Sherwin v Sherwin [2003] EWCA Civ 1726

Case No B1/03/0604[2003] EWCA Civ 1726
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE YELTON)
Venue Royal Courts of JusticeDate Wednesday, 12th November 2003
Strand
London, WC2
B E F O R E:
THE PRESIDENT OF THE FAMILY DIVISION
(Dame Elizabeth Butler-Sloss)
LORD JUSTICE BROOKE
LORD JUSTICE LATHAM
Between
JASON JOHN DAVID SHERWINAppellant-v-
Between
YVONNE NATALIE SHERWINRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR. N. ANDERSON (instructed by Messrs Sheldons, Southend on Sea) appeared for Appellant.MISS S WALKER (instructed by TMK Solicitors, Southend) appeared for Respondent.
J U D G M E N T
[1]THE PRESIDENT:: This appeal arises out of flagrant and persistent disobedience to court orders. The result of that disobedience was the order of His Honour Judge Yelton on 24th February 2003, whereby he sentenced the appellant to the maximum sentence permitted under the Contempt of Court Act; that is to say, two years. The effect of that would be that this appellant would not be released from prison until February 2004. The appellant sought permission for extension of time because the solicitors, for reasons beyond their control connected with public funding, were unable to get the papers in within the statutory period. The permission for extension of time was granted by Thorpe LJ in May of this year.[2]Before going into the facts and the reasons for this appeal, I would like to say a word about the fact that, although he was sentenced under the contempt proceedings on 24th February, it does not come to this court until 12th November. It was looked at by Thorpe LJ in May of this year. That was an unacceptably long time for the case to get to the supervising judge dealing with family cases. The delays, however, do not arise in the appeal to the Court of Appeal but from a series of situations, of changes of solicitors and of failure to provide bundles over the changes of solicitors, and delays in bringing the case to court, partly due to the convenience of solicitors and the convenience of counsel. Underlying all of this sorry tale of delay is the fact that the man's liberty was at stake. I am particularly concerned that Thorpe LJ on 9th May directed that the appeal should be listed before him on the first open date. The 9th May is a considerable time in the past. The matter did not go back to Thorpe LJ for reconsideration as to the delays, and that is a failure which in my judgment needs to be addressed by the Court of Appeal Office, but the fault does not lie in the Office that the case was not heard. It lies elsewhere. Clearly, the Court of Appeal must tighten up its procedures, not to permit cases where the liberty of the subject is the matter before the court to drag on in this way.[3]This is a domestic violence case. The parties had known each other since 1999. They married in March 2001 and separated in May. Their relationship has throughout been volatile and unstable and punctuated by assaults, harassment and unhappiness, lying almost all at the door of the husband. On 20th December 2001 the wife obtained a non-molestation and occupation order on a without notice from a district judge. On 27th December the order was continued inter partes. The husband did not attend. There was a power of arrest attached to the order. By 4th January there was a breach of the further order. On 22nd January 2002 there were further breaches.[4]Judge Yelton by this stage had taken over control of the case and has been in charge of it ever since. He directed that there should be notice to show cause why the husband should not be committed for the breaches. On 8th February 2002 there was the contempt hearing. The breaches were proved. The husband again did not attend. There were 14 breaches, some of which included serious matters of assault and he was sentenced to 12 months' imprisonment. He was not, however, arrested until 19th April. He then served his 12-month sentence. It is notable that he did not appeal against that sentence. On 30th August he purged his contempt and was released. On 14th November he was re-arrested. There were further powers of arrest imposed on a further order. On 20th December he was arrested for assaults on the wife and her 12-year old son by a previous marriage. On 24th December there were committal proceedings. There were three breaches. He attended and on that occasion he was remanded in custody. There a psychiatric report was directed. On 13th January, having spent the Christmas period in prison for these reports, in the absence of the wife who did not attend, he was released, it being thought by the judge that that was a sufficient sentence to remind him that he had to obey court orders. There was a further order for 12-months. On that occasion he was warned by Judge Yelton that any further breach would result in him receiving the maximum sentence of two years. He was present in court. He was well aware of what the judge was saying. That was 13th January.[5]There were a series of incidents which were said to be breaches, culminating on 20th January when the husband attended at the house of the wife. The wife alleges that he assaulted her very severely, including an injury requiring 30 stitches. She, it is said in self-defence, stabbed him so seriously with a knife that he spent four weeks in hospital and had two major operations. On his discharge from hospital he was taken before the same judge on 24th February where he was represented by solicitors. The wife was present. He admitted one breach of the order and denied all the rest. Principally, he denied any assaults on the wife, and on his admission that he attended on 20th January at the house, contrary to the order, he was sentenced to the two years' imprisonment. The judge said in his judgment on 24th February:
"This is the worst case of domestic violence in the Southend County Court. It has been before this court on numerous previous occasions. On a previous occasion I sentenced you to 12 months' imprisonment, of which you served most. You have been back in prison since that time and had the other allegations been proved, I would have given you a long sentence then. On the last occasion I told you expressly (and it is on the tape) that if you broke the injunction again -- even at Mrs Sherwin's invitation -- you would get two years. Two years is the maximum. In my view, the only way in which to preserve peace in this case is to give you that maximum sentence of two years even though you have accepted it, as the same matters do not apply in civil matters as apply in criminal matters, and the paramount importance in this case is the preservation of the peace."
He went on to say more about the same matter. He ended by saying:
"The main purpose of domestic injunctions is to preserve the life, health and happiness of those who are protected by the injunction. It may be that in this particular incident you came off rather worse, but, on the other hand, you clearly and expressly -- and not for the first time -- disregarded the order, so I shall sentence you to two years' immediate imprisonment."
He has now served very nearly nine months of that sentence.[6]The judge chose not to deal with all the matters that were before the court. In particular, since the husband denied the allegations of assault, the judge did not deal with those. However, the wife was charged with attempted murder and the police have decided not to pursue that charge. She will not be tried for her side of the incident of 20th January.[7]However, while in prison the appellant has pleaded on 17th October guilty to two counts of assault. He was represented, as so often happens in these cases, in the criminal matter by wholly different solicitors and counsel, but Mr Anderson, who has represented him today as on previous occasions, tells us that, as far as he knows, the two counts of assault relate to the 20th January incident.[8]On this appeal Mr Anderson accepts, in his frank and sensible and restrained submissions on behalf of Mr Sherwin, that four matters ought particularly to be taken into account by this court and that the sentence was manifestly too long. The first point he makes is that the admission by the husband was of one breach; that is to say, attending at the house contrary to the order; secondly, that he pleaded guilty by his admission and it was not necessary for the wife to give evidence on that matter, and that the maximum sentence ought to be reserved for much more serious incidents than attending at the house, despite a serious and flagrant breach. The judge was wrong in principle, that having warned the husband that he would receive two years' imprisonment on the next occasion, he thereby fettered his discretion in the sentence to imposed in breach of injunction cases and he should have exercised his discretion on the facts before him on 24th February and not felt obliged to follow the warning that he had given on the previous occasion.[9]It is in dispute in this case as to whether the wife encouraged him to return home or was unable to prevent him from doing so. There is no doubt that he had no right to be at the house. As I have already said, his disobedience was flagrant and persistent.[10]There are two matters which the court has to take into account principally in looking at contempt proceedings, where the breaches are proved. One is the protection of the recipient of the injunction -- in this case the wife -- she is entitled to the protection of that injunction and breaches of that protection are a serious failure of that protection. Secondly and quite separately, this is disobedience to the authority of the court, and the court has an obligation to make certain that its authority is not flouted. Where there is disobedience of the order, which is persistent and flagrant over a considerable period of time -- we are talking about February 2003 and this all started in December 2001 -- the court has its own duty to sentence for the contempt of court.[11]The judge's warning was appropriate, although I would just wonder whether he was wise to say that he would give the maximum sentence. He might have been better advised to say that, having given 12-months previously and then had the husband in prison over Christmas, on the next occasion he would be likely to be more severe, and remind the husband that the powers of the judge in civil proceedings to deal with contempt made it possible that he could give a sentence of up to two years. I do think that the judge was unwise to give the two year warning as that was the inevitable sentence. In my judgment, Mr Anderson is right to raise the fact that it does look as though the judge felt that he was obliged to give the sentence that he had said he would give on a previous occasion. In my judgment, he appeared at least to fetter his discretion as to the appropriate sentence. In that he erred.[12]I also take the view that Mr Anderson is right that the admission by the husband was to one incident. That incident was in many ways overlaid by the violent exchange between the husband and wife that appears to have sent the wife to hospital to have stitches and sent the husband to hospital for two major operations. It seems clear that the assaults by the husband on the wife, to which he has now pleaded guilty, were inevitably going to colour the whole situation before the judge on 24th February.[13]If one, however, disentangles the attendance at the house from the assaults and looks at them in isolation, but against the background of persistent disobedience to court orders, a somewhat different approach might have been and in my judgment should have been that of the judge. When the husband was sentenced to 12 months for 14 breaches, including assaults, that was a sentence which I would agree was unimpeachable, although possibly on the severe side but unimpeachable. The husband did not appeal it. On 24th February there were two considerations, a flagrant breach within seven days of the judge releasing him from prison by which he went to the house. That was the only matter upon which he was being sentenced. The breach had to be seen against the background of previous offending.[14]For my part, on that breach, bearing in mind the persistent disobedience, a sentence of nine months would have been the appropriate sentence, which would reflect the disapproval of the court for committing a further breach within seven days of being at the court, and for the persistence of the earlier disobedience. In my judgment, two years was too high a sentence for that incident, although if the judge had dealt with the assaults on that occasion such a sentence might have been very much in the mind of the judge.[15]I am concerned about the way in which this case came up on 24th February. I have no doubt that the judge was in considerable difficulties. He was sitting as a family judge in the county court. The wife by then had been charged in relation to her knifing the husband. We are not told if the husband by then had been charged with the assaults on the wife. We do not have that information. He was in hospital for a month. During that period there was a police guard in the ward or in the side ward where he was recovering.[16]The judge had, it seems to me, a number of different possibilities. Either he could sentence for the attendance on 20th January, in which case, as I have already said, the sentence that he gave was disproportionate. If he had sentenced, as in my judgment he should have done, to nine months, the man would have been let out after four and a half months. If the assaults were to be the subject of prosecution, it was quite possible that the CPS might not have been able to get to trial by that time. But on release or prior to release it would have been possible for the police to seek that he should not be on bail and for the magistrates to consider whether or not he should be bailed on those assault charges, if indeed by then they had been brought. It would have been possible in respect of the matters, about which we have no details today, that he might have been kept in custody until the hearing of the criminal offences and that time would have been taken into account on his sentence. It might -- I say this with some diffidence because I recognise the difficulties the judge faced -- have been better to have grasped the nettle, and for the judge on 24th February to have dealt with the whole case. He would then have dealt with the assaults as well as the attendance at the house. If he had dealt with the assaults and given an appropriate sentence for what were much more serious breaches, such a sentence could have been taken into account if a criminal court dealt with it later. As it happens, Judge Yelton is trying the criminal case on 28th November. But if this case had not come on appeal one would have had this situation, that the judge had sentenced for the attendance at the house on 20th January and given the maximum contempt of court sentence and then was going to be dealing with the much more serious part of the incident of 20th January on 28th November, this time in the Crown Court. I have my doubts as to whether that is a satisfactory way of dealing with one extremely serious occasion in domestic violence proceedings. It does underline the importance of a serious rethink as to how these sad and worrying cases, where one partner or spouse is violent to the other and repeatedly disobeys orders of the court, how those cases should be tried, either in the criminal or in the family courts. This moving between one court and another as demonstrated in this case, and other cases that have come before the Court of Appeal, show clearly the way in which these cases are dealt with.[17]Having made those observations and recognising the difficulty that the judge was in on 24th February, looking at the way in which the court dealt with it on that occasion, I am satisfied that his sentence was disproportionate for the one incident and that we should substitute a sentence of nine months' imprisonment for the sentence of two years.

LORD JUSTICE BROOKE:

[18]I agree. Family law practitioners and judges should familiarise themselves with the recent judgment of this court in Barnet London Borough Council v Hurst [2002] EWCA Civ 1009; [2002] 4 All ER 457. In that case this court was concerned with the appropriateness of a sentence of 9 months' imprisonment imposed by a circuit judge of the county court for the admitted breach of an earlier undertaking by the defendant that he would not commit a number of specified acts of anti social behaviour. On that occasion the court was concerned with issues, including something issues relating to the interface between criminal proceedings and committal proceedings in the county court which have not been raised in the present case, although they might have been.[19]What is more relevant is that the defendant in that case made limited admissions to the county court judge who did not concern herself with the much more serious allegations that underlay the committal application in respect of which criminal proceedings were pending. Despite the limited nature of these admissions the judge sentenced him to nine months' imprisonment. At the end of the judgment, with which Dyson LJ and Simon Brown LJ agreed, I said at paragraph 15:
"So far as Mr Hurst's appeal is concerned, we announced at the end of the hearing that we allowed it to the extent that we substituted a term of three months imprisonment for the nine months ordered by the judge. Even when allowance is made for the fact that this was a serious breach of a court order, the original sentence was manifestly too long for the activities encompassed by the limited admissions he was willing to make"
[20]I also wish to refer to the delays that have been allowed to take place in the conduct of this appeal. This is an appeal in which the liberty of the subject is at stake. Every day when a subject stays in custody for a longer term than the appeal court considers appropriate is a day too long. In the ordinary way, if the appellant's lawyers believe that the staff in the Civil Appeals Office have been too slow in listing this type of appeal for hearing, they must always feel free to make written representations to the office for the attention of the relevant supervising Lord Justice, in this case Thorpe LJ. If for any reason the supervising Lord Justice is away, I will instruct the Civil Appeals Office to refer any such representations to me. In either case a judge of the court will be in a position to assess whether an earlier hearing is desirable in view of the importance the court always attaches to questions relating to the liberty of the subject.[21]In the present case the serious delays were not caused by any omission on the part of the court. They were concerned with delays by the two firms of solicitors who handled the matter, who appear to have dealt with it as if it was a straightforward piece of litigation in the Court of Appeal as opposed to a case in which their client's liberty was at stake. In her judgment, the President has said that the Court of Appeal must tighten up its procedures in this case. The Court of Appeal is considering how to tighten up the procedures by which skeleton arguments and bundles of authorities are being lodged with the court. It may be that the court may decide that in future it will have to visit any default with unpleasant costs consequences. However, those are matters for tomorrow rather than today.[22]For the reasons given by the President with which I agree, I too would allow the appeal and substitute the order that she indicated.

LORD JUSTICE LATHAM: : I agree with both judgments that have just been delivered. Like both of my colleagues, it seems to me that the suspicion must remain in this case that the judge in sentencing the appellant to two years' imprisonment did not sentence him on the basis of what he had admitted but took into account matters which should not have been taken into account, namely the overall seriousness of the consequence of his having returned to the house, namely the assaults and the circumstances surrounding them. Like the President, it seems to me that the judge was confronted with a dilemma as to how to resolve the matter. If he chose, as he did, to deal with the matter simply on the basis of the admissions, then he had to accept that he had to stick rigidly to a sentence which reflected the seriousness of that breach. If there were, as a result, concerns about what might happen in relation to the serious allegations of assault, that he had to accept would have to be dealt within the criminal justice system, with such protection that that might provide to the respondent by way of the magistrates control over whether or not the appellant should have bail. But it may in truth have been better for him to have grasped the nettle, however difficult that might have been, and dealt with the whole of the incident by way of trial, if necessary.

[24]It also seems to me, like the President, that this is a good example of why it is necessary to look with fresh eyes at the way in which these matters are dealt with and to consider whether or not some form of joined up justice cannot be achieved. One particular matter, for example, which arises out of the facts of this case, is that the appellant at the moment awaits sentence for the offences of assault while pre-sentence and psychiatric reports are prepared, which is an example of the fact that the criminal court has available to it a wider variety of sanctions than the family court is provided with. Depending upon the facts, it may be that a wider variety of disposals may at the end of the day be more appropriate than the disposal available when the matter comes before the civil courts when dealing with applications for committal for contempt.[25]For the reasons that have been given, I agree that the appeal should be allowed to the extent which has been indicated in the President's judgment.

ORDER

Appeal allowed; sentence of two years' imprisonment set aside and substituted with a sentence of nine months' imprisonment; injunction in the terms previously imposed for 12 months from today with power of arrest; transcript to be provided at public expense.