequences if they are so broken. There is no doubt that the judge in this case made that part of the exercise entirely plain, whether or not to good effect is another matter, but he might have perhaps devoted three sentences to the earlier part of the explanation.

[37]Having said all that, how does it apply in this case? There is no doubt that the conduct as described in the witness statement which I have summarised was extremely upsetting and damaging. This sort of behaviour can have, in many ways, a more troubling effect than more immediate losses of temper. Nevertheless, there is little indication of immediate threat, and when one is looking at the particular breach as opposed to the background, there was no immediate threat. These were telephone calls of an unpleasant nature.

[38]It is rare, when one looks at the reported cases, to find sentences of six 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.

[39]The factors also had to be taken into account that the appellant had admitted it straight away. This was almost a “bang to rights” case in which the appellant would have been most unwise to have denied it, given the clear evidence that the phone calls had been made. But she had not been at court when the original order was made. This was her first appearance for these proceedings, albeit not for other proceedings. She had not, therefore, had the benefit of the warnings that are routinely delivered and we are told she had not, before then, sought legal advice. It was the first breach and there were the other circumstances, family circumstances, including the fact that she is the mother of a very young child who cannot entirely be left out of account in these proceedings.

[40]For all those reasons, I conclude that the sentence was excessive and in my view it should be reduced to one of 28 days.

[41]As far as the length of the suspension is concerned, however, it seems to me that the judge was entirely right in linking it to the underlying order and an underlying order for a period of a year, given the history of this case, was entirely justifiable. I would therefore correct the manifest error in the recording of the order by suspending it to 21st January 2001.

SIR CHRISTOPHER SLADE: I agree.

LORD JUSTICE SWINTON THOMAS: I also agree.

ORDER

Previous order was excessive and reduced to a sentence of 28 days. The order made today continues until 21st January 2001. There should be a legal aid assessment in relation to costs. Order does not form part of the approved judgment.

Cited in 22 later judgments

and 13 more of the most senior